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HomeMy WebLinkAbout050 - 04/17/2001 - AUTHORIZING THE ISSUANCE OF DDA TAX INCREMENT REVENUE REFUNDING BONDS IN THE AGGREGATE PRINCIPAL AMO r ORDINANCE NO. 50, 2001 AN ORDINANCE AUTHORIZING THE ISSUANCE OF CITY OF FORT COLLINS, COLORADO, DOWNTOWN DEVELOPMENT AUTHORITY TAX INCREMENT REVENUE REFUNDING BONDS, SERIES 2001, DATED APRIL 1, 2001, IN THE AGGREGATE PRINCIPAL AMOUNT OF 53,640.000, FOR THE PURPOSE OF REFUNDING, PAYING AND DISCHARGING CERTAIN OUTSTANDING DOWNTOWN DEVELOPMENT AUTHORITY TAX INCREMENT REVENUE REFUNDING BONDS OF THE CITY, AND PROVIDING FOR THE PLEDGE OF CERTAIN INCREMENTAL AD VALOREM TAX AND SALES AND USE TAX REVENUES TO PAY THE PRINCIPAL OF AND INTEREST ON THE BONDS. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS, COLORADO, THAT: Section 1. Definitions and Construction. A. Definitions. In this Ordinance the following terms have the following respective meanings unless the context hereof clearly requires otherwise: (1) Additional Parity Bonds: any Parity Securities issued after the issuance of the Bonds. (2) Authority: the City of Fort Collins, Colorado, Downtown Development Authority. (3) Average Annual Debt Service Requirements: the aggregate of all Debt Service Requirements (excluding any redemption premiums) due on the Bonds or any other issue of Parity Securities for all Bond Years beginning with the Bond Year in which Debt Service Requirements of the Bonds or such Parity Securities are first payable and ending with the Bond Year in which the last of the Debt Service Requirements are payable, divided by the number of such years. (4) Beneficial Owners: those Persons having beneficial ownership interests in Bonds registered in the name of the Securities Depository or a nominee therefor. (5) Bond Insurance Commitment: the Commitment to Issue a Financial Guaranty Insurance Policy, dated March 16, 2001, from the Bond Insurer to the City. (6) Bond Insurance Policy: the Financial Guaranty Insurance Policy issued by the Bond Insurer pursuant to the Bond Insurance Commitment guaranteeing the payment of the principal of and interest on the Bonds. (7) Bond Insurer: MBIA Insurance Corporation, a stock insurance company incorporated under the laws of the State of New York, in its capacity as insurer of the Bonds or any successor to its function as issuer of the Bond Insurance Policy. (8) Bond Purchase Agreement: the Bond Purchase Agreement. dated April 10, 2001, between the City and the Purchaser. (9) Bond Year: the twelve (12) months commencing on the second day of December of any calendar year and ending on the first day of December of the next succeeding calendar year. (10) Bonds: the City of Fort Collins, Colorado, Downtown Development Authority Tax Increment Revenue Refunding Bonds, Series 2001, dated April 1, 2001, in the aggregate principal amount of$3,640,000. (11) Charter: the Home Rule Charter of the City, as amended. (12) Li -: the City of Fort Collins, Colorado. (13) Combined Average Annual Debt Service Requirements: the sum of the Average Annual Debt Service Requirements for all issues of Parity Securities for which the computation is being made. (14) Commercial Bank: a state or national bank or trust company which is a member of the Federal Deposit Insurance Corporation and of the Federal Reserve System, that has a combined capital and surplus of$75,000,000 or more, or such lesser amount as may be approved by the Bond Insurer, and that is located within the United States of America. (15) Council: the governing body of the City. (16) Debt Service Requirements: the principal of, interest on and any premium due in connection with the redemption of the Bonds, any Additional Parity Bonds, any Parity Securities or any other securities payable from the Tax Increment Revenues. (17) Development and Expense Fund: the special fund created in Ordinance No. 142, 1985, of the City, designated therein as the 'Development Account" 2 of the "City of Fort Collins. Colorado, Downtown Development Authority Tax Increment Bonds, Bond Fund" and referred to in Section 5A hereof. (18) District: the area referred to in the Plan of Development and described in Ordinance No. 46, 1981. of the City, as amended by Ordinance No. 162. 1981, of the City and Ordinance No. 2, 1983, of the City. (19) Downtown Development Authority Act: part 8 of article 25 of title 31, Colorado Revised Statutes, as amended. (20) Escrow Agreement: the Escrow Agreement, dated as of April 1, 2001, between the City and the Escrow Bank. (21) Escrow Bank: The Bank of Cherry Creek,N.A., or its successors. (22) Escrow Fund: the special fund created in Section 5A hereof. (23) Event of Default: one of the events described in Section 1 OA hereof. (24) Excess Investment Earnings: the aggregate of the amounts computed as of each installment computation date, consisting of the excess of: (a) the amounts earned on investments (other than in tax-exempt obligations) of gross proceeds of the Bonds held in the Escrow Fund, the Development and Expense Fund, the Tax Increment Fund, the Tax Increment Principal and Interest Account (if the amounts earned exceed $100,000), the Tax Increment Reserve Account, the Sales and Use Tax Fund, the Sales and Use Principal and Interest Account (if the amounts earned exceed $100,000) and the Sales and Use Tax Reserve Account (but not the Excess Investment Earnings Fund), including unrealized gains or losses upon the retirement of the last Bond, over (b) the amounts that would have been earned on such investments at the yield on the Bonds determined on a present value basis from the date of issuance of the Bonds without adjustment for costs of issuance. Notwithstanding the provisions of this Section 1 A(24), the City shall construe the term Excess Investment Earnings in conformity with all applicable federal statutes and regulations as the same may be amended from time to time. (25) Excess Investment Earnings Fund: the special fund created in Section 5M hereof. 3 (26) Federal Securities: bills, certificates of indebtedness, notes. bonds or similar securities that are direct obligations of the United States of America or are obligations the principal and interest of which are unconditionally guaranteed by the United States of America. (27) Fiscal Year: the twelve (12) months commencing on the first day of January of any calendar year and ending on the last day of December of such calendar year or such other twelve-month period as may from time to time be designated by the Council as the Fiscal Year of the City. (28) Guaranty Agreement: the Financial Guaranty Agreement, dated as of May 1, 2001, between the City and the Bond Insurer. (29) Independent Accountant: any certified public accountant, or any firm of such accountants, duly licensed to practice and practicing as such under the laws of the State, appointed and paid by the City, who or which (a) is, in fact, independent and not under the domination of the City or the Council, (b) does not have any substantial interest, direct or indirect, in any of the affairs of the City, and (c) is not connected with the City as a member, officer or employee of the Council, but who may be regularly retained to make annual or similar audits of any books or records of the City. (30) Insurance Paying Agent: State Street Bank and Trust Company, N.A., in New York, New York, or its successors under the Bond Insurance Policy. (31) Interest Payment Date: a date designated by ordinance for the payment of interest on the Bonds or any other designated security. (32) Investment Earnings: all income derived from the investment of the Tax Increment Revenues or any proceeds of the Bonds deposited in the Development and Expense Fund, the Tax Increment Principal and Interest Account or the Tax Increment Reserve Account to the extent not subject to federal arbitrage rebate requirements. (33) Letter of Representations: the Blanket Issuer Letter of Representations, dated April 1, 2001, from the City to the Securities Depository. (34) Maturity Date: a date designated by ordinance for the payment at maturity of principal of the Bonds or any other designated security. (35) MSRB: the Municipal Securities Rulemaking Board. 4 (36) 1983 Tax Increment Revenue Bond Anticipation Notes: the City of Fort Collins, Colorado, Downtown Development Authority Tax Increment Bond Anticipation Notes, Series April 1, 1983, dated April 1, 1983, in the aggregate principal amount of$3,100,000. (37) 1984 Tax Increment Revenue Bonds: the City of Fort Collins. Colorado, Downtown Development Authority Tax Increment Bonds, Series 1984A, dated October 1, 1984,in the aggregate principal amount of$8.200,000. (38) 1985 Tax Increment Revenue Refunding Bonds: the City of Fort Collins, Colorado, Downtown Development Authority Tax Increment Refunding Bonds, Series 1985A, dated November 1, 1985, in the original aggregate principal amount of $8,885,000. (39) 1988 Tax Increment Revenue Refunding and Improvement Bonds: the City of Fort Collins, Colorado, Downtown Development Authority Tax Increment Revenue Refunding and Improvement Bonds, Series 1988, dated May 15, 1988, in the aggregate principal amount of$13,545,000. (40) 1992 Tax Increment Revenue Refunding Bonds: the City of Fort Collins, Colorado, Downtown Development Authority Tax Increment Revenue Refunding Bonds, Series 1992, dated March 15, 1992, in the aggregate principal amount of$11,380,000. (41) NRMSIR: a nationally recognized municipal securities information repository, recognized by the Securities and Exchange Commission pursuant to SEC Rule 15c2-12. (42) Ordinance: this Ordinance No. 50, 2001, of the City. (43) Ordinance No. 58. 1967: Ordinance No. 58, 1967, of the City which provides for the imposition of the initial one percent (1%) sales and use tax within the City. (44) Ordinance No. 140, 1979: Ordinance No. 140, 1979, of the City, which provides for the imposition of the additional one percent (I%) sales and use tax within the City. (45) Ordinance No. 149, 1981: Ordinance No. 149, 1981, of the City, which provides for the imposition of the additional twenty-five hundredths percent (.25%) sales and use tax within the City. 5 (46) Outstanding or outstanding: as of any particular date. the Bonds. any Additional Parity Bonds, any Parity Securities or any such other securities payable in whole or in part from the Tax Increment Revenues that have been authorized. executed and delivered, except the following: (a) Any Bond, Additional Parity Bond, Parity Security or other security cancelled by the City, by the Paying Agent or otherwise on behalf of the City on or before such date; (b) Any Bond, Additional Parity Bond, Parity Security or other security held by or on behalf of the City; (c) Any Bond, Additional Parity Bond, Parity Security or other security of the City for the payment or the redemption of which moneys or Federal Securities sufficient (including the known minimum yield available for such purpose from Federal Securities in which such amount wholly or in part may be initially invested)to meet all of the Debt Service Requirements of such Bond, Additional Parity Bond, Parity Security or other security to the Maturity Date or specified Redemption Date thereof shall have theretofore been deposited in escrow or in trust with a Trust Bank for that purpose; and (d) Any lost, destroyed, or wrongfully taken Bond, Additional Parity Bond, Parity Security or other security of the City in lieu of or in substitution for which another bond or other security shall have been executed and delivered. (47) Owner: the holder of any bearer instrument or registered owner of any registered instrument. (48) Parity Securities: bonds, warrants, notes, securities, leases or other contracts evidencing borrowings and payable from the Tax Increment Revenues equally or on a parity with the Bonds. (49) Participants: underwriters, securities brokers or dealers, banks, trust companies, closing corporations or other Persons for whom or which the Securities Depository holds the Bonds. (50) Paving Agent: the Financial Officer of the City, or his successors. (51) Permitted Investments: any of the obligations specified in the Bond Insurance Commitment permitted by the ordinances of the City and, to the extent applicable, the laws of the State. 6 (52) Person: any individual, firm. partnership, corporation, company. association,joint-stock association, or body politic or any trustee, receiver, assignee, or other similar representative thereof. (53) Plan of Development: the plan approved by Resolution No. 81- 129 of the City, as amended. (54) Pledged Revenues: the Tax Increment Revenues, the Investment Earnings and the Sales and Use Tax Revenues. (55) Preliminary Official Statement: the Preliminary Official Statement, dated March 29, 2001, relating to the Bonds. (56) Prior Sales and Use Tax Revenue Bonds: the City of Fort Collins, Colorado, Sales and Use Tax Revenue Refunding Bonds, Series 1993, dated June 1, 1993, in the original aggregate principal amount of$26,210,000. (57) Property Tax Base Dates: September 15, 1980, with respect to the District described in Ordinance No. 46, 1981, of the City; September 15, 1981, with respect to the area added to the District by Ordinance No. 162, 1981, of the City; September 15, 1982, with respect to the area added to the District by Ordinance No. 2, 1983, of the City. (58) Purchaser: U.S. Bancorp Piper Jaffray Inc. (59) Redemption Date: the date fixed for the redemption prior to maturity of any designated securities payable from the Tax Increment Revenues in any notice of prior redemption given by or on behalf of the City. (60) Refunded Bonds: the 1992 Tax Increment Revenue Refunding Bonds maturing from June 1, 2001, through December 1, 2004, and on June 1, 2007. (61) Refunding Act: part 1 of article 56 of title 11, Colorado Revised Statutes, as amended. (62) Registrar: the Financial Officer of the City, or his successors. (63) Regular Record Date: the fifteenth day of the calendar month next preceding an Interest Payment Date for the Bonds. 7 (64) Sales and Use Tax Fund: the special fund created in Ordinance No. 87, 1981. of the City, designated therein as the "City of Fort Collins, Colorado. Sales and Use Tax Fund" and referred to in Section 5F hereof. (65) Sales and Use Tax Principal and Interest Account: the special fund created in Ordinance No. 87, 1981, of the City, designated therein as the "City of Fort Collins, Colorado, Sales and Use Tax Revenue Bonds, Principal and Interest Account" and referred to in Section 5G hereof. (66) Sales and Use Tax Reserve Account: the special fund created in Ordinance No. 87, 1981, of the City, designated therein as the "City of Fort Collins, Colorado, Sales and Use Tax Revenue Bonds, Reserve Account" and referred to in Section 5H hereof. (67) Sales and Use Tax Revenues: all revenues derived in each Fiscal Year from the imposition of the sales and use tax established by Ordinance No. 58, 1967, Ordinance No. 140, 1979, and Ordinance No. 149, 1981, upon sales and purchases of tangible personal property at retail and storage, use, distribution and consumption of tangible personal property purchased or acquired at retail, within the City, in the percentages set forth in such ordinances, less any collection expense allowance retained by the retailer or vendor,plus all income or gain, if any, from any investment of such revenues and of the proceeds of Securities payable therefrom (except any income or gain from investment of the proceeds of Securities deposited in an escrow account for the payment of refunded Securities) to the extent not subject to federal arbitrage rebate requirements. (68) Securities Depository: The Depository Trust Company, a limited purpose trust company organized under the laws of the State of New York. (69) Security or Securities: any bond or bonds issued by the City or any other evidence of the advancement of money to the City. (70) SID: the state information depository for the State, if any, recognized by the Securities and Exchange Commission pursuant to SEC Rule 15c2-12. (71) Special Record Date: the date fixed by the Paying Agent for the determination of ownership of Bonds for the purpose of paying interest not paid when due or interest accruing after maturity. (72) State: the State of Colorado. 8 (73) Subordinate Bonds or Subordinate Securities: bonds or securities payable from the Tax Increment Revenues having a lien thereon subordinate or junior to the lien thereon of the Bonds. (74) Superior Bonds or Superior Securities: bonds or securities payable from the Tax Increment Revenues having a lien thereon superior or senior to the lien thereon of the Bonds. (75) Surety Bond: the Debt Service Reserve Surety Bond issued by the Bond Insurer pursuant to the Surety Bond Commitment guaranteeing certain payments into the Tax Increment Reserve Account as provided and subject to the limitations set forth therein. (76) Surety Bond Commitment: the Commitment to Issue a Debt Service Reserve Surety Bond, dated March 16, 2001, from the Bond Insurer to the City. (77) Tax Increment Fund: the special fund created in Ordinance No. 142, 1985, of the City designated therein as the "City of Fort Collins, Colorado, Downtown Development Authority Tax Increment Bonds, Bond Fund" and referred to in Section 5B hereof. (78) Tax Increment Principal and Interest Account: the special fund created in Ordinance No. 142, 1985, of the City, designated therein as the "Principal and Interest Account" of the "City of Fort Collins, Colorado, Downtown Development Authority Tax Increment Bonds, Bond Fund" and referred to in Section 5C hereof. (79) Tax Increment Reserve Account: the special fund created in Ordinance No. 142, 1985, of the City, designated therein as the "City of Fort Collins, Colorado, Tax Increment Bonds, Reserve Fund" and referred to in Section 5D hereof. (80) Tax Increment Revenues: all revenues derived in each Fiscal Year from the levy of ad valorem taxes at the rate fixed each year by or for each public body having taxing power over all or any portion of the District upon that portion of the valuation for assessment of all taxable property within the District and the boundaries of such public body that is in excess of the valuation for assessment of all taxable property within the District and the boundaries of such public body on the Property Tax Base Dates, all in accordance with Section 31-25-807(3)(a)(II) of the Downtown Development Authority Act, less any collection fees lawfully payable to the City or Larimer County, Colorado, for services rendered in connection with the collection of such ad valorem taxes: provided, that in the event of a general reassessment of taxable property in the City, the valuation for assessment of taxable property within the District on the Property Tax 9 Base Dates will be proportionately adjusted as required by the Downtown Development Authority Act or other applicable law. (81) Transfer Age the Financial Officer of the City, or his successors. (82) Trust Bank: a Commercial Bank which is authorized to exercise and is exercising trust powers. (83) 2000 Tax Increment Revenue Bonds: the City of Fort Collins. Colorado, Downtown Development Authority Subordinate Tax Increment Revenue Bonds, Series 2000A, dated March 1, 2000, in the aggregate principal amount of $608,000. B. Construction. This Ordinance, except where the context by clear implication herein otherwise requires, shall be construed as follows: (1) Words in the singular number include the plural, and words in the plural include the singular. (2) Words in the masculine gender include the feminine and the neuter, and when the sense so indicates words of the neuter gender refer to any gender. (3) Articles, sections, subsections, paragraphs and subparagraphs mentioned by number, letter or otherwise correspond to the respective articles, sections, subsections, paragraphs and subparagraphs of this Ordinance so numbered or otherwise so designated. (4) The titles and headlines applied to articles, sections and subsections of this Ordinance are inserted only as a matter of convenience and ease in reference and in no way define or limit the scope or intent of any provisions of this Ordinance. (5) Any inconsistency between the provisions of this Ordinance and those of the Downtown Development Authority Act or the Refunding Act is intended by the Council. To the extent of any such inconsistency the provisions of this Ordinance shall be deemed made pursuant to the Charter and shall supersede to the extent permitted by law the conflicting provisions of the Downtown Development Authority Act or the Refunding Act. 10 Section 2. Recitals. A. Establishment of Authority and Approval of Plan of Development. Pursuant to Ordinance No. 46, 1981, the City has heretofore established the Authority. Pursuant to Resolution 81-129 the City has heretofore approved the Plan of Development. The Plan of Development so approved and thereafter amended contained a provision for division of taxes as authorized by the Downtown Development Authority Act. B. Special Election and Canvass of Returns. At a special election held in the City on Tuesday, June 1, 1982, in accordance with law and pursuant to due notice there was submitted to the qualified electors of the District the following question: Shall the City of Fort Collins issue bonds or otherwise provide for loans, advances or indebtedness from time to time in an amount not to exceed $25,000,000 at a maximum net effective interest rate not to exceed 18 per centum per annum, the use of which shall be to finance capital improvements and capital projects within the parameters of the Plan of Development of the Fort Collins Downtown Development Authority, and irrevocably pledge the special fund into which all of that portion of property taxes in excess of such taxes which are produced by the levy at the rate fixed each year by or for any public body upon the valuation for assessment of taxable property within the boundaries of the District last certified prior to the effective date of approval by the Fort Collins City Council of the Plan of Development of the Downtown Development Authority or, as to an area later added to the boundaries of the District, the effective date of the modification of the Plan of Development from which special fund shall be paid the principal of, the interest on, and any premiums due in connection with the bonds of, loans or advances to, or indebtedness incurred by, whether funded, refunded, assumed, or otherwise, the City of Fort Collins for financing or refinancing, in whole or in part, development projects within the boundaries of the Plan for Development area? As evidenced by the canvass of the returns of said election and the Statement and Certificate of Determination of Result thereof made by the Board of Elections of the City on June 4, 1982, a majority of said electors voted affirmatively on said question. C. Previous Bonds. Pursuant to the authority so conferred at said election the City has heretofore issued and sold the 1983 Tax Increment Revenue Bond Anticipation Notes in order to finance capital improvements and capital projects as provided in the Plan of Development. Pursuant to the authority so conferred at said election the City has heretofore issued and sold the 1984 Tax Increment Revenue Bonds in order to refund, pay and discharge the 1983 Tax Increment Revenue Bond Anticipation Notes and finance capital improvements and capital projects as provided in the Plan of Development. Pursuant to the authority so conferred at 11 said election the City has heretofore issued and sold the 1985 Tax Increment Revenue Refunding Bonds in order to refund, pay and discharge the 1984 Tax Increment Revenue Bonds. Pursuant to the authority so conferred at said election the City has heretofore issued and sold the 1988 Tax Increment Revenue Refunding and Improvement Bonds in order to refund. pay and discharge the 1985 Tax Increment Revenue Refunding Bonds and finance capital improvements and capital projects as provided in the Plan of Development. Pursuant to the authority so conferred at said election the City has heretofore issued and sold the 1992 Tax Increment Revenue Refunding Bonds in order to refund, pay and discharge the 1988 Tax Increment Revenue Refunding and Improvement Bonds. Pursuant to the authority so conferred at said election the City has heretofore issued and sold the 2000 Tax Increment Revenue Bonds in order to finance capital improvements and capital projects as provided in the Plan of Development. D. 1992 Tax Increment Revenue Refundiny- Bonds. There is Outstanding of the 1992 Tax Increment Revenue Refunding Bonds the principal amount of$7,570,000, consisting of bonds maturing on the following dates in the following aggregate principal amounts and bearing interest at the following per annum interest rates: Principal Interest Dates Amounts Rates June 1, 2001 $ 395,000 6.20% December 1, 2001 405,000 6.20 June 1, 2002 430,000 6.30 December 1, 2002 445,000 6.30 June 1, 2003 475,000 6.30 December 1, 2003 490,000 6.30 June 1. 2004 520,000 6.40 December 1, 2004 535,000 6.40 December 1, 2006 2,465,000 7.75 June 1, 2007 1,410,000 6.50 The 1992 Tax Increment Revenue Refunding Bonds maturing on December 1, 2006, are not subject to optional redemption prior to their Maturity Date. The 1992 Tax Increment Revenue Refunding Bonds maturing from December 1, 2001, through December 1, 2004, and on June 1, 2007, are subject to optional redemption prior to their respective Maturity Dates, in whole or in part in inverse order of maturity and by lot within a maturity, on June 1, 2001, and on any Interest Payment Date thereafter at a price equal to the principal amount of each 1992 Tax Increment Revenue Refunding Bond so redeemed plus accrued interest thereon to the Redemption Date plus a premium expressed as a percentage of the principal amount of each 1992 Tax Increment Revenue Refunding Bond so redeemed, depending on the Redemption Date, as follows: 12 Redemption Date Premium June 1, 2001, and December 1. 2001 1% June 1, 2002, and Thereafter None The City desires to refund, pay and discharge the Refunded Bonds for the purpose of reducing the net effective interest rate; reducing the total principal and interest payable or the principal and interest payable in any particular year or years, or effecting other economies; modifying or eliminating restrictive contractual limitations; or any combination of the foregoing. E. Authority. Pursuant to art. XX, §6 of the Colorado Constitution. Art. V. Sections 19.3, 19.4 and 19.8 of the Charter, the Downtown Development Authority Act and the Refunding Act, the City is authorized by Council action and without an election to issue the Bonds for the purpose of refunding, paying and discharging the Refunded Bonds. Pursuant to art X, Sec. 20(4)(b) of the State Constitution, the Bonds may be issued without voter approval for the purpose of refinancing the Refunded Bonds at a lower interest rate. Section 3. The Bonds. A. Authorization. The Bonds are hereby authorized to be issued to refund, pay and discharge the Refunded Bonds and to pay the costs of issuing the Bonds. B. Bond Details. (1) Generally. The Bonds shall be issuable in fully registered form and shall initially be registered in the name of the Securities Depository or a nominee therefor. Purchases by Beneficial Owners shall be made in book-entry form in the principal amount of$5,000 or any integral multiple thereof. The Beneficial Owners shall not receive certificates evidencing their interests in the Bonds. No Bond shall be issued in any denomination larger than the aggregate principal amount maturing on the Maturity Date of such Bond, and no Bond shall be made payable on more than one Maturity Date. The Bonds shall be initially issued so that a single Bond shall evidence the obligation of the City to pay all principal due on each of the Maturity Dates set forth herein. Pursuant to the recommendations of the Committee on Uniform Security Identification Procedures, CUSIP numbers may be printed on the Bonds. The Bonds shall mature on the following dates in the following aggregate principal amounts and shall bear interest from April 1, 2001, or the Interest Payment Dates to which interest has been paid next preceding their respective dates, whichever is later, to their respective Maturity Dates, except if redeemed prior thereto, at the rate of 4.00%per annum: 13 Principal Dates Amounts December 1, 2001 $245.000 June 1, 2002 495.000 December 1, 2002 510,000 June 1, 2003 535,000 December 1, 2003 545,000 June 1, 2004 570,000 December 1, 2004 580,000 June 1, 2005 40.000 December 1, 2005 40,000 June 1, 2006 40,000 December 1, 2006 40,000 Said interest shall be payable on December 1, 2001, and semiannually thereafter on the first day of June and the first day of December of each year. If upon presentation at maturity the principal of any Bond is not paid as provided herein, interest shall continue thereon at the same interest rate until the principal is paid in full. The Debt Service Requirements of the Bonds shall be payable in lawful money of the United States of America to the Owners of the Bonds by the Paying Agent. The principal and the final installment of interest shall be payable to the Owner of each Bond upon presentation and surrender thereof at maturity, by check or draft mailed to such Owner at the address appearing on the registration books of the City maintained by the Registrar or by wire transfer to such bank or other depository as the Owner shall designate in writing to the Paying Agent. Except as hereinbefore and hereinafter provided, the interest shall be payable to the Owner of each Bond determined as of the close of business on the Regular Record Date, irrespective of any transfer of ownership of the Bond subsequent to the Regular Record Date and prior to the Interest Payment Date, by check or draft or wire transfer directed to such Owner as aforesaid. Any interest not paid when due and any interest accruing after maturity shall be payable to the Owner of each Bond entitled to receive such interest determined as of the close of business on the Special Record Date, irrespective of any transfer of ownership of the Bond subsequent to the Special Record Date and prior to the date fixed by the Paying Agent for the payment of such interest, by check or draft or wire transfer directed to such Owner as aforesaid. Notice of the Special Record Date and of the date fixed for the payment of such interest shall be given by sending a copy thereof by certified or registered first-class, postage prepaid mail, at least fifteen (15) days prior to the Special Record Date, to the Owner of each Bond upon which interest will be paid determined as of the close of business on the day preceding such mailing at the address appearing on the registration books of the City. If the date for making or giving any payment, determination or notice described herein is 14 a Saturday, Sunday, legal holiday or any other day on which the office of the Paying Agent or Registrar is authorized or required by law to remain closed, such payment, determination or notice shall be made or given on the next succeeding day which is not a Saturday, Sunday, legal holiday or other day on which the office of the Paying Agent or Registrar is authorized or required by law to remain closed. So long as the Owner of any Bond is the Securities Depository or a nominee therefor, the Securities Depository shall disburse any payments received, through its Participants or otherwise, to the Beneficial Owners. Neither the City nor the Paying Agent shall have responsibility or obligation for the payment to any Participant, any Beneficial Owner or any other person (except an Owner of Bonds) of the Debt Service Requirements of the Bonds. (2) Payments under the Bond Insurance Policy. In the event that, on the second business day, and again on the business day, prior to any Interest Payment Date on the Bonds, the Paying Agent has not received sufficient moneys to pay all principal of and interest on the Bonds due on the second following or following, as the case may be, business day, the Paying Agent shall immediately notify the Bond Insurer or its designee on the same business day by telephone or telegraph, confirmed in writing by registered or certified mail, of the amount of the deficiency. If the deficiency is made up in whole or in part prior to or on the Interest Payment Date, the Paying Agent shall so notify the Bond Insurer or its designee. In addition, if the Paying Agent has notice that any Owner of Bonds has been required to disgorge payments of principal or interest on the Bonds to a trustee in bankruptcy or creditors or others pursuant to a final judgment by a court of competent jurisdiction that such payment constitutes an avoidable preference to such Owner within the meaning of any applicable bankruptcy laws, then the Paying Agent shall notify the Bond Insurer or its designee of such fact by telephone or telegraphic notice, confirmed in writing by registered or certified mail. The Paying Agent is hereby irrevocably designated, appointed, directed and authorized to act as attorney-in-fact for the Owners of the Bonds as follows: If and to the extent there is a deficiency in amounts required to pay interest on the Bonds, the Paying Agent shall execute and deliver to the Insurance Paying Agent, in form satisfactory to the Insurance Paying Agent, an instrument appointing the Bond Insurer as agent for the Owners of such Bonds in any legal proceeding related to the payment of such interest and an assignment to the Bond Insurer of the claims for interest to which such deficiency relates and that are paid 15 by the Bond Insurer, shall receive as designee of the respective Owners of Bonds (and not as Paying Agent) in accordance with the tenor of the Bond Insurance Policy payment from the Insurance Paying Agent with respect to the claims for interest so assigned, and shall disburse the same to such respective Owners; and If and to the extent of a deficiency in amounts required to pay principal of the Bonds, the Paying Agent shall execute and deliver to the Insurance Paying Agent, in form satisfactory to the Insurance Paying Agent, an instrument appointing the Bond Insurer as agent for the Owners of such Bonds in any legal proceeding relating to the payment of such principal and an assignment to the Bond Insurer of any of the Bonds surrendered to the Insurance Paying Agent of so much of the principal amount thereof as has not previously been paid or for which moneys are not held by the Paying Agent and available for such payment (but such assignment shall be delivered only if payment from the Insurance Paying Agent is received), shall receive as designee of the respective Owners of Bonds (and not as Paying Agent) in accordance with the tenor of the Bond Insurance Policy payment therefor from the Insurance Paying Agent and shall disburse the same to such Owners. Payments with respect to claims for interest on and principal of Bonds disbursed by the Paying Agent from proceeds of the Bond Insurance Policy shall not be considered to discharge the obligation of the City with respect to such Bonds, and the Bond Insurer shall become the Owner of such unpaid Bonds and claims for the interest in accordance with the tenor of the assignment made to it under the provisions hereof or otherwise. Irrespective of whether any such assignment is executed and delivered, the City and the Paying Agent hereby agree for the benefit of the Bond Insurer as follows: The City and the Paying Agent recognize that to the extent the Bond Insurer makes payments, directly or indirectly (as by paying through the Paying Agent), on account of principal of or interest on the Bonds, the Bond Insurer shall be subrogated to the rights of the Owners of such Bonds to receive the amount of such principal and interest from the City, with interest thereon as provided and solely from the sources stated in this Ordinance and the Bonds. The City and the Paying Agent shall accordingly pay to the Bond Insurer the amount of such principal and interest (including principal and interest recovered under subparagraph (ii) of the first paragraph of the Bond Insurance Policy, which principal and interest shall be deemed past due and not to have been paid), with interest thereon as provided in this Ordinance and the Bonds, but only from the sources and in the manner provided herein for the payment of principal 16 of and interest on the Bonds to Owners thereof. and will otherwise treat the Bond Insurer as the Owner of such unpaid Bond and the rights to the amount of such principal and interest. In connection with the issuance of Additional Parity Bonds or Subordinate Bonds, the City shall deliver to the Bond Insurer a cop),of the disclosure document, if any, circulated with respect to such Additional Parity Bonds or Subordinate Bonds. Copies of any amendments made to the documents executed in connection with the issuance of the Bonds which are consented to by the Bond Insurer shall be sent to Moody's Investors Service, Inc. and Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. The Bond Insurer shall receive notice of the resignation or removal of the Paying Agent and the appointment of a successor thereto. The Bond Insurer shall receive copies of all notices required to be delivered to Owners of Bonds and copies of the City's audited financial statements, on an annual basis, and copies of the City's biannual budget. Any notice that is required to be given to an Owner of Bonds or to the Paying Agent pursuant to this Ordinance shall also be provided to the Bond Insurer. All notices required to be given to the Bond Insurer under this Ordinance shall be given as provided in Section 12G hereof. (3) Redemption. The Bonds shall not be subject to optional redemption prior to their respective Maturity Dates. (4) Interest Rates. The maximum net effective interest rate for the Bonds is 18% per annum. The weighted average interest rate of the Refunded Bonds is 6.4158% per annum. The net effective interest rate of the Bonds is 3.7678108% per annum. (5) Execution and Authentication. The Bonds shall be executed by and on behalf of the City with the facsimile or manual signature of the Mayor, shall bear a facsimile or manual impression of the seal of the City, shall be attested with the facsimile or manual signature of the City Clerk, shall be countersigned with the facsimile or manual signature of the Financial Officer and shall be authenticated with the manual signature of the Registrar. Should any officer whose facsimile or manual signature appears on the Bonds cease to be such officer before delivery of the Bonds to the Purchaser, such facsimile or manual signature shall nevertheless be valid and sufficient for all purposes. No Bond shall be valid or become obligatory for any purpose or be entitled to any 17 security or benefit under this Ordinance unless and until the certificate of authentication on such Bond shall have been duly executed by the Registrar, and such executed certificate upon any such Bond shall be conclusive evidence that such Bond has been authenticated and delivered under this Ordinance. (6) Registration. Transfer and Exchange. Upon their execution and authentication and prior to their delivery the Bonds shall be registered for the purpose of payment of principal and interest by the Registrar. Initially, each Bond shall be registered in the name of the Securities Depository or a nominee therefor. Except as hereinafter provided, all of the Bonds shall continue to be registered in the name of the Securities Depository or a nominee therefor. To the extent that typewritten Bonds, rather than printed Bonds, are to be delivered, such modifications to the form of Bond as may be necessary or desirable in such case are hereby authorized and approved. There shall be no substantive change to the terms and conditions set forth in the form of Bond, except as otherwise authorized by this Ordinance or any amendment thereto. Neither the City nor the Registrar shall have any responsibility or obligation with respect to the accuracy of the records of the Securities Depository or a nominee therefor or any Participant regarding any ownership interest in the Bonds or the delivery to any Participant, Beneficial Owner or any other person (except an Owner of Bonds) of any notice with respect to the Bonds. The Bonds shall be transferable only upon the registration books of the City by the Transfer Agent at the request of the Owner thereof or his, her or its duly authorized attorney-in-fact or legal representative. A Bond may be transferred upon surrender thereof together with a written instrument of transfer duly executed by the Owner or his, her or its duly authorized attorney-in-fact or legal representative with guaranty of signature satisfactory to the Transfer Agent, containing written instructions as to the details of the transfer, along with the social security number or federal employer identification number of the transferee and, if the transferee is a trust, the names and social security numbers of the settlors and the beneficiaries of the trust. The Owner of any Bond or Bonds may also exchange such Bond or Bonds for another Bond or Bonds of authorized denominations. Transfers and exchanges shall be made without charge, except that the Transfer Agent may require payment of a sum sufficient to defray any tax or other governmental charge that may hereafter be imposed in connection with any transfer or exchange of Bonds. No transfer of any Bond shall be effective until entered on the registration books of the City. In the case of every transfer or exchange, the Transfer Agent shall deliver to the new Owner a new Bond or Bonds of the same aggregate principal amount, maturing in the same year and bearing interest at the same per annum interest rate as the Bond or Bonds surrendered. Such Bond or Bonds shall be dated as of their date of authentication. New Bonds delivered upon any transfer or exchange shall be valid obligations of the City, evidencing the same obligation as the Bonds surrendered, 18 shall be secured by this Ordinance, and shall be entitled to all of the security and benefits hereof to the same extent as the Bonds surrendered. The City may deem and treat the Person in whose name any Bond is last registered upon the books of the City as the absolute owner thereof for the purpose of receiving payment of the Debt Service Requirements of such Bond and for all other purposes, and all such payments so made to such Person or upon his, her or its order shall be valid and effective to satisfy and discharge the liability of the City upon such Bond to the extent of the sum or sums so paid, and the City shall not be affected by any notice to the contrary. Upon the occurrence of an Event of Default which would require payment by the Bond Insurer under the Bond Insurance Policy, the Bond Insurer and its designated agents shall be afforded access to the registration books of the City. Neither the City nor the Transfer Agent shall have any responsibility or obligation with respect to the accuracy of the records the Securities Depository or its Participants regarding any ownership interest in the Bonds or transfers thereof. (7) Resignation or Removal of Agents. If the Paying Agent, Registrar, Transfer Agent or Escrow Bank shall resign as such, or if the City shall reasonably determine that the Paying Agent, Registrar, Transfer Agent or Escrow Bank has become incapable of fulfilling its duties hereunder or under the Escrow Agreement, as the case may be, the City may, upon notice mailed to the Bond Insurer and to each Owner of Bonds at the addresses lat shown on the registration books of the City, accept the resignation of the Paying Agent, Registrar, Transfer Agent or Escrow Bank and appoint a successor paying agent, registrar, transfer agent or escrow bank. Every such successor paying agent, registrar, transfer agent or escrow bank shall be a Trust Bank unless otherwise approved in writing by the Bond Insurer. It shall not be required that the same institution serve as paying agent, registrar, transfer agent or escrow bank.. but the City shall have the right to have the same institution serve as paying agent, registrar, transfer agent or escrow bank. Any such resignation or removal shall become effective only upon the appointment of a successor and acceptance by the successor of its duties hereunder or under the Escrow Agreement, as the case may be. (8) Resignation or Removal of Securities Depositorv. The City may remove the Securities Depository and the Securities Depository may resign by giving sixty (60) days' written notice to the other of such removal or resignation. Additionally, the Securities Depository shall be removed sixty (60) days after receipt by the City of written notice from the Securities Depository to the effect that the Securities Depository has received written notice from Participants having interests, as shown in the records of the Securities Depository, in an aggregate principal amount of not less than fifty percent (50%) of the aggregate principal amount of the then Outstanding Bonds to the effect that the Securities Depository is unable or unwilling to discharge its responsibilities or a 19 continuation of the requirement that all of the Outstanding Bonds be registered in the name of the Securities Depository or a nominee therefor is not in the best interests of the Beneficial Owners. Upon the removal or resignation of the Securities Depository. the Securities Depository shall take such action as may be necessary to assure the orderly transfer of the computerized book-entry system with respect to the Bonds to a successor securities depository or, if no successor securities depository, is appointed as herein provided, the transfer of the Bonds in certificate form to the Beneficial Owners or their designees. Upon the giving of notice by the City of the removal of the Securities Depository, the giving of notice by the Securities Depository of its resignation or the receipt by the City of notice with respect to the written notice of Participants referred to herein, the City may, within sixty (60) days after the giving of such notice, appoint a successor securities depository upon such terms and conditions as the City shall impose. Any such successor securities depository shall at all times be a registered clearing agency under the Securities and Exchange Act of 1934, as amended, or other applicable statute or regulation, and in good standing thereunder. If the City fails to appoint a successor securities depository within such time period, the Bonds shall no longer be restricted to being registered in the name of the Securities Depository or a nominee therefor, but may be registered in whatever name or names Owners transferring or exchanging Bonds shall designate. (9) Replacement of Bonds. If any Bond shall have been lost, destroyed or wrongfully taken, the City shall provide for the replacement thereof in the manner set forth and upon receipt of the evidence, indemnity bond and reimbursement for expenses provided in Ordinance No. 80, 1984. (10) Recitals in Bonds. Each Bond shall recite in substance that the Bond is payable solely from the Pledged Revenues and the funds and accounts hereby pledged and that the Bond is not a general obligation of the City and that the full faith and credit of the City is not pledged to pay the Debt Service Requirements of such Bond. Each Bond shall further recite that it is issued under the authority of the Constitution of the State of Colorado, the Charter, the Downtown Development Authority Act, the Refunding Act and this Ordinance. The Refunding Act provides that such recital conclusively imparts full compliance with all of the provisions and limitations thereof and that the Bonds containing such recital are incontestable for any cause whatsoever after their delivery for value. (11) Form of Bonds. The Bonds shall be in substantially the following form: 20 [Form of Bond] UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF LARIMER CITY OF FORT COLLINS DOWNTOWN DEVELOPMENT AUTHORITY TAX INCREMENT REVENUE REFUNDING BOND SERIES 2001 No. R- $ Interest Rate Maturity Date Original Date CUSIP 4.00% 1, April 1, 2001 REGISTERED OWNER: Cede & Co. PRINCIPAL SUM: Thousand Dollars The City of Fort Collins, in the County of Larimer and State of Colorado, for value received, hereby promises to pay to the Registered Owner (specified above), or registered assigns, solely from the special funds provided therefor, as hereinafter set forth, the Principal Sum (specified above), in lawful money of the United States of America, on the Maturity Date (specified above), with interest thereon from the Original Date (specified above), or the interest payment date to which interest has been paid next preceding the date hereof, whichever is later, to the Maturity Date, except if redeemed prior thereto, at the per annum Interest Rate (specified above), payable semiannually on the first day of June and the first day of December of each year, commencing on December 1, 2001, or the first such date after the date hereof, whichever is later, in the manner provided herein. If upon presentation at maturity payment of the Principal Sum of this Bond is not made as provided herein, interest continues at the Interest Rate until the Principal Sum is paid in full. 21 This Bond is not subject to optional redemption prior to the Maturity Date. The principal of and interest on this Bond are payable to the Registered Owner by the Financial Officer of the City, or his successors, as paying agent. The principal and the final installment of interest are payable to the Registered Owner upon presentation and surrender of this Bond at maturity, by check or draft mailed to the Registered Owner at the address appearing on the registration books of the City maintained by the Financial Officer of the City. or his successors, as registrar, or by wire transfer to such bank or other depository as the Registered Owner shall designate in writing to the paying agent. Except as hereinbefore and hereinafter provided, the interest is payable to the Registered Owner determined as of the close of business on the regular record date, which is the fifteenth day of the calendar month next preceding the interest payment date, irrespective of any transfer of ownership hereof subsequent to the regular record date and prior to such interest payment date, by check or draft or wire transfer directed to the Registered Owner as aforesaid. Any interest hereon not paid when due and any interest hereon accruing after maturity is payable to the Registered Owner determined as of the close of business on the special record date, which is to be fixed by the paying agent for such purpose, irrespective of any transfer of ownership of this Bond subsequent to such special record date and prior to the date fixed by the paying agent for the payment of such interest, by check or draft or wire transfer directed to the Registered Owner as aforesaid. Notice of the special record date and of the date fixed for the payment of such interest is to be given by sending a copy thereof by certified or registered first-class postage prepaid mail, at least fifteen (15) days prior to the special record date, to the registered owner of each Bond upon which interest will be paid determined as of the close of business on the day preceding such mailing at the address appearing on the registration books of the City. If the date for making or giving any payment, determination or notice described herein is a Saturday, Sunday, legal holiday or any other day on which the office of the paying agent or registrar is authorized or required by law to remain closed, such payment, determination or notice is to be made or given on the next succeeding day which is not a Saturday, Sunday, legal holiday or other day on which the office of the paying agent or registrar is authorized or required by law to remain closed. So long as the Registered Owner is the securities depository or a nominee therefor, the securities depository is to disburse any payments received, through its participants or otherwise, to the beneficial owner or owners hereof. Neither the City nor the paying agent has any responsibility or obligation for the payment to any participant, any beneficial owner or any other person (except the Registered Owner) of the principal of and interest on this Bond. Neither the City nor the registrar has any responsibility or obligation with respect to the accuracy of the records of the securities depository or a nominee therefor or any participant with respect to any ownership interest in the Bonds or the delivery to any participant, beneficial owner or any other person (except the Registered Owner) of any notice with respect to the Bonds. 22 Payment of the principal of and interest on this Bond is to be made solely from. and as security for such payment there are pledged, pursuant to the Ordinance authorizing the issuance of this Bond, special funds designated as the Tax Increment Fund and the Sales and Use Tax Fund, each including a Principal and Interest Account and a Reserve Account, into which accounts the City has covenanted in the Ordinance to pay, respectively, from the pledged revenues described in the Ordinance sums sufficient to pay when due the principal of and interest on this Bond and any additional parity securities heretofore or hereafter issued and payable from such revenues and to accumulate and maintain a specified reserve for such purposes. It is hereby recited, certified and warranted that for the payment of the principal of and interest on this Bond the City has created and will maintain said special funds and accounts and will deposit therein the required amounts out of the revenues described in the Ordinance and out of said special funds will pay the principal of and interest on this Bond in the manner provided by the Ordinance. The Bonds are equitably and ratably secured by a lien on the pledged revenues, and such Bonds constitute an irrevocable and first lien (but not necessarily an exclusive first lien) upon the pledged tax increment revenues, investment earnings and sales and use tax revenues. Bonds and other types of securities, in addition to the Bonds, subject to expressed conditions, may be issued and made payable from the pledged revenues having a lien thereon subordinate and junior to the lien of the Bonds of this issue or, subject to additional expressed conditions, having a lien thereon on a parity with the lien of Such Bonds in accordance with the provisions of the Ordinance. Except as otherwise expressly provided in this Bond and the Ordinance, the pledged revenues are assigned, pledged and set aside to the payment of the principal of and interest on the Bonds of this issue in anticipation of the collection of the pledged revenues. This Bond is authorized and issued for the purpose of refunding, paying and discharging certain outstanding tax increment revenue refunding bonds pursuant to, by virtue of and in full conformity with the Constitution of the State of Colorado, the City Charter, part 8 of article 25 of title 31, and part 1 of article 56 of title 11, Colorado Revised Statutes, as amended, and all other laws of the State of Colorado thereunto enabling, and pursuant to the Ordinance duly adopted prior to the issuance of this Bond. The foregoing recital conclusively imparts full compliance with all of the provisions and limitations of the last-cited statute, and said statute provides that this Bond is incontestable for any cause whatsoever after its delivery for value. Reference is hereby made to the Ordinance, and to any and all modifications and amendments thereof, for a description of the provisions, terms and conditions upon which the Bonds are issued and secured, including, without limitation, the nature and extent of the security for the Bonds, provisions with respect to the custody and application of the proceeds of the Bonds, the collection and disposition of the revenues and moneys charged with and pledged to the payment of the principal of and interest on the Bonds, the terms and conditions on which the Bonds are issued, a description of the special funds referred to above and the nature and extent of 23 the security and pledge afforded thereby for the payment of the principal of and interest on the Bonds, and the manner of enforcement of said pledge, as well as the rights. duties, immunities and obligations of the City and the members of its Council and also the rights and remedies of the registered owners of the Bonds. To the extent and in the respects permitted by the Ordinance, the provisions of the Ordinance, or any instrument amendatory-thereof or supplemental thereto, may be modified or amended by action of the City taken in the manner and subject to the conditions and exceptions provided in the Ordinance. The pledge of revenues and other obligations of the City under the Ordinance may be discharged at or prior to the maturity of the Bonds upon the making of provision for the payment of the Bonds on the terms and conditions set forth in the Ordinance. It is hereby recited, certified and warranted that all the requirements of law have been fully complied with by the proper officers of the City in the issuance of this Bond; that it is issued pursuant to and in strict conformity with the Constitution and all other laws of the State of Colorado, including the City Charter, and with the Ordinance; that this Bond does not contravene any constitutional or statutory limitation of the State of Colorado or any limitation of the City Charter; and that this Bond is issued under the authority of the Ordinance. This Bond is transferable only upon the registration books of the City by the Financial Officer of the City, or his successors, as transfer agent. at the request of the Registered Owner or his, her or its duly authorized attorney-in-fact or legal representative, upon surrender hereof together with a written instrument of transfer duly executed by the Registered Owner or his, her or its duly authorized attorney-in-fact or legal representative with guaranty of signature satisfactory to the transfer agent, containing written instructions as to the details of the transfer, along with the social security number or federal employer identification number of the transferee and, if the transferee is a trust, the names and social security numbers of the settlors and the beneficiaries of the trust. The Registered Owner may also exchange this Bond for another Bond or Bonds of authorized denominations. Transfers and exchanges are to be made without charge, except that the transfer agent may require payment of a sum sufficient to defray any tax or other governmental charge that may hereafter be imposed in connection with any transfer or exchange of Bonds. No transfer of this Bond is to be effective until entered on the registration books of the City. In the case of every transfer or exchange, the transfer agent is to deliver to the new registered owner a new Bond or Bonds of the same aggregate principal amount, maturing in the same year and bearing interest at the same per annum interest rate as the Bond or Bonds surrendered. Such Bond or Bonds are to be dated as of their date of authentication. The City may deem and treat the person or entity in whose name this Bond is last registered upon the books of the City as the absolute owner hereof for the purpose of receiving payment of the principal of and interest on this Bond and for all other purposes, and all such payments so made to such person or upon his, her or its order will be valid and effective to satisfy and discharge the liability of the City upon this Bond to the extent of the sum or sums so paid, and the City will not be affected by any notice to the contrary. 24 Neither the City nor the transfer agent has any responsibility or obligation with respect to the accuracy of the records of the securities depository or its participants regarding any ownership interest in the Bonds or transfers thereof. The City may remove the securities depository and the securities depository may resign by giving sixty (60) days' written notice to the other of such removal or resignation. Additionally, the securities depository is to be removed sixty (60) days after receipt by the City of written notice from the securities depository to the effect that the securities depository has received written notice from participants having interests, as shown in the records of the securities depository, in an aggregate principal amount of not less than fifty percent (50%) of the aggregate principal amount of the then outstanding Bonds to the effect that the securities depository is unable or unwilling to discharge its responsibilities or a continuation of the requirement that all of the outstanding Bonds be registered in the name of the securities depository or a nominee therefor is not in the best interests of the beneficial owners. Upon the removal or resignation of the securities depository, the securities depository is to take such action as may be necessary to assure the orderly transfer of the computerized book-entry system with respect to the Bonds to a successor securities depository or, if no successor securities depository is appointed as herein provided, the transfer of the Bonds in certificate form to the beneficial owners or their designees. Upon the giving of notice by the City of the removal of the securities depository, the giving of notice by the securities depository of its resignation or the receipt by the City of notice with respect to the written notice by participants referred to herein, the City may, within sixty (60) days after the giving of such notice, appoint a successor securities depository upon such terms and conditions as the City shall impose. Any such successor securities depository must at all times be a registered clearing agency under the Securities and Exchange Act of 1934, as amended, or other applicable statute or regulation and in good standing thereunder. If the City fails to appoint a successor securities depository within such time period, the Bonds are no longer to be restricted to being registered in the name of the securities depository or a nominee therefor, but may be registered in whatever name or names registered owners transferring or exchanging Bonds shall designate. This Bond is a special and limited obligation of the City payable solely out of and secured by an assignment and pledge (but not necessarily an exclusive assignment and pledge) of certain tax increment revenues, certain income derived from the investment of such revenues and of certain bond proceeds and certain sales and use tax revenues of the City, all as more specifically provided in the Ordinance. This Bond does not constitute a debt or an indebtedness of the City within the meaning of any constitutional, charter or statutory provision or limitation of the State of Colorado or of the City. This Bond is not a general obligation of the City, and the full faith and credit of the City is not pledged for the payment of the principal of or interest on this Bond. 25 IN WITNESS WHEREOF, the City has caused this Bond to be executed in its name and on its behalf with the facsimile or manual signature of the Mayor of the City. to be sealed with a facsimile or manual impression of the seal of the City, to be attested with the facsimile or manual signature of the City Clerk of the City and to be countersigned with the facsimile or manual signature of the Financial Officer of the City. CITY OF FORT COLLINS, COLORADO (CITY) By: (Facsimile or Manual Signature) (SEAL) Mayor ATTEST: (Facsimile or Manual Signature) City Clerk Countersigned: (Facsimile or Manual Sie_nature) Financial Officer 26 CERTIFICATE OF AUTHENTICATION This Bond is issued pursuant to the Ordinance herein described. Printed on the reverse side hereof is the complete text of the opinion of bond counsel, Ballard Spahr Andrews & Ingersoll, LLP, Denver, Colorado, a signed copy of which, dated the date of the first delivery of the Bonds herein described, is on file with the undersigned. FINANCIAL OFFICER OF THE CITY OF FORT COLLINS, COLORADO as registrar (Manual Signature) Dated: 27 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this Bond, shall be construed as though they were written out in full according to applicable laws or regulations. TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with the right of survivorship and not as tenants in common UNIF TRANS MIN ACT - Custodian (Cust) (Minor) under Uniform Transfers to Minors Act (State) Additional abbreviations may also be used though not on the above list. 28 STATEMENT OF INSURANCE MBIA Insurance Corporation (the "Insurer") has issued a policy containing the following provisions, such policy being on file with the Financial Officer of the Citv. The Insurer, in consideration of the payment of the premium and subject to the terms of this policy, hereby unconditionally and irrevocably guarantees to any owner, as hereinafter defined, of the following described obligations, the full and complete payment required to be made by or on behalf of the City to the Financial Officer of the City, or his successor (the 'Paying Agent"), of an amount equal to (i) the principal of(either at the stated maturity or by any advancement of maturity pursuant to a mandatory sinking fund payment) and interest on, the Obligations (as that term is defined below) as such payments shall become due but shall not be so paid (except that in the event of any acceleration of the due date of such principal by reason of mandatory or optional redemption or acceleration resulting from default or otherwise, other than any advancement of maturity pursuant to a mandatory sinking fund payment, the payments guaranteed hereby shall be made in such amounts and at such times as such payments of principal would have been due had there not been any such acceleration): and (ii) the reimbursement of any such payment which is subsequently recovered from any owner pursuant to a final judgment by a court of competent jurisdiction that such payment constitutes an avoidable preference to such owner within the meaning of any applicable bankruptcy law. The amounts referred to in clauses (i) and (ii) of the preceding sentence shall be referred to herein collectively as the "Insured Amounts." "Obligations" shall mean: $3,640,000 City of Fort Collins, Colorado Downtown Development Authority Tax Increment Revenue Refunding Bonds Series 2001 Upon receipt of telephonic or telegraphic notice, such notice subsequently confirmed in writing by registered or certified mail, or upon receipt of written notice by registered or certified mail, by the Insurer from the Paying Agent or any owner of an Obligation the payment of an Insured Amount for which is then due, that such required payment has not been made, the Insurer on the due date of such payment or within one business day after receipt of notice of such nonpayment, whichever is later, will make a deposit of funds, in an account with State Street Bank and Trust Company, N.A., in New York, New York, or its successor, sufficient for the payment of any such Insured Amounts which are then due. Upon presentment and surrender of such Obligations or presentment of such other proof of ownership of the Obligations, together with any appropriate instruments of assignment to evidence the assignment of the Insured Amounts due on the Obligations as are paid by the Insurer, and appropriate instruments to effect the appointment of the Insurer as agent for such owners of the Obligations in any legal proceeding related to payment of Insured Amounts on the Obligations, such 29 instruments being in a form satisfactory to State Street Bank and Trust Company. N.A.. State Street Bank and Trust Company, N.A. shall disburse to such owners or the Paving Agent payment of the Insured Amounts due on such Obligations, less any amount held by the Paying Agent for the payment of such Insured Amounts and legally available therefor. This policy does not insure against loss of any prepayment premium which may at any time be payable with respect to any Obligation. As used herein, the tern 'owner" shall mean the registered owner of any Obligation as indicated in the books maintained by the Paying Agent, the City, or any designee of the City for such purpose. The term owner shall not include the City or any party whose agreement with the City constitutes the underlying security for the Obligations. Any service of process on the Insurer may be made to the Issuer at its offices located at 113 King Street, Armonk,New York 10504, and such service of process shall be valid and binding. This policy is non-cancellable for any reason. The premium on this policy is not refundable for any reason including the payment prior to maturity of the Obligations. MBIA Insurance Corporation 30 ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE (Name and Address of Assignee) this Bond and does hereby irrevocably constitute and appoint or his, her or its successors, to transfer this Bond on the books kept for registration thereof. Dated: Signature guaranteed: Eligible Guarantor Institution NOTICE: The signature to this assignment must correspond with the name of the Registered Owner as it appears upon the face of this Bond in every particular without alteration or enlargement or any change whatever. [End of Form of Bond] 31 C. Bonds Equally Secured. The covenants and agreements herein set forth to be performed on behalf of the City shall be for the equal benefit, protection and security of the Owners of the Bonds. all of which, regardless of the time or times of their maturit-NI. shall be of equal rank without preference, priority or distinction of any of the Bonds over any other thereof, except as otherwise expressly provided in or pursuant to this Ordinance. D. Financial Obli ations. All of the Bonds, as to all Debt Service Requirements thereof, shall be payable solely out of the Pledged Revenues. The Owners of the Bonds may not look to the general or any other fund of the City for the payment of the Debt Service Requirements thereof, except the special funds pledged therefor, and the Bonds shall constitute special and limited obligations of the City. The Bonds are not general obligations of the City, and the full faith and credit of the City is not pledged for payment of the Bonds. Section 4. Sale of Bonds. A. Purchaser's Proposal. A proposal for the purchase of the Bonds upon terms favorable to the City, together with the disclosures, comparisons and other information required by the Refunding Act, has been received from the Purchaser, and the Financial Officer of the City has detennined that such proposal is in the best interests of the City and has recommended that such proposal be accepted by the Council. B. Award of Contract, Execution of Bond Purchase Agreement The contract for the purchase of the Bonds is hereby awarded to the Purchaser at the price specified in the Bond Purchase Agreement and upon the terms set forth in this Ordinance. The City Manager is hereby authorized and directed to execute the Bond Purchase Agreement on behalf of the City immediately following the marketing of the Bonds, subject to ratification by the Council by final adoption of this Ordinance. C. Approval of Preliminary Official Statement. The Council hereby approves the Preliminary Official Statement and authorizes and ratifies the use and distribution thereof by the Purchaser in marketing the Bonds to potential customers until the final official statement is available. D. Delivery. After the Bonds have been duly executed, authenticated and registered as provided herein, the Financial Officer shall cause the Bonds to be delivered to the Purchaser upon receipt of the agreed purchase price. Section 5. Disposition of Bond Proceeds and Pledged Revenues: Funds and Accounts Adopted or Created by Ordinance.• Security For Bonds The proceeds of the sale of the Bonds and the Pledged Revenues received by the City shall be deposited by the City in the funds described in this Section 5, to be accounted for in the manner and priority set forth in this Section 5. 32 Neither the Purchaser nor any subsequent Owner of any Bond shall be responsible for the application or disposal by the City or by any of its officers, agents and employees of the moneys derived from the sale of the Bonds or of any other moneys designated in this Section 5. The Pledged Revenues and all moneys and securities paid or to be paid to or held or to be held in any fund or account hereunder(except the Escrow Fund) are hereby assigned and pledged to secure the payment of the Debt Service Requirements of the Bonds, any Additional Parity Bonds, any other Parity Securities and any amounts due under the Guaranty Agreement. This assignment and pledge shall be valid and binding from and after the date of the first delivery of the Bonds, and the moneys, as received by the City and hereby assigned and pledged, shall immediately be subject to the lien of this assignment and pledge without any physical delivery thereof, any filing, or further act. The lien of this assignment and pledge and the obligation to perform the contractual provisions hereby made shall have priority over any or all other obligations and liabilities of the City (except as herein otherwise expressly provided), and the lien of this assignment and pledge shall be valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the City (except as herein otherwise expressly provided), irrespective of whether such parties have notice thereof. A. Disposition of Bond Proceeds: Notice of Refunding and Redemption of Refunded Bonds. The City shall deposit in a separate special fund and trust account hereby created and designated as the "City of Fort Collins, Colorado, Downtown Development Authority Tax Increment Refunding Bonds, Series 2001, Escrow Fund," forthwith upon receipt of the proceeds of the Bonds, proceeds of the Bonds in the approximate amount of$3,529,794 and other funds of the City in the approximate amount of$1,784,651 to be used only as provided in this Section 5A. The City shall apply said sums to the purchase of the Federal Securities in which the moneys in the Escrow Fund are to be invested and the funding of any required cash balance as provided in the Escrow Agreement. The Escrow Fund shall be maintained in an amount at the time of the deposit therein, and at all times subsequently, at least sufficient, together with the known minimum yield to be derived from the investment of the deposit therein or any part thereof in such Federal Securities, to pay the Debt Service Requirements of the Refunded Bonds as the same become due. Moneys shall be withdrawn by the Escrow Bank from the Escrow Fund in sufficient amounts and at times to permit the payment of the Debt Service Requirements of the Refunded Bonds on the specified Redemption Date. Any moneys remaining in the Escrow Fund after provision has been made for the payment of the Refunded Bonds may be applied to any lawful purpose of the City. If for any reason the amount in the Escrow Fund shall at any time be insufficient for the purposes hereinbefore set forth, the City shall forthwith from the first Pledged Revenues available therefor deposit therein such additional moneys as shall be necessary to permit the payment in full of the Debt Service Requirements of the Refunded Bonds as herein provided. The City hereby exercises its option to redeem the Refunded Bonds prior to their respective Maturity Dates, on June 1, 2001, at a price equal to the principal amount of each 33 Refunded Bond so redeemed plus accrued interest thereon to the Redemption Date plus a premium equal to 1% of the principal amount of each Refunded Bond so redeemed. The Financial Officer, as paying agent for the 1992 Tax Increment Revenue Refunding Bonds, is hereby authorized and directed on behalf of the City to give on May 1, 2001, irrevocable notice of refunding and redemption of the Refunded Bonds. The notice of refunding and redemption of the Refunded Bonds shall be given by sending a copy of such notice by certified or registered first-class postage prepaid mail to the Owners of the Refunded Bonds at the addresses appearing on the registration books of the City. The Financial Officer, as paying agent for the 1992 Tax Increment Revenue Refunding Bonds, shall forthwith send such notice of refunding and redemption to the Securities Depository by legible telecopy, registered or certified mail or overnight delivery, and otherwise comply with the letter of representations relating to the 1992 Tax Increment Revenue Refunding Bonds, dated March 15, 1992, between the City and the Securities Depository. Any such notice of refunding and redemption sent to the Securities Depository shall include the CUSIP numbers of the Refunded Bonds. The notice of refunding and redemption of the Refunded Bonds shall be in substantially the following form: 34 [Form of Notice] NOTICE OF REFUNDING AND REDEMPTION OF CERTAIN CITY OF FORT COLLINS, COLORADO DOWNTOWN DEVELOPMENT AUTHORITY TAX INCREMENT REVENUE REFUNDING BONDS SERIES 1992 DATED MARCH 15, 1992 - $11,380,000 NOTICE IS HEREBY GIVEN to the registered owners of City of Fort Collins, Colorado, Downtown Development Authority Tax Increment Revenue Refunding Bonds, Series 1992, dated March 15, 1992, in the original aggregate principal amount of$11,380.000, maturing from June 1, 2001, through December 1, 2004, and on June 1, 2007 (collectively, the "Refunded Bonds") that the City of Fort Collins, Colorado (the "City"), has issued Downtown Development Authority Tax Increment Revenue Refunding Bonds, Series 2001, dated April 1, 2001, in the aggregate principal amount of$3,640,000, and deposited a portion of the proceeds thereof and other funds of the City in escrow with The Bank of Cherry Creek, N.A., Denver, Colorado, which proceeds and other funds have been invested in bills, certificates of indebtedness, notes, bonds or similar securities that are direct obligations of the United States of America or are obligations the principal and interest of which are unconditionally guaranteed by the United States of America for the payment of the principal of, interest on and any premium due in connection with the redemption of the Refunded Bonds as the same become due. The escrow, including the known minimum yield from such investments, is fully sufficient at the time of the deposit and at all times subsequently to pay the principal of, interest on and any premium due in connection with the redemption of the Refunded Bonds as such payments become due. NOTICE IS FURTHER HEREBY GIVEN that the City has exercised its option to redeem the Refunded Bonds, prior to their respective maturity dates, on June 1, 2001 (the 'Redemption Date"), at a price equal to the principal amount of each Refunded Bond so redeemed plus accrued interest thereon to the Redemption Date plus a premium equal to 1% of the principal of each Refunded Bond so redeemed. The total aggregate principal amount of the Refunded Bonds to be redeemed on the Redemption Date is $5,105,000, and the CUSIP numbers of the Refunded Bonds are as follows: [To be provided] 35 On the Redemption Date there will become due and payable at the office of the Financial Officer of the City,as paying agent for the Refunded Bonds.the principal amount of each Refunded Bond so redeemed,plus accrued interest thereon to the Redemption Date plus a premium equal to 1% of the principal amount of each Refunded Bond so redeemed, and from and after the Redemption Date interest will cease to accrue. Each Refunded Bond will be redeemed on or after the Redemption Date upon presentation and surrender thereof. GIVEN BY ORDER OF THE CITY COUNCIL this l st day of May, 2001. FINANCIAL OFFICER OF THE CITY OF FORT COLLINS, COLORADO as paying agent Authorized Officer [End of Form of Notice] 36 The City shall also deposit in the Development and Expense Fund forthwith upon receipt thereof proceeds of the Bonds in the approximate amount of $130,922 to be used and withdrawn only as provided in this Section 5A. The proceeds of the Bonds deposited in the Development and Expense Fund shall be used and paid out from time to time solely for the purpose of paying the costs of issuing the Bonds. Any proceeds of the Bonds remaining in the Development and Expense Fund after payment in full of the costs of issuing the Bonds or so much thereof as may be eligible for payment or reimbursement shall be transferred to the Tax Increment Principal and Interest Account and used for the purposes thereof. B. Disposition of Tax Increment Revenues For so long as any ofthe Bonds shall be Outstanding,as to any Debt Service Requirements, except as otherwise provided herein,the Tax Increment Revenues;upon their receipt from time to time by the City,shall be set aside and credited immediately to the Tax Increment Fund. For so long as any of the Bonds shall be Outstanding as to any Debt Service Requirements,the Tax Increment Fund shall be accumulated and administered, and the moneys on deposit therein shall be applied, in the following order of priority: (1) First,to the Tax Increment Principal and Interest Account to pay any Debt Service Requirements of the Bonds, any Additional Parity Bonds and any other Parity Securities then Outstanding in the manner set forth in Section 5C hereof, (2) Second,to the Tax Increment Reserve Account,in the manner set forth in Section 5D hereof, (3) Third, to the payment of Debt Service Requirements of Subordinate Bonds or other Subordinate Securities in accordance with Section 5J hereof: and (4) Fourth, to the Sales and Use Tax Fund in reimbursement for any moneys withdrawn from the Sales and Use Tax Principal and Interest Account to pay any Debt Service Requirements of the Bonds or any Subordinate Securities. C. Tax Increment Principal and Interest Account Pavments The City shall deposit in the Tax Increment Principal and Interest Account forthwith upon receipt of the proceeds of the Bonds, interest accrued thereon from their date of issue to the date of delivery thereof to the Purchaser, to apply to the payment of interest first due on the Bonds. The City shall deposit in the Tax Increment Principal and Interest Account from the Tax Increment Revenues on or before the last day of May,2001,the amount of interest accruing on the Bonds during said month (with a credit for the amount of any accrued interest deposited in the Tax Increment Principal and Interest Account and not theretofore credited)and on or before the last day or each month beginning June, 2001, the following amounts: 37 (1) Interest Pavments One-sixth(1/6)of the aggregate amount of the next installment of interest due on the next Interest Payment Date in the then-current Bond Year plus any other amounts due for interest on the Bonds, any Additional Parity Bonds and any other Panty Securities then Outstanding. (2) Principal Payments. One-sixth (1/6) of the aggregate amount of the next installment of principal due on the next principal payment date in the then-current Bond Year plus any other amounts due for principal ofthe Bonds,any Additional Parity Bonds and any other Parity Securities then Outstanding. Such interest and principal shall be promptly paid when due. The moneys credited to the Tax Increment Principal and Interest Account shall be transferred to the Sales and Use Tax Principal and Interest Account on each June 1 and December 1 and shall then be used to pay the Debt Service Requirements of the Bonds then Outstanding, as such Debt Service Requirements become due. Nothing herein shall be construed so as to prevent the City from creating separate subaccounts within the Tax Increment Principal and Interest Account for the Bonds and any Additional Parity Bonds and accounting separately for any deposits made thereto on account of the Bonds and any Additional Parity Bonds or from creating separate principal and interest accounts for Additional Parity Bonds, if such action is deemed by the City to be necessary or desirable in order to comply with any statute or regulation governing the exclusion from gross income under federal income tax laws of interest on any such Additional Parity Bonds, provided that any such separate subaccounts shall have claims to the Tax Increment Revenues equal to and on a parity with those of the other such subaccounts and any such separate principal and interest account shall have a claim to the Tax Increment Revenues equal to and on a parity with that of the Tax Increment Principal and Interest Account. D. Tax Increment Reserve .?ccount Payments. The City shall retain in the Tax Increment Reserve Account a sum equal to the Combined Average Annual Debt Service Requirements of the Bonds and any other Parity Securities. Subject to the payments required by Section 5C hereof, except as provided in Section 5E hereof, from and to the extent of any moneys remaining in the Tax Increment Fund, or, if necessary, subject to the payments required by Section 5G and 5H hereof, except as provided in Section 5I hereof, from and to the extent of any moneys remaining in the Sales and Use Tax Fund, there shall be credited as hereinafter provided and from time to time thereafter to the Tax Increment Reserve Account moneys sufficient to accumulate in and maintain the Tax Increment Reserve Account at an amount at least equal to the Combined Average Annual Debt Service Requirements of all Outstanding Bonds,Additional Parity Bonds and other Parity Securities for which the Tax Increment Reserve Account is maintained. Said amount shall be maintained as a continuing reserve solely for the payment of the Debt Service Requirements of the Bonds, any Additional Parity Bonds and any other Parity Securities for which the Tax 38 Increment Reserve Account is maintained, except as otherwise provided herein. No payment need be made into the Tax Increment Reserve Account so long as the moneys therein shall equal not less than said amount. In the event that the amount of the Tax Increment Reserve Account falls below the minimum amount required to be maintained therein, the City shall credit to the Tax Increment Reserve Account that sum of Tax Increment Revenues needed to accumulate or reaccumulate the amount therein so that at all times the amount of the Tax Increment Reserve Account equals said minimum amount. The moneys in the Tax Increment Reserve Account shall be set aside, accumulated,and,if necessary,reaccumulated as provided herein,from time to time,and maintained as a continuing reserve to be used,except as hereinafter provided in Section 5E and Section 9 hereof, only to prevent deficiencies in the Tax Increment Principal and Interest Account resulting from failure to deposit therein sufficient sums to pay the Debt Service Requirements of the Bonds, any Additional Parity Bonds and any other Parity Securities for which the Tax Increment Reserve Account is maintained as the same become due. If at any time the City shall for any reason fail to pay into the Tax Increment Principal and Interest Account the full amount required for payment of Debt Service Requirements on the Bonds, then an amount shall be paid into the Tax Increment Principal and Interest Account at such time from the Tax Increment Reserve Account equal to the difference between that paid from the Tax Increment Revenues and the full amount required. The money so used shall be replaced to the Tax Increment Reserve Account from the first moneys credited to the Tax Increment Fund thereafter received and not required to be otherwise applied by Section 5C hereof or,if necessary,from the first moneys credited to the Sales and Use Tax Fund thereafter received and not required to be otherwise applied by Section 5G and Section 5H hereof. If Additional Parity Bonds or other Parity Securities are Outstanding and a separate reserve fund or account is maintained therefor, then the moneys replaced in the Tax Increment Reserve Account and such separate reserve fund or account shall be replaced on a pro rata basis,as moneys become available therefor. If at any time the City shall for any reason fail to pay into the Tax Increment Reserve Account the full amount required from the moneys credited to the Tax Increment Fund, the difference between the amount paid and the amount required shall in a like manner be paid therein from the first moneys credited to the Tax Increment Fund thereafter received and not required to be applied otherwise by Section 5C hereof or, if necessary, from the first moneys credited to the Sales and Use Tax Fund thereafter received and not required to be otherwise applied by Section 5G and Section 5H hereof. Nothing in this Ordinance shall be construed as limiting the right of the City to substitute for the cash deposit required to be maintained hereunder a "qualified surety bond" as defined in the Surety Bond Commitment or a letter of credit, insurance policy, agreement guaranteeing payment or other undertaking by a financial institution to ensure that cash in the 39 amount otherwise required to be maintained hereunder will be available to the City as needed. provided that such instrument is first approved in writing by the Bond Insurer. In the event and to the extent that moneys on deposit in the Tax Increment Principal and Interest Account plus all amounts on deposit in the Tax Increment Reserve Account in excess of the amount of the Surety Bond are insufficient to pay the amount of principal and interest coming due, then the Paying Agent shall at least three(3)days prior to the Interest Payment Date deliver to the Bond Insurer a demand for payment in the form attached to the Surety Bond as Attachment 1, duly executed by the Paying Agent certifying that payment due under this Ordinance has not been made to the Paying Agent. Upon receipt of moneys received from the draw on the Surety Bond, as specified in the demand for payment, the Paying Agent shall credit the Tax Increment Reserve Account to the extent of moneys received pursuant to such demand for payment. All amounts due under the Guaranty Agreement representing amounts drawn on the Surety Bond shall be paid from the first Pledged Revenues available after payment of all amounts required by Sections 5C and 5G hereof and before payment of any amounts otherwise required by Sections 5D and 5H hereof. All amounts due under the Guaranty Agreement representing interest on amounts drawn on the Surety Bond and expenses payable under the Guaranty Agreement shall be paid from the first Pledged Revenues available after payment of any amounts otherwise required by Sections 5D and 5H hereof and before payment of any amounts permitted by Sections 5J and 5K hereof. The Paying Agent shall maintain adequate records, verified with the Bond Insurer, as to the amount available to be drawn at any given time under the Surety Bond and as to the amounts paid and owing to the Bond Insurer under the terms of the Guaranty Agreement. E. Termination of Tax Increment Deposits No payment need be made into the Tax Increment Principal and Interest Account or the Tax Increment Reserve Account if the amount in the Tax Increment Principal and Interest Account and the amount in the Tax Increment Reserve Account total a sum at least equal to the entire remaining Debt Service Requirements of the Outstanding Bonds and any Outstanding Additional Parity Bonds or other Parity Securities to their respective Maturity Dates or to any Redemption Date or Redemption Dates on which the City shall have exercised or shall have obligated itself to exercise its option to redeem,prior to their respective Maturity Dates, any Bonds, any Additional Parity Bonds or any other Parity Securities then Outstanding and thereafter maturing(provided that, solely for the purpose of this Section 5E,there shall be deemed to be a credit to the Tax Increment Reserve Account moneys,Federal Securities and bank deposits.or any combination thereof,accounted for in any other fund or account of the City and restricted solely for the purpose of paying the Debt Service Requirements of the Bonds, any Additional Parity Bonds or any other Parity Securities),in which case moneys in the Tax Increment Principal and Interest Account and the Tax Increment Reserve Account in an amount,except for any known interest or other gain to accrue from any investment or deposit of moneys pursuant to Section 6B hereof from the time of any such investment or deposit to the time or respective times the 40 proceeds of any such investment or deposit shall be needed for such payment, at least equal to such Debt Service Requirements, shall be used together with any such gain from such investments and deposits solely to pay such Debt Service Requirements as the same become due:and any moneys in excess thereof in the Tax Increment Principal and Interest Account and the Tax Increment Reserve Account and any other moneys derived from the Tax Increment Revenues may be used in any�lawful manner determined by the City and the Authority. F. Disnosition of Sales and Use Tax Revenues For so long as any of the Bonds shall be Outstanding,as to any Debt Service Requirements,except as otherwise provided herein,the Sales and Use Tax Revenues, upon their receipt from time to time by the City, shall be set aside and credited immediately to the Sales and Use Tax Fund. For so long as any of the Bonds shall be Outstanding, as to any Debt Service Requirements, except as otherwise provided herein, the Sales and Use Tax Fund shall be accumulated and administered, and the moneys on deposit therein shall be applied,in the following order of priority: (1) First,to the Sales and Use Tax Principal and Interest Account to pay any Debt Service Requirements ofthe Prior Sales and Use Tax Revenue Bonds and any other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith in the manner set forth in Section 5G hereof, (2) Second,to the Sales and Use Tax Reserve Account in the manner set forth in Section 5H hereof, (3) Third, to the payment of Debt Service Requirements of other Securities of the City secured by the Sales and Use Tax Revenues on a subordinate basis in accordance with Section 5J hereof, and (4) Fourth, to be used in accordance with Section 5K hereof. G. Sales and Use Tax Principal and Interest Account Payments The City shall deposit in the Sales and Use Tax Principal and Interest Account from the Sales and Use Tax Revenues on or before the last day of each month beginning in May, 2001, the following amounts: (1) Interest Payments. One-sixth(1/6)ofthe aggregate amount of the next installment of interest due on the next Interest Payment Date in the then-current Bond Year plus any other amounts due for interest on the Prior Sales and Use Tax Revenue Bonds, any other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith and, to the extent necessary, the Bonds. 41 (2) Principal Payments. One-sixth (1/6) of the aggregate amount of the next installment of principal due on the next principal payment date in the then-current Bond Year plus any other amounts due for principal of the Prior Sales and Use Tax Revenue Bonds, any other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith and, to the extent necessary, the Bonds. Such interest and principal shall be promptly paid when due. The moneys credited to the Sales and Use Tax Principal and Interest Account shall be used to pay the Debt Service Requirements of the Prior Sales and Use Tax Revenue Bonds. any other securities of the City secured by the Sales and Use Tax Revenues on a parity therewith and, to the extent necessary, the Bonds, as such Debt Service Requirements become due. H. Sales and Use Tax Reserve Account Payments The City shall maintain in the Sales and Use Tax Reserve Account a sum at least equal to the Average Annual Debt Service Requirements of the Prior Sales and Use Tax Revenue Bonds and any other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith. Subject to the payments required by Section 5G hereof, except as provided in Section 5I hereof,from and to the extent of any moneys remaining in the Sales and Use Tax Fund, there shall be credited as hereinafter provided and from time to time thereafter to the Sales and Use Tax Reserve Account moneys sufficient to accumulate in and maintain the Sales and Use Tax Reserve Account at an amount at least equal to the Combined Average Annual Debt Service Requirements of all Outstanding Prior Sales and Use Tax Revenue Bonds and any other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith for which the Sales and Use Tax Reserve Account is maintained. Said amount shall be maintained solely as a continuing reserve for the payment of the Debt Service Requirements of the Prior Sales and Use Tax Revenue Bonds and any other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith for which the Sales and Use Tax Reserve Account is maintained,except as otherwise provided herein. No payment need be made into the Sales and Use Tax Reserve Account so long as the moneys therein shall equal not less than said amount. In the event that the amount of the Sales and Use Tax Reserve Account falls below the minimum amount required to be maintained therein, the City shall credit to the Sales and Use Tax Reserve Account that sum of Sales and Use Tax Revenues needed to accumulate or reaccumulate the amount therein so that at all times the amount of the Sales and Use Tax Reserve Account equals said minimum amount. The moneys in the Sales and Use Tax Reserve Account shall be set aside, accumulated, and, if necessary, reaccumulated as provided herein, from time to time, and maintained as a continuing reserve to be used,except as hereinafter provided in Section 5I and Section 9 hereof,only to prevent deficiencies in the Sales and Use Tax Principal and Interest Account resulting from failure to deposit therein sufficient sums to pay the Debt Service Requirements of the Prior Sales and Use Tax Revenue Bonds and any other securities of the City secured by the Sales and Use Tax Revenues on a parity therewith for which the Sales and Use Tax Reserve Account is maintained as the same become due. 42 If at any time the City shall for any reason fail to pay into the Sales and Use Tax Principal and Interest Account the full amount required,then an amount shall be paid into the Sales and Use Tax Principal and Interest Account at such time from the Sales and Use Tax Reserve Account equal to the difference between that paid from the Sales and Use Tax Revenues and the full amount required. The money so used shall be replaced to the Sales and Use Tax Reserve Account from the first moneys credited to the Sales and Use Tax Fund thereafter received and not required to be otherwise applied by Section 5G hereof. If other securities of the City secured by the Sales and Use Tax Revenues on a parity with the Prior Sales and Use Tax Revenue Bonds are Outstanding and a separate reserve fund or account is maintained therefor,then the moneys replaced in the Sales and Use Tax Reserve Account and such separate reserve fund or account shall be replaced on a pro rata basis, as moneys become available therefor. If at any time the City shall for any reason fail to pay into the Sales and Use Tax Reserve Account the full amount required from the moneys credited to the Sales and Use Tax Fund, the difference between the amount paid and the amount required shall in a like manner be paid therein from the first moneys credited to the Sales and Use Tax Fund thereafter received and not required to be applied otherwise by Section 5G hereof. I. _Termination of Sales and Use Tax Deposits No payment need be made into the Sales and Use Tax Principal and Interest Account or the Sales and Use Tax Reserve Account if the amount in the Sales and Use Tax Principal and Interest Account and the amount in the Sales and Use Tax Reserve Account total a sum at least equal to the entire remaining Debt Service Requirements of all Prior Sales and Use Tax Revenue Bonds and any other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith to their respective Maturity Dates or to any Redemption Date or Redemption Dates on which the City shall have exercised or shall have obligated itself to exercise its option to redeem, prior to their respective Maturity Dates, any Prior Sales and Use Tax Revenue Bonds or any other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith then Outstanding and thereafter maturing (provided that, solely for the purpose of this Section 5I,there shall be deemed to be a credit to the Sales and Use Tax Reserve Account moneys, Federal Securities and bank deposits, or any combination thereof, accounted for in any other fund or account of the City and restricted solely for the purpose of paying the Debt Service Requirements of the Prior Sales and Use Tax Revenue Bonds or any other Securities of the City secured by the Sales and Use Tax Revenues on a parity therewith, in which case the moneys in the Sales and Use Tax Principal and Interest Account and the Sales and Use Tax Reserve Account in an amount, except for any known interest or other gain to accrue from any investment or deposit of moneys pursuant to Section 6B hereof from the time of any such investment or deposit to the time or respective times the proceeds of any such investment or deposit shall be needed for such payment, at least equal to such Debt Service Requirements, shall be used together with any such gain from such investments and deposits solely to pay such Debt Service Requirements as the same become due; and any moneys in excess thereof in the Sales and Use Tax 43 T Principal and Interest Account and the Sales and Use Tax Reserve Account and any other moneys derived from the Sales and Use Tax Revenues may be used in any lawful manner determined by the City. J. Pavment of Subordinate Securities. After there have been deposited in the Tax Increment Principal and Interest Account or the Sales and Use Tax Principal and Interest Account an amount sufficient to pay all the Debt Service Requirements due or to become due during the current Bond Year on all Bonds,Additional Parity Bonds and other Parity Securities and all Prior Sales and Use Tax Revenue Bonds and any other securities of the City secured by the Sales and Use Tax Revenues on a parity therewith then Outstanding and after the accumulations to and replenishments of the Tax Increment Reserve Account or the Sales and Use Tax Reserve Account to be made in the current Bond Year have been made, any moneys remaining in the Tax Increment Fund or the Sales and Use Tax Fund in any Bond Year may be used by the City for the payment of Debt Service Requirements of Subordinate Securities payable from the Tax Increment Revenues or subordinate securities payable from the Sales and Use Tax Revenues and authorized to be issued in accordance with this Ordinance, including reasonable reserves for such securities; but the lien of such securities on the Tax Increment Revenues or the Sales and Use Tax Revenues and the pledge thereof for the payment of such securities shall be subordinate to the lien and pledge for the payment of all Bonds,any Additional Parity Bonds and any other Parity Securities or all Prior Sales and Use Tax Revenue Bonds and any other securities of the City secured by the Sales and Use Tax Revenues on a parity therewith as herein provided. K. Use of Remaining Sales and Use Tax Revenues. After the payments hereinabove required to be made by Section 5F through Section 5H and Section 5J hereof are made, at the end of any month, or whenever in any month there shall have been credited to the Sales and Use Tax Principal and Interest Account and to the Sales and Use Tax Reserve Account for the payment of all Securities of the City payable from the Sales and Use Tax Revenues all amounts required to be deposited in those funds at that time,as herein provided,any remaining Sales and Use Tax Revenues shall be transferred to such fund of the City as the City shall determine. L. Budget and Appropriation of Sums. The sums provided to make the payments specified in this Section 5 shall be appropriated for said purposes, and the amounts so required in each year shall be included in the budget and the annual appropriation ordinance or measures to be adopted or passed by the Council in each year while any of the Bonds, as to either principal or interest,are Outstanding and unpaid. No provisions of any constitution,Charter, statute, ordinance, resolution,or other order or measure enacted after the issuance of the Bonds shall in any manner be construed as limiting or impairing the obligation of the City to keep and perform the covenants contained in this Ordinance so long as any of the Bonds remain Outstanding and unpaid. M. Excess Investment Earnings Fund. Within thirty (30) days after each installment calculation date and not later than sixty(60)days after the payment of the last Bond,the City shall compute the Excess Investment Earnings for the year just completed and shall transfer 44 from the Tax Increment Principal and Interest Account to the Excess Investment Earnings Fund an amount equal to the amount so computed. If the amount so computed is a negative number, said amount may be withdrawn from the Excess Investment Earnings Fund. All amounts in the Excess Investment Earnings Fund, including income earned from the investment of such amounts, shall be held by the City free and clear of the liens described in this Ordinance. The City shall pay over to United States of America, not later than thirty (30) days after the fifth anniversary of the date of issuance of the Bonds, an amount equal to ninety percent (90%) of the net aggregate amount transferred to or earned in the Excess Investment Earnings Fund during such period and not theretofore paid to the United States of America and,not later than sixty(60)days after the payment of the last Bond, one hundred percent (100%) of the aggregate amount in the Excess Investment Earnings Fund. Notwithstanding the provisions of this Section 5M, the City shall at all times maintain and administer the Excess Investment Earnings Fund in conformity with all applicable federal statutes and regulations as the same may be amended from time to time. Section 6. General Administration of Funds and Accounts. A. Places and Times of Deposits. Each of the special funds or accounts referred to in Section 5 hereof shall be kept separate and apart from all other accounts or funds of the City as trust accounts solely for the purposes herein designated therefor. For purposes of investment of moneys, nothing, except as specifically provided herein, prevents the commingling of moneys accounted for in any two or more such funds or accounts pertaining to the Pledged Revenues or to such fund and account and any other funds or accounts of the City adopted or created under this Ordinance. Such funds or accounts shall be continuously secured to the fullest extent required and permitted by the laws of the State for the securing of public funds and shall be irrevocable and not withdrawable by anyone for any purpose other than the respective designated purposes of such funds and accounts. Each periodic payment shall be credited to the proper fund or account not later than the date therefor herein designated, except that when any such date shall be a Saturday,a Sunday or a legal holiday, then such payment shall be made on or before the next preceding business day. B. Investment of Funds and Accounts. Any moneys in any fund or account described in this Ordinance(except the Escrow Fund)may be deposited,invested,or reinvested only in Permitted Investments. Securities or obligations purchased as such an investment shall either be subject to redemption at any time at face value by the Owner thereof at the option of such Owner or shall mature at such time or times as shall most nearly coincide with the expected need for moneys from the fund or account in question. Securities or obligations so purchased as an investment of moneys in any such fund or account shall be deemed at all times to be a part of the applicable fund or account: provided that (except for the Escrow Fund, the Tax Increment Reserve Account, the Sales and Use Tax Reserve Account and the Excess Investment Earnings Fund)the interest accruing on such investments and any profit realized therefrom shall be credited to the Tax Increment Fund or the Sales and Use Tax Fund, as the case may be, and any loss resulting from such investments shall be charged to the particular fund or account in question. Interest and profit realized from investments in the Tax Increment Reserve Account or the Sales and Use Tax Reserve Account shall 45 be credited thereto,provided that,so long as the amount therein equals at least the minimum amount specified in Section 5D and Section 5H hereof,such interest and profit may be transferred to the Tax Increment Principal and Interest Account or the Sales and Use Tax Principal and Interest Account. as the case may be, and distributed in the same manner as other moneys therein. Any loss resulting from such investments in the Tax Increment Reserve Account or the Sales and Use Tax Reserve Account shall be charged thereto. Investments in the Tax Increment Reserve Account and the Sales and Use Tax Reserve Account shall not have maturity dates later than five (5) years from their purchase dates,except for investment agreements approved by the Bond Insurer,and shall be valued by the City or its agent at least once each year. If on any valuation date the market value of investments in the Tax Increment Reserve Account or the Sales and Use Tax Reserve Account is less than the amount required by Section 5D and Section 5H hereof to be maintained therein due to market fluctuations,the deficiency shall be remedied no later than the next valuation date. The City shall present for redemption or sale on the prevailing market any securities or obligations so purchased as an investment of moneys in a given fund or account whenever it shall be necessary to do so in order to provide moneys to meet any required payment or transfer from such fund or account. The City shall not invest any moneys accounted for hereunder if any such investment would contravene the covenant concerning arbitrage in Section 8P hereof. C. No Liabilitv for Losses Incurred in Performing Terms of Ordinance Neither the City nor any officer of the City shall be liable or responsible for any loss resulting from any investment or reinvestment made in accordance with this Ordinance. D. Character of Funds. The moneys in any fund or account herein authorized shall consist of lawful money of the United States of America or Permitted Investments or both such money and Permitted Investments. Moneys deposited in a demand or time deposit account in a Commercial Bank, appropriately secured according to the laws of the State, shall be deemed lawful money of the United States of America. E. Accelerated Payments Optional. Nothing contained herein prevents the accumulation in any fund or account herein designated of any monetary requirements at a faster rate than the rate or minimum rate, as the case may be, provided therefor, but no payment shall be so accelerated if such acceleration shall cause a default in the payment of any obligation of the City pertaining to the Pledged Revenues. Section 7. Priorities: Liens: Issuance of Additional Bonds. A. Lien on Pledged Revenues. Except as expressly provided in this Ordinance with respect to the issuance of Additional Parity Bonds, Parity Securities or Subordinate Securities and the payment of amounts due under the Guaranty Agreement, the Tax Increment Revenues and the Investment Earnings shall be and hereby are irrevocably assigned, pledged and set aside to pay the Debt Service Requirements of the Bonds. The Bonds constitute an irrevocable and first lien(but not necessarily an exclusive first lien) upon the Tax Increment Revenues and the Investment 46 Earnings. The Bonds, any Additional Parity Bonds and any other Parity Securities authorized to be issued and from time to time Outstanding are equitably and ratably secured by a lien on the Tax Increment Revenues and the Investment Earnings and shall not be entitled to any priority one over the other in the application thereof regardless of the time or times of the issuance of the Bonds, any Additional Parity Bonds and any other Parity Securities. it being the intention of the Council that there shall be no priority among the Bonds, any Additional Parity Bonds and any other Parity Securities, regardless of the fact that they may be actually issued and delivered at different times. The amounts due under the Guaranty Agreement constitute an irrevocable and non-exclusive lien upon the Tax Increment Revenues and the Investment Earnings subordinate to that of the Bonds,an), Additional Parity Bonds and any other Parity Securities but superior to that of Subordinate Securities. Except as expressly provided in this Ordinance or in Ordinance No. 26, 1993,of the City with respect to the issuance of the Prior Sales and Use Tax Revenue Bonds and any other securities of the City secured by the Sales and Use Tax Revenues,the Sales and Use Tax Revenues are assigned, pledged and set aside to pay the Debt Service Requirements of the Bonds and the payment of amounts due under the Guaranty Agreement. The Bonds constitute a first lien(but not necessarily an exclusive first lien) upon the Sales and Use Tax Revenues. The amounts due under the Guaranty Agreement constitute an irrevocable and non-exclusive lien upon the Sales and Use Tax Revenues subordinate to that of the Prior Sales and Use Tax Revenue Bonds and any other securities of the City issued on a parity therewith but superior to that of subordinate securities payable from the Sales and Use Tax Revenues. B. Issuance Of Additional Paritv Bonds. Nothing herein, subject to the limitations stated in Section 7F hereof,prevents the issuance by the City of Additional Parity Bonds payable from the Tax Increment Revenues and the Investment Earnings and constituting a lien thereon on a parity with, but not prior or superior to, the lien thereon of the Bonds; but before any such Additional Parity Bonds are authorized or actually issued the following provisions must first be satisfied: (1) Absence of Default. At the time of the issuance of any Additional Bonds, the City shall not be in default in making any payments required by the Bonds, this Ordinance or ordinances authorizing Additional Parity Bonds. Such absence of default shall be certified in writing by the Financial Officer of the City. (2) Historic Tax Increment Revenues Test. Except as hereinafter provided in the case of Additional Parity Bonds issued for the purpose of refunding less than all of the Bonds and other Parity Securities then Outstanding, either(i) the Tax Increment Revenues derived in each of the last two (2)complete Fiscal Years immediately preceding the date of the issuance of such Additional Parity Bonds,or(ii)the Tax Increment Revenues derived in each of the last two (2)twelve-month periods, one (1) of which shall end not later than the third calendar month prior to the month of issuance of Additional Parity Bonds and the other 47 of which shall end not earlier than the end of the last preceding Fiscal Year. as certified by the Financial Officer of the City or by an Independent Accountant,shall have been sufficient to pay in each period an amount at least equal to one hundred forty percent (140%) of the Combined Average Annual Debt Service Requirements of all Bonds and other Parity Securities then Outstanding and the Additional Parity Bonds proposed to be issued. In the case of Additional Parity Bonds issued for the purpose of refunding less than all of the Bonds and other Parity Securities then Outstanding, compliance with this Section 7B(2) shall not be required so long as the Debt Service Requirements payable on all Bonds and other Parity Securities Outstanding after the issuance of such Additional Parity Bonds on each Interest Payment Date does not exceed the Debt Service Requirements payable on all Bonds and other Parity Securities Outstanding prior to the issuance of such Additional Parity Bonds on such Interest Payment Dates. (3) Adequate Reserves. The proceedings under which any such Additional Parity Bonds are issued must provide for the deposit of moneys to the Tax Increment Reserve Account on substantially the same terms as provided in Section 5D hereof and contain a covenant by the City to maintain the Tax Increment Reserve Account in an amount equal to the amount required by Section 5D hereof. Alternatively, if such action is deemed by the City to be necessary or desirable in order to comply with any statute or regulation governing the exclusion from gross income under federal income tax laws of interest on any such Additional Parity Bonds, the proceedings under which any such Additional Parity Bonds are issued may provide for the deposit of moneys to a reserve fund or account (other than the Tax Increment Reserve Account) established and maintained for any such Additional Parity Bonds on substantially the same terms as provided in Section 5D hereof and contain a covenant by the City to maintain such reserve fund or account in an amount equal to the amount required by Section 5D hereof, except as may be necessary to comply with such statute or regulation. Any such reserve fund or account shall have a claim to the Pledged Revenues equal to and on a parity with the Tax Increment Reserve Account. C. Subordinate Securities Permitted. Nothing herein, subject to the limitations stated in Section 7F hereof, prevents the City from issuing Subordinate Bonds or Subordinate Securities for any lawful purpose payable from the Tax Increment Revenues and the Investment Earnings and having a lien thereon subordinate, inferior and junior to the lien thereon of the Bonds. D. Superior Securities Prohibited. The City shall not issue any Superior Bonds or Superior Securities. E. Refundine Bonds. Refunding bonds may be issued pursuant to law then in effect,provided if less than all of the Bonds or Parity Securities Outstanding are to be refunded with Additional Parity Bonds, the City must comply with the provisions of Section 7B hereof. 48 F. Supplemental Ordinances. Additional Parity Bonds or Subordinate Securities shall be issued only after authorization thereof by ordinance, supplemental ordinance or other instrument of the Council, in substantially the same form as this Ordinance, stating the purpose or purposes of the issuance of such additional securities, directing the application of the proceeds thereof to such purpose or purposes, directing the execution thereof and fixing and determining the date,series designation,principal amount,maturity or maturities,maximum rate or rates of interest, and prior redemption privileges of the City-with respect thereto and providing for payments to and from the applicable funds and accounts in accordance with this Ordinance. All additional securities shall bear such date, shall be payable as to principal on June 1 or December 1 or both and as to interest on June 1 and December 1 and shall be subject to redemption prior to maturity on such terms and conditions, as may be provided, and shall bear interest at such rate or rates as may be fixed by ordinance, instrument or other document of the Council. Nothing herein shall be construed to prohibit the issuance of additional securities the principal of and interest on which is payable more frequently than semiannually. No ordinance, supplemental ordinance or other instrument of the Council authorizing the issuance of Additional Parity Bonds pursuant to Section 7B(2) hereof or Subordinate Securities pursuant to Section 7C hereof shall be adopted,and no such Additional Paritv Bonds or Subordinate Securities shall be issued; without the prior written consent of the Bond Insurer. Section 8. Covenants. The City hereby particularly covenants and agrees with the Bond Insurer and the Owners of the Bonds from time to time,and makes provisions that shall be a part of its contract with such Owners, which covenants and provisions shall be kept by the City continuously until all of the Bonds have been fully paid and discharged, as follows: A. Continuance and Collection of Tax Increment Revenues. (1) The Plan of Development, as approved and amended as described in this Ordinance, is now in full force and effect. The City shall not revoke its approval or amend the Plan of Development in any manner that would diminish the Tax Increment Revenues. (2) The City shall continue to collect the Tax Increment Revenues in accordance with the Downtown Development Authority Act. (3) The City shall maintain the Tax Increment Fund as a fund of the City separate and distinct from all other funds of the City and shall place the Tax Increment Revenues therein. The Tax Increment Fund shall be subject to appropriation only as authorized by the Downtown Development Authority Act and this Ordinance. 49 (4) All of the Tax Increment Revenues shall be subject to the payment of the Debt Service Requirements of all securities payable therefrom, including reserves therefor, as provided herein or in any instrument supplemental or amendatory hereto. B. Continuance and Collection of Sales and Use Tax Revenues. (1) Ordinance No.58, 1967,Ordinance No. 140, 1979.and Ordinance No. 149, 1981, as originally adopted,have not been repealed or amended, except by Ordinance No. 4, 1968, Ordinance No. 6, 1968, Ordinance No. 23, 1974, Ordinance No. 137, 1977, Ordinance No. 87, 1981,and Ordinance No. 113, 1984, and are now in full force and effect. The City shall not repeal or amend said ordinances in any manner that would diminish the Sales and Use Tax Revenues. (2) The City shall continue to levy, impose, administer, enforce and collect the sales and use tax on sales and purchases of tangible personal property at retail and storage, use, distribution and consumption of tangible personal property purchased or acquired at retail, within the City, in accordance with Ordinance No. 58, 1967, Ordinance No. 140, 1979,and Ordinance No. 149, 1981,without reduction in the percentage rate of the sales and use tax as set forth therein. (3) The City shall maintain the Sales and Use Tax Fund as a fund of the City separate and distinct from all other funds of the City and shall place the Sales and Use Tax Revenues therein. The Sales and Use Tax Fund shall be subject to appropriation only as authorized by this Ordinance. (4) All of the Sales and Use Tax Revenues shall be subject to the payment of the Debt Service Requirements of all securities payable therefrom, including reserves therefor, as provided herein or in any instrument supplemental or amendatory hereto. C. Defense of Legalitv of Pledged Revenues. There is not pending or threatened in writing any suit, action or proceeding against or affecting the City before or by any court, arbitrator, administrative agency or other governmental authority which affects the validity or legality of this Ordinance,any ordinance affecting the Tax Increment Revenues, Ordinance No. 58, 1967, Ordinance No. 140, 1979, Ordinance No. 149, 1981, or any of the City's obligations under such ordinances. The City shall,to the extent permitted by law, defend the validity and legality of all ordinances affecting the Tax Increment Revenues, Ordinance No. 58, 1967, Ordinance No. 140, 1979,Ordinance No. 149, 1981,and all amendments thereto against all claims,suits and proceedings that would diminish or impair the Pledged Revenues. 50 Except as permitted in this Ordinance, the City has not assigned or pledged the Pledged Revenues in any manner that would diminish the security for payment of the Bonds. D. Performance of Duties. The City,acting and through its officers,or otherwise, shall faithfully and punctually perform,-or cause to be performed, all duties with respect to the Pledged Revenues required by the Constitution and laws of the State, the Charter and the various ordinances, resolutions and contracts of the City, including, without limitation, the proper segregation of the proceeds of the Bonds and the Pledged Revenues and their application from time to time to the respective funds provided therefor. E. Contractual Obligations. The City shall perform all contractual obligations undertaken by it under the contract with the Purchaser and any other agreements relating to the Bonds and the Pledged Revenues. F. Further Assurances. At any and all times the City shall, so far as it may be authorized by law, pass, make, do, execute, acknowledge, deliver, and file or record all and every such further instruments, acts, deeds, conveyances, assignments, transfers, other documents, and assurances as may be necessary or desirable for the better assuring, conveying, granting, assigning and confirming all and singular the rights, the Pledged Revenues and other funds and accounts hereby pledged or assigned, or intended so to be, or which the City may hereafter become bound to pledge or to assign,or as may be reasonable and required to carry out the purposes of this Ordinance. The City, acting by and through its officers, or otherwise, shall at all times, to the extent permitted by law, defend, preserve and protect the pledge of the Pledged Revenues and other funds and accounts pledged hereunder and all the rights of every Owner of any of the Bonds against all claims and demands of all Persons whomsoever. G. Conditions Precedent. Upon the date of issuance of any of the Bonds, all conditions,acts and things required by the Constitution or laws of the United States of America,the Constitution or laws of the State, the Charter, or this Ordinance, to exist, to have happened, and to have been performed precedent to or in the issuance of the Bonds shall exist, have happened and have been performed, and the Bonds do not contravene any debt or other limitation prescribed by the Constitution or laws of the United States of America,the Constitution or laws of the State or the Charter. H. Records. The City shall keep proper books of record and account, separate and apart from all other records and accounts, showing complete and correct entries of all transactions relating to the funds and accounts described herein. I. Protection of Security. The City,its officers,agents and employees,shall not take any action in such manner or to such extent as might prejudice the security for the payment of the Debt Service Requirements of the Bonds and any other securities payable from the Pledged Revenues according to the terms thereof. No contract shall be entered into nor any other action taken 51 by which the rights of any Owner of any Bond or other security payable from Pledged Revenues might be materially impaired or diminished. J. Accumulation of Interest Claims. In order to prevent any accumulation of claims for interest after maturity, the City shall not directly or indirectly extend or assent to the extension of the time for the payment of any claim for interest on any of the Bonds or any other securities payable from the Pledged Revenues. and the City shall not directly or indirectly be a party to or approve any arrangements for any such extension or for the purpose of keeping alive any of such other claims for interest. If the time for the payment of any such installment of interest is extended in contravention of the foregoing provisions, such installment or installments of interest after such extension or arrangement shall not be entitled in case of default hereunder to the benefit or the security of this Ordinance, except upon the prior payment in full of the principal of all of the Bonds and any such securities the payment of which has not been extended. K. Prompt Payment of Bonds. The City shall promptly pay the Debt Service Requirements of every Bond on the dates and in the manner specified herein and in the Bonds according to the true intent and meaning hereof. L. Use of Funds and Accounts. The funds and accounts described in this Ordinance shall be used solely and only, and the moneys credited to such accounts are hereby pledged, solely for the purposes specified herein. M. Additional Securities. The City shall not hereafter issue any bonds or securities payable from the Pledged Revenues without compliance with the requirements with respect to the issuance of such bonds or securities set forth herein to the extent applicable. N. Other Liens. There are no liens or encumbrances of any nature whatsoever on or against any of the Tax Increment Revenues,except as permitted hereby and by the ordinances authorizing the Parity Securities or the Subordinate Securities that are Outstanding as of the date of issuance of the Bonds. O. Surety Bonds. Each official or other person having custody of any Pledged Revenues, or responsible for their handling, shall be fully bonded at all times, which bond shall be conditioned upon the proper application of said moneys. P. Tax Matters. The City shall make no investment or other use of the proceeds of the Bonds at any time during the term thereof that, if such investment or other use had been reasonably expected on the date the Bonds are issued, would have caused the Bonds to be arbitrage bonds within the meaning of the Internal Revenue Code of 1986, as amended, and the regulations thereunder and shall comply with all the requirements thereof throughout the term of the Bonds. Q. Annual Financial Reports: Events Renorts. 52 (1) The City shall deliver to each NRMSIR and the SID. if any. within two hundred forty (240) days after the end of each Fiscal Year: (a) a copy of the annual financial statements of the City prepared in accordance with generally accepted accounting principles applicable to governmental entities and audited by an Independent Accountant. including (i) a statement of the balances on deposit in each fund and account established under this Ordinance, and (ii) a calculation of the ratio of Pledged Revenues to Debt Service Requirements of the Bonds, any Additional Parity Bonds and any other Parity Securities then Outstanding for said Fiscal Year; and (b) an update of the information contained in the final official statement pertaining to the Bonds under the sections thereof entitled "SECURITY FOR THE BONDS - Pledged Revenues, - Tax Increment Revenues, - Property Tax Collections and Procedures and - Sales and Use Tax Revenues." (2) In a timely manner,the City shall deliver to the MSRB and to the SID, if any, notice of any of the following events with respect to the Bonds, if material: (a) Principal and interest payment delinquencies; (b) Non-payment related defaults; (c) Unscheduled draws on any debt service reserve reflecting financial difficulties; (d) Unscheduled draws on any credit enhancement reflecting financial difficulties; (e) Substitution of any credit or liquidity provider, or its failure to perform; (f) Adverse tax opinions or events affecting the tax-exempt status of the Bonds; (g) Modifications to rights of Owners of the Bonds; (h) Bond calls; (i) Defeasances; 53 (j) Release, substitution or sale of property securing payment of the Bonds; or (k) Rating changes. (3) In a timely manner, the City shall give to the MSRB and to the SID, if any, notice of any failure by the City to provide any information required pursuant to (1) above within the time limit specified therein. (4) All information required by this Section 8Q to be given as provided herein shall be given by the Financial Officer of the City. Any information given in any manner by any other officer of the City is not authorized or given pursuant hereto and may not be relied upon by any Owner of Bonds or any other Person. (5) The City agrees that the provisions of this Section 8Q shall be for the benefit of the Owners of the Bonds and shall be enforceable by any Owner in an action for specific performance against the City. No money damages shall be recoverable against the City for breach of any covenant contained in this Section 8Q. (6) This Section 8Q may be amended to the extent required or permitted by SEC Rule 15c2-12, provided that any such amendment either (a) does not, in the determination of the City(which may be based on an opinion of counsel). materially impair the interests of the Owners of the Bonds; or(b) is approved by the Owners of a majority in aggregate principal amount of the Bonds. (7) This Section 8Q shall be in effect from the date of delivery of the Bonds until the earlier of(a)the date all Debt Service Requirements of the Bonds have been legally defeased; (b) the date that the City shall no longer constitute an 'obligated person" within the meaning of SEC Rule 15c2-12; or (c) the date on which those portions of SEC Rule 15c2-12 that require this Section 8Q are held to be invalid by a court of competent jurisdiction in a non-appealable action,have been repealed retroactively or otherwise do not apply to the Bonds. Section 9. Defeasance. When all Debt Service Requirements of the Bonds and all amounts due under the Guaranty Agreement have been duly paid, the pledge and lien and all obligations hereunder shall thereby be discharged and the Bonds shall no longer be deemed to be Outstanding within the meaning of this Ordinance. There shall be deemed to be such due payment when the City has placed in escrow or in trust with a Trust Bank located within or without the State, moneys or Federal Securities in an amount sufficient (including the known minimum yield available for such purpose from Federal Securities in which such amount wholly or in part may be initially invested) to meet 54 all Debt Service Requirements of the Bonds, as the same become due to their respective Maturity Dates, and all amounts due under the Guaranty Agreement. The Federal Securities shall be non- callable and shall become due prior to the respective times at which the proceeds thereof shall be needed.in accordance with a schedule established and agreed upon between the City and such Trust Bank at the time of the creation of the escrow or trust, or the Federal Securities shall be subject to redemption at the option of the Owner thereof to assure such availability as so needed to meet such schedule. The City shall cause a copy of the report verifying the sufficiency of such escrow or trust prepared by an Independent Accountant acceptable in form and substance and addressed to the Bond Insurer, a copy of the escrow agreement in form and substance acceptable to the Bond Insurer and an opinion of nationally recognized bond counsel acceptable in form and substance and addressed to the Bond Insurer that the Bonds are no longer Outstanding to be delivered to the Bond Insurer. Any Debt Service Requirements of the Bonds paid by Bond Insurer shall not be deemed paid pursuant to this Ordinance until paid by the City in accordance herewith. In the event that a forward purchase agreement for Federal Securities is used in connection with any such escrow, such agreement shall be acceptable in form and substance to the Bond Insurer and shall be accompanied by such opinions of counsel as may reasonably be required by the Bond Insurer. Final drafts of all documents required hereby shall be provided to the Bond Insurer not later than five (5) days prior to the deposit required under the escrow agreement. Nothing herein shall be construed to prohibit a partial defeasance of the Outstanding Bonds in accordance with the provisions of this Section 9. Section 10. Default Provisions and Remedies of Bond Owners. A. Events of Default. Each of the following events is hereby declared to be an Event of Default by the City: (1) Payment of Principal. Payment of the principal of any of the Bonds is not made when the same becomes due and payable; (2) Nonpayment of Interest. Payment of any installment of interest on any of the Bonds is not made when the same becomes due and payable; (3) Incapacity to Perform. The City for any reason becomes incapable of fulfilling its obligations hereunder; (4) Nonperformance of Duties. The City shall have failed to carry out and to perform(or in good faith to begin the performance of)all acts and things lawfully required to be carried out to be performed by it under any contract relating to the Bonds or the Pledged Revenues, or to all or any combination thereof, or otherwise including, without limitation, this Ordinance,and such failure shall continue for thirty(30)days after receipt of notice from the Bond Insurer or the Owners of ten percent (10%) in aggregate principal amount of the Bonds then Outstanding,provided that if such failure cannot be cured within such thirty(30) days and if during that period corrective action has commenced to remedy such failure and 55 subsequently is diligently pursued by the City to the completion of such performance. an Event of Default shall not be deemed to have occurred. (5) Bankruptcy: Receivership. A petition in bankruptcy or a plan for adjustment of debts is filed by the City and not withdrawn or dismissed within sixty (60) days after such filing or an order or decree is entered by a court of competent jurisdiction, with the consent or acquiescence of the City, appointing a receiver or receivers for the Pledged Revenues and any other moneys subject to the lien to secure the payment of the Bonds, or if any order or decree, having been entered without the consent or acquiescence of the City,is not vacated or discharged or stayed on appeal within sixty(60)days after entry. (6) Default of Any Provision. The City makes any default in the due and punctual performance of any other of the representations,covenants,conditions,agreements and other provisions contained in the Bonds or in this Ordinance on its part to be performed, and such default continues for thirty (30) days after written notice, specifying such default and requiring the same to be remedied, is given to the City by the Bond Insurer or by the Owners of ten percent(10%) in aggregate principal amount of the Bonds then Outstanding, provided that if such failure cannot be cured within such thirty (30) days and if during that period corrective action has commenced to remedy such failure and subsequently is diligently pursued by the City to the completion of such performance,an Event of Default shall not be deemed to have occurred; (7) Default on Parity Securities or Subordinate Securities An event of default has occurred and is continuing with respect to any Parity Securities or Subordinate Securities. B. Remedies for Defaults. Upon the happening and continuance of any Event of Default, provided that the Bond Insurer has made all payments of principal and interest on the Bonds as required by the Bond Insurance Policy,the Bond Insurer.acting alone, shall have the right to direct all remedies against the City with respect to the Bonds, and no such remedies shall be exercised without the consent of the Bond Insurer. Subject to the foregoing, the Owner or Owners of not less than ten percent (10%) in aggregate principal amount of the Bonds then Outstanding, including, without limitation, a trustee or trustees therefor, may proceed against the City and its agents, officers and employees to protect and to enforce the rights of any Owner of Bonds under this Ordinance by mandatory injunction or by other suit, action, or special proceedings in equity or at law, in any court of competent jurisdiction, either for the appointment of a receiver or an operating trustee or for the specific performance of any covenant or agreement contained herein or for any proper legal or equitable remedy as such Owner or Owners may deem most effectual to protect and to enforce the aforesaid rights, or thereby to enjoin any act or thing which may be unlawful or in violation of any right of any Owner of any Bond, or to require the City to act as if it were the trustee of an expressed trust, or any combination of such remedies, or as otherwise may be authorized by any statute or other provision of law. All such proceedings at law or in equity shall be instituted,had 56 and maintained for the equal benefit of all Owners of the Bonds and any Parity Securities then Outstanding. Any receiver or operating trustee appointed in any proceedings to protect the rights of such Owners hereunder,the consent to any such appointment being hereby expressly granted by the City, may collect, receive and apply all Pledged Revenues arising after the appointment of such receiver or operating trustee in the same manner as the City itself might do. Notwithstanding the foregoing or any other applicable provisions of law-, no Event of Default shall result in acceleration of any obligation of the City represented by the Bonds. C. Rights and Privileges Cumulative. The failure of any Owner of any Outstanding Bond to proceed in any manner herein provided shall not relieve the City, or any of its officers, agents or employees of any liability for failure to perform or carry out any duty,obligation or other commitment. Each right or privilege of any such Owner or any trustee thereof is in addition and is cumulative to any other right or privilege, and the exercise of any right or privilege by or on behalf of any Owner shall not be deemed a waiver of any other right or privilege thereof. Each Owner of any Bond shall be entitled to all of the privileges, rights, and remedies provided or permitted in this Ordinance and as otherwise provided or permitted by law or in equity or by statute, except as provided in Section 12A and Section 12B hereof,and subject to the applicable provisions concerning the Pledged Revenues and the proceeds of the Bonds. Nothing herein affects or impairs the right of any Owner of any Bond to enforce the payment of the Debt Service Requirements due in connection with his, her or its Bond or the obligation of the City to pay the Debt Service Requirements of each Bond to the Owner thereof at the time and the place expressed in such Bond. D. Duties Upon Defaults. Upon the happening of any of the Events of Default as provided in Section I OA hereof, the City, in addition, shall do and perform all proper acts on behalf of and for the Owners of the Outstanding Bonds to protect and to preserve the security created for the payment of their Bonds and to insure the payment of the Debt Service Requirements of the Bonds promptly as the same become due. During any period of default,so long as any of the Bonds, as to any Debt Service Requirements,are Outstanding, except to the extent it may be unlawful to do so, all Pledged Revenues shall be paid into the Sales and Use Tax Principal and Interest Account, or, in the event of securities hereafter or heretofore issued and Outstanding during such period of time on a parity with the Bonds, shall be applied as provided in Section 5C and Section 5G hereof on an equitable and prorated basis, and used for the purposes therein provided. If the City fails or refuses to proceed as in this Section 1 OD provided,the Owner or Owners of not less than ten percent (10%) in aggregate principal amount of the Bonds then Outstanding, after demand in writing, may proceed to protect and to enforce the rights of the Owners of the Bonds as hereinabove provided;and to that end any such Owners of Outstanding Bonds shall be subrogated to all rights of the City under any agreement or contract involving the Pledged Revenues entered into prior to the effective date of this Ordinance or thereafter while any of the Bonds are Outstanding. Nothing herein requires the City to proceed as provided herein if it determines in good faith and without any abuse of its discretion that such action is likely materially and prejudicially to affect the Owners of the Outstanding Bonds and any Outstanding Parity Securities. 57 E. Evidence of Securitv Owners. Any request.consent or other instrument which this Ordinance may require or may permit to be signed and to be executed by the Owner of am Bonds or other securities may be in one instrument or more than one instrument of similar tenor and shall be signed or may be executed by each Owner in person or by his. her or its attorney appointed in writing. Proof of the execution of any such instrument or of any instrument appointing any such attorney, or the ownership by any Person of the securities. shall be sufficient for any purpose of this Ordinance (except as otherwise herein expressly provided) if made in the following manner: (1) Proof of Execution. The fact and the date of the execution by any Owner of any Bonds or other securities or his.her or its attorney of such instrument may be proved by the certificate, which need not be acknowledged or verified. of any officer of a bank or trust company satisfactory to the City Clerk or of any notary public or other officer authorized to take acknowledgments of deeds to be recorded in the state in which he or she purports to act, that the individual signing such request or other instrument acknowledged to him or her the execution, duly sworn to before such notary public or other officer; the authority of the individual or individuals executing any such instrument on behalf of a corporate Owner of any securities may be established without further proof if such instrument is signed by an individual purporting to be the president or vice-president of such corporation with the corporate seal affixed and attested by an individual purporting to be its secretary or an assistant secretary; and the authority of any Person or Persons executing any such instrument in any fiduciary or representative capacity may be established without further proof if such instrument is signed by a Person or Persons purporting to act in such fiduciary or representative capacity; and (2) Proof of Owners. The amount of Bonds owned by any Person executing any instrument as an Owner of Bonds, and the numbers, dates and other identification thereof, together with the dates of his ownership of the Bonds, shall be determined from the registration books of the City. The amount of other securities, if applicable, owned by any Person executing any instrument as an Owner of such securities. and the numbers, dates and other identification thereof, together with the dates of his ownership,if in bearer form,may be proved by a certificate which need not be acknowledged or verified. in form satisfactory to the City Clerk. executed by a member of a financial firm or by an officer of a bank or trust company. insurance company or financial corporation or other depository satisfactory to the City Clerk, or by any notary public or other officer authorized to take acknowledgments of deeds to be recorded in the state in which he or she purports to act, showing at the date therein mentioned that such Person exhibited to such member, officer, notary public or other officer so authorized to take acknowledgments of deeds or had on deposit with such depository the securities described in such certificate or if in registered form shall be determined from the related registration books; but the City Clerk may nevertheless in his or her discretion require further or other proof in cases where he or she deems the same advisable. 58 F. Warranty Upon Issuance of Bonds. Any of the Bonds as herein provided. when duly executed and registered for the purposes provided for in this Ordinance, shall constitute a warranty by and on behalf of the City for the benefit of each and even,future Owner of any of the Bonds that the Bonds have been issued for a valuable consideration in full conformity with law. G. Bond Insurer as Bond Owner. So long as the Bond Insurance Policy is in effect and the Bond Insurer is not then in default under the Bond Insurance Policy, the Bond Insurer shall be deemed to be the Owner of all Bonds insured by it for purposes of exercising all rights, privileges and remedies, waiving defaults, granting consents or initiating suits, actions or proceedings at law or in equity pursuant to this Section 10. unless the Bond Insurer has provided written notice to the City that it waives such rights. The rights granted to the Bond Insurer under this Ordinance to request, consent to or direct any action are rights granted to the Bond Insurer in consideration of its issuance of the Bond Insurance Policy. Any exercise by the Bond Insurer of its contractual rights shall not be construed or deemed to be taken for the benefit of or on behalf of the Owners of the Bonds nor shall such action evidence any position of the Bond Insurer, affirmative or negative, as to whether consent of the Owners is required in addition to consent of the Bond Insurer. H. Immunities of Purchaser. The Purchaser and any associate thereof are under no obligation to any Owner of the Bonds for any action that they may not take or in respect of anything that they may or may not do by reason of any information contained in any reports or other documents received by them under the provisions of this Ordinance. The immunities and exemption from liability of the Purchaser and any associate thereof hereunder extend to their officers,directors, successors, assigns, employees and agents. Section 11. Amendment of Ordinance. A. Amendment of Ordinance Not Requiring Consent of Bond Owners and Bond Insurer. The City may,without the consent of the Owners of the Bonds or the Bond Insurer,but with notice to the Bond Insurer, adopt such ordinances supplemental hereto (which amendments shall thereafter form a part hereof) for any one or more or all of the following purposes: (1) To cure or correct any formal defect, ambiguity or inconsistent provision contained in this Ordinance, (2) To appoint successors to the Paying Agent,Registrar,Transfer Agent, Securities Depository or Escrow Bank; (3) To designate a trustee for the Owners of the Bonds,to transfer custody and control of the Pledged Revenues to such trustee, and to provide for the rights and obligations of such trustee; 59 (4) To add to the covenants and agreements of the City or the limitations and restrictions on the City set forth herein: (5) To pledge additional revenues,properties or collateral to the payment of the Bonds; (6) To cause this Ordinance to comply with the Trust Indenture Act of 1939, as amended from time to time; or (7) To effect any such other changes hereto that do not in the opinion of nationally recognized bond counsel materially adversely affect the interests of the Owners of the Bonds. B. Amendment of Ordinance Requiring Consent of Bond Owners and Bond Insurer. Exclusive of the amendatory ordinances covered by Section 11 A hereof,this Ordinance may be amended or modified by ordinances or other instruments duly adopted by the Council, without receipt by it of any additional consideration but with the written consent of the Owners of sixty-six percent (66%) in aggregate principal amount of the Bonds Outstanding at the time of the adoption of such amendatory ordinance and of the Bond Insurer,provided that no such amendatory ordinance shall permit the following without the written consent of one hundred percent(100%) in aggregate principal amount of the Bonds Outstanding and of the Bond Insurer: (1) Changing Payment. A change in the maturity or in the terms of the principal of an), Outstanding Bond or any installment of interest thereon; or (2) Reducing Return. A reduction in the principal amount of any Bond or the rate of interest thereon, without the consent of the Owner of the Bond; or (3) Prior Lien. The creation of a lien upon or a pledge of revenues ranking prior to the lien or to the pledge created by this Ordinance; or (4) Modifying Amendment Terms. A reduction of the principal amount or percentages of Bonds, or any modification otherwise affecting the description of Bonds, otherwise changing the consent of the Owners of Bonds,that may be required herein for any amendment hereto; or (5) Priorities Among Bonds or Parity Securities. The establishment of priorities as among Bonds issued and Outstanding under the provisions of this Ordinance or as among Bonds and other Securities on a parity therewith; or 60 (6) Partial Modification. Anv modifications otherwise materially and prejudicially affecting the rights or privileges of the Owners of less than all of the Bonds then Outstanding. Whenever the Council proposes to amend or modify- this Ordinance under the provisions of this Section 1113, the City shall give notice of the proposed amendment by mailing such notice to all Owners of Bonds at the addresses appearing on the registration books of the City and to the Bond Insurer. Such notice shall briefly set forth the nature of the proposed amendment and shall state that a copy of the proposed amendatory ordinance or other instrument is on file in the office of the City Clerk for public inspection. The City shall also send copies of any amendment or modification of this Ordinance to Standard & Poor's Ratings Services, a division of The McGraw- Hill Companies, Inc. C. Time for and Consent to Amendment. Whenever at any time within one (1) year from the date of the completion of the notice required to be given by Section 11 B hereof there shall be filed in the office of the City Clerk an instrument or instruments executed by the Owners of at least sixty-six percent(66%)in aggregate principal amount of the Bonds then Outstanding and the Bond Insurer,which instrument or instruments shall refer to the proposed amendatory ordinance or other instrument described in such notice and shall specifically consent to and approve the adoption of such ordinance or other instrument,thereupon,but not otherwise,the Council may adopt such amendatory ordinance or instrument and such ordinance or instrument shall become effective. If the Owners of at least sixty-six percent (66%) in aggregate principal amount of the Bonds then Outstanding, at the time of the adoption of such amendatory ordinance or instrument, or the predecessors in title of such Owners,and the Bond Insurer shall have consented to and approved the adoption thereof as herein provided,no Owner of any Bond, whether or not such Owner shall have consented to or shall have revoked any consent as herein provided, shall have any right or interest to object to the adoption of such amendatory ordinance or other instrument or to object to any of the terms or provisions therein contained or to the operation thereof or to enjoin or restrain the City from taking any action pursuant to the provisions thereof. Any consent given by the Owner of a Bond or the Bond Insurer pursuant to the provisions hereof shall be irrevocable for a period of six(6)months from the date of the completion of the notice above provided for and shall be conclusive and binding upon all future Owners of the same Bond during such period and upon the Bond Insurer. Such consent may be revoked at any time after six (6)months from the completion of such notice, by the Owner who gave such consent or by a successor in title, or by the Bond Insurer. as the case may be, by filing notice of such revocation with the City Clerk, but such revocation shall not be effective if the Owners of sixty-six percent(66%)in aggregate principal amount of the Bonds Outstanding.and the Bond Insurer, as herein provided,prior to the attempted revocation, shall have consented to and approved the amendatory instrument referred to in such revocation. D. Unanimous Consent. Notwithstanding anything in the foregoing provisions contained, the terms and the provisions of this Ordinance, or of any ordinance or instrument amendatory thereof, and the rights and the obligations of the City and of the Owners of the Bonds 61 may be modified or amended in any respect (except as would adversely affect the rights of the Owners of any Parity Securities) upon the adoption by the City and upon the filing with the City Clerk of an instrument to that effect and with the consent of the Owners of all the then Outstandino Bonds and the Bond Insurer,such consent to be given in the manner provided in Section 11 C hereof. and no notice to Owners of Bonds shall be required as provided in Section I 1 B hereof nor shall the time of consent be limited except as may be provided in such consent. E. Exclusion of Bonds. At the time of any consent or of other action taken hereunder the Registrar shall furnish to the City Clerk a certificate, upon which the City Clerk may rely, describing all Bonds to be excluded for the purpose of consent or of other action or of any calculation of Outstanding Bonds provided for hereunder.and,with respect to such excluded Bonds. the City shall not be entitled or required with respect to such Bonds to give or obtain any consent or to take any other action provided for hereunder. F. Notation on Bonds. Any of the Bonds delivered after the effective date of any action taken as provided in Section 11 B hereof, or Bonds Outstanding at the effective date of such action, may bear a notation thereon by endorsement or otherwise in form approved by the Council as to such action; and if any such Bonds so delivered after such date does not bear such notation, then upon demand of the Owner of any Bond Outstanding at such effective date and upon presentation of his Bond for such purpose at the principal office of the City, suitable notation shall be made on such Bond by the City Clerk as to any such action. If the Council so determines, new Bonds so modified as in the opinion of the Council to conform to such action may be prepared, executed and delivered: and upon demand of the Owner of any Bond then Outstanding, new Bonds shall be prepared,executed and exchanged without cost to such Owner for Bonds then Outstanding. G. Proof of Instruments and Bonds. The fact and date of execution of any instrument under the provisions of this Section 11, the amount and number of the Bonds owned by any Person executing such instrument, and the date of his registering the same may be proved as provided by Section l0E hereof. Section 12. Miscellaneous. A. Character of Ajzreement. None of the covenants.agreements,representations, or warranties contained herein or in the Bonds shall ever impose or shall be construed as imposing any liability,obligation,or charge against the City(except for the special funds pledged therefor)or against the general credit of the City payable out of general funds. Neither shall the covenants, agreements,representations, or warranties contained herein or in the Bonds impose or be construed as imposing any liability, obligation, or charge against the Bond Insurer. B. No Pledge of Property. The payment of the Bonds is not secured by an encumbrance,mortgage or other pledge of property of the City except for the Pledged Revenues.No 62 property of the City,subject to such exception with respect to the Pledged Revenues,pledged for the payment of the Bonds, shall be liable to be forfeited or taken in payment of the Bonds. C. Statute of Limitations. No action or suit based upon any Bond or other obligation of the City shall be commenced after it is barred by any statute of limitations pertaining thereto. Any trust or fiduciary relationship between the City and the Owner of any Bond or the obligee regarding any such obligation shall be conclusively presumed to have been repudiated on the Maturity Date or other due date thereof unless the Bond is presented for payment or demand for payment of such other obligation is otherwise made before the expiration of the applicable limitation period. Any moneys from whatever source derived remaining in any fund or account reserved, pledged or otherwise held for the payment of any such obligation, action or suit. the collection of which has been barred, shall revert to such fund as the Council shall provide by ordinance. Nothing herein prevents the payment of any such Bond or other obligation after an action or suit for its collection has been barred if the Council deems it in the best interests of the City or the public so to do and orders such payment to be made. D. Delegated Duties. The officers of the City are hereby authorized and directed to enter into such agreements and take all action necessary or appropriate to effectuate the provisions of this Ordinance and to comply with the requirements of law, including, without limitation: (1) Printing. The printing of the Bonds or, if necessary or desirable,the preparation of typewritten Bonds as provided herein; (2) Execution.Authentication.Registration and Delivery. The execution. authentication and registration of the Bonds and the delivery of the Bonds to the Purchaser pursuant to the provisions of this Ordinance; (3) Information. The assembly and dissemination of financial and other information concerning the City and the Bonds; (4) Official Statement. The preparation of a final official statement in substantially the same form as the Preliminary Official Statement with such changes as may be approved by the Financial Officer and the use thereof in connection with the offering and sale of the Bonds; and (5) Closing Documents. The execution and delivery of the Bond Insurance Commitment,the Surety Bond Commitment, the Bond Purchase Agreement, the Escrow Agreement, the Letter of Representations, the Guaranty Agreement and such certificates as may be reasonably required by the Purchaser, relating. inter alia, to: (a) The signing of the Bonds; 63 (b) The tenure and identity of the officials of the City: (c) If in accordance with fact, the absence of litigation, pending or threatened, affecting the validity of the Bonds, (d) The tax treatment of interest on the Bonds under federal and State income tax laws; (e) The delivery of the Bonds and the receipt of the Bond purchase price; (f) The accuracy and completeness of information provided in the official statement prepared for prospective buyers of the Bonds. E. Successors. Whenever herein the City is named or is referred to, such provision shall be deemed to include any successors of the City, whether so expressed or not. All of the covenants, stipulations, obligations and agreements by or on behalf of and other provisions for the benefit of the City contained herein shall bind and inure to the benefit of any officer, board, district, commission, authority, agency, instrumentality or other Person or Persons to whom or to which there shall be transferred by or in accordance with law any right,power or duty of the City or of its respective successors, if any, the possession of which is necessary or appropriate in order to comply with any such covenants, stipulations, obligations, agreements or other provisions hereof. F. Riehts and Immunities. Except as herein otherwise expressly provided, nothing herein expressed or implied is intended or shall be construed to confer upon or to give to any Person, other than the City, the Bond Insurer, and the Owners from time to time of the Bonds, any right, remedy or claim under or by reason hereof or any covenant, condition or stipulation hereof. All the covenants, stimulations,promises and agreements herein contained by and on behalf of the City shall be for the sole and exclusive benefit of the City, the Bond Insurer and any Owner of any of the Bonds. No recourse shall be had for the payment of the Debt Service Requirements of the Bonds or for any claim based thereon or otherwise upon this Ordinance authorizing their issuance or any other ordinance or instrument pertaining thereto, against any individual member of the Council, or any officer or other agent of the City,past,present or future,either directly or indirectly through the City, or otherwise,whether by virtue of any constitution, statute or rule of law or by the enforcement of any penalty or otherwise, all such liability, if any, being by the acceptance of the Bonds and as a part of the consideration of their issuance specially waived and released. G. Notices. Etc. Any notices, authorizations, requests or demands required to be given hereunder shall also be sent by certified or registered first-class postage prepaid mail addressed as follows: 64 MBIA Insurance Corporation 113 King Street Armonk, New York 10504 Attention: Insured Portfolio Management The Bond Insurer may designate,by written notice to the Financial Officer of the City,any different address to which subsequent notices, authorizations, requests or demands shall be sent and may designate any other reasonable means of communication. H. Facsimile Sip-natures. Pursuant to the Uniform Facsimile Signature of Public Officials Act,part 1 of article 55 of title 11, Colorado Revised Statutes, as amended,the Mayor,the City Clerk and the Financial Officer of the City shall forthwith, and in any event prior to the time the Bonds are delivered to the Purchaser, file with the Colorado Secretary of State their manual signatures certified by them under oath. I. Ordinance Irrepealable. This Ordinance is,and shall constitute,a legislative measure of the City and after any of the Bonds are issued, this Ordinance shall constitute an irrevocable contract between the City and the Owner or Owners of the Bonds of which the Bond Insurer shall be a third-party beneficiary; and this Ordinance, subject to the provisions of Section 9 and Section 11 hereof,if any Bonds are in fact issued,shall be and shall remain irrepealable until the Bonds, as to all Debt Service Requirements, shall be fully paid, cancelled or discharged, as herein provided. J. Statutory Limitations Met. The Council hereby determines that the provisions and limitations of the Refunding Act and any other applicable law imposed on the issuance of the Bonds have been met. K. Ratification. All action not inconsistent with the provisions of this Ordinance heretofore taken by the City or its officers, and otherwise by the City directed toward the issuance, sale and delivery of the Bonds for that purpose, be, and the same hereby is, ratified, approved and confirmed. L. Repealer. All ordinances,resolutions,bylaws,orders,and other instruments, or parts thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any ordinance, resolution, bylaw, order, or other instrument, or part thereof, heretofore repealed. M. Severability. If any section, subsection,paragraph,clause or other provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability thereof shall not affect any of the remaining sections, subsections, paragraphs, clauses or provisions of this Ordinance. 65 READ,AMENDED,ADOPTED ON SECOND READING AS AMENDED,AND ORDERED PUBLISHED BY NUMBER AND TITLE ONLY this 17th day of April, 2001. CITY OF FORT COLLINS, COLOR-ADO �J By: (CITY) Mayor , (SEAL) ATTEST: "a L,h fl A City Clerk 66