Department of Finance city of chicago
September 28, 2016
Susana Mendoza City Clerk
121 North LaSalle Street City Hall - Room 107 Chicago, Illinois 60602
RE: City of Chicago
Chicago O'Hare International Airport
Commercial Paper Notes 2009 Program - 2016 Issue
Dear Ms. Mendoza:
Attached is the Certificate Pursuant to Ordinance which is required to be filed with your office pursuant to Part E. Article I ofthe ordinance adopted by the City Council of the City of Chicago (the ''City Council'*) on November 18, 2009. An executed copy ofthe Commercial Paper Indenture and the Issuance Request are also included.
Chief Financial Officer
121 NORTH LASALLK STREET, SUTTE 700, CHICAGO. ILLINOIS 60602
Please direct this filing to the City Council.
C-j
CO
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CERTIFICATE PURSUANT TO ORDINANCE
CITY OF CHICAGO Chicago O'Hare International Airport Commercial Paper Notes $420,000,000 Maximum Aggregate Principal Amount 2009 Program - 2016 Issue Series A-1 through C-l (AMT), Series A-2 through C-2 (Non-AMT) and Series A-3 through C-3 (Taxable)
Pursuant to the provisions of Part E, Article I of the Ordinance adopted by the City Council ofthe City of Chicago (the "City) on November 18, 2009 (the "Ordinance") authorizing the issuance of the City's Chicago O'Hare International Airport, Commercial Paper Notes, 2009 Program, in one or more series, the undersigned, Carole L. Brown, the duly qualified and acting Chief Financial Officer of the City, hereby certifies as follows:
(a) Except as otherwise defined herein, all defined terms contained in the Ordinance shall have the meanings, respectively, in this Certificate as the terms are defined in the Ordinance.
(b) Pursuant to the provisions of Part E, Article 1, Section 1.5(d) and (e) ofthe Ordinance, the undersigned Chief Financial Officer hereby determines that the aggregate principal amount of CP Notes outstanding at any one time under the 2009 Program shall not exceed $420,000,000 as the aggregate principal amount outstanding at any one time that shall be secured by a CP Credit Facility and that the actual (i) principal amount and date of each CP Note delivered, (ii) the rate and amount of interest thereon, (iii) the maturity date thereof (not later than 270 days after its date of issuance) and (iv) the Series designation thereof, shall be set forth in an Issuance Request delivered by the undersigned or other Designated Representative pursuant to the CP Indenture at the time of delivery of the CP Notes. A copy of the executed CP Indenture (the form of which is authorized by Part E, Article I, Section 1.6 of the Ordinance) and the first Issuance Request with respect to CP Notes issued under the CP Indenture are submitted concurrently herewith.
Pursuant to the Ordinance, the undersigned Chief Financial Officer designates Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., Loop Capital Markets LLC MUFG Securities Americas Inc. and Ramirez & Co. Inc. each as a non-exclusive Dealer pursuant to the respective CP Dealer Agreement each entered into relating to the 2009 Program CP Notes.
Pursuant to Part E, Article I, Section 1.6 ofthe Ordinance, the undersigned Chief Financial Officer designates The Bank of New York Mellon Trust Company, N.A., as trustee under the CP Indenture and, pursuant to Part E, Article I, Section 1.8 of the Ordinance, the undersigned Chief Financial Officer designates The Bank of New York Mellon Trust Company, N.A., as the CP Paying Agent with respect to the 2009 Program CP Notes.
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(f) Pursuant to the Ordinance, the undersigned Chief Financial Officer
designates Bank of America, N.A., as the provider of the initial CP Credit Facility with
respect to the 2009 Program CP Notes with the Series A designation, The Bank of
Tokyo-Mitsubishi UFJ, Ltd., acting through its New York Branch, as the provider of the
initial CP Credit Facility with respect to the 2009 Program CP Notes with the Series B
designation and Barclays Bank PLC as the provider of the initial CP Credit Facility with
respect to the 2009 Program CP Notes with the Series C designation.
(g) As required by the Ordinance, this Certificate has been filed with the City
Clerk.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, I have hereunto subscribed my official signature this day of September, 2016.
Chief Financial Officer
Signature Page
TRUST INDENTURE
Between CITY OF CHICAGO
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
Dated as of September 1, 2016
RELATING TO CITY OF CHICAGO CHICAGO O'HARE INTERNATIONAL AIRPORT COMMERCIAL PAPER NOTES 2009 PROGRAM
TABLE OF CONTENTS
ARTICLE I Definitions; General Authorization; Ratification|910|Section 1.01. Definitions|910|Section 1.02. General Authorization 15
Section 1.03. Interpretation 15
ARTICLE II The Commercial Paper Notes 15
Section 2.01. Authorized Amount of Commercial Paper Notes; Terms and Description of
Commercial Paper Notes 15
Section 2.02. Payment 17
Section 2.03. Execution and Authentication of Commercial Paper Notes; Limited
Obligation 18
Section 2.04. Forms of Commercial Paper Notes and Authentication Certificate 18
Section 2.05. Book-Entry System 19
Section 2.06. Conditions Precedent to Delivery of Commercial Paper Notes 21
Section 2.07. Owners of Commercial Paper Notes 23
Section 2.08. Mutilated, Lost, Stolen or Destroyed Notes 24
Section 2.09. Transfer or Exchange of Notes 24
Section 2.10. Destruction of Notes 25
Section 2.11. Temporary Notes 25
Section 2.12. Nonpresentment of Notes 25
ARTICLE III Pledge of Available Pledged Revenues and Post Defeasance Revenues 26
Section 3.01. Pledges Securing Notes 26
Section 3.02. Deposit of Revenues; Notification of Pledge of Available Pledged Revenues
and Post Defeasance Revenues 26
ARTICLE IV Application of Commercial Paper Note Proceeds 27
Section 4.01. Creation of Funds and Accounts 27
Section 4.02. Deposit of Proceeds of Commercial Paper Notes 28
Section 4.03. Application of Moneys in the Construction Fund 28
Section 4.04. Deposits Into and Uses of the Commercial Paper Debt Service Account and
the Bank Payment Account 29
Section 4.05. Drawings Under a Letter of Credit 30
ARTICLE V The Bank Notes 31
Section 5.01. Authorization and Terms of Bank Notes 31
Section 5.02. Limited Obligations 31
Section 5.03. Form of Bank Notes 31
Section 5.04. No Transfer of Bank Notes 32
Section 5.05. Deposits of Available Pledged Revenues in Bank Note Account 32
(i)
ARTICLE VI Covenants 32
Section 6.01. Tax Covenants 32
Section 6.02. Taxable Notes 32
Section 6.03. Letter of Credit 33
Section 6.04. Affirmative Covenants as to Application of Revenues 33
ARTICLE VII Issuing and Paying Agent; Dealers 33
Section 7.01. Appointment of Issuing and Paying Agent 33
Section 7.02. Reports and Records 34
Section 7.03. Resignation and Replacement of Issuing and Paying Agent 34
Section 7.04. Dealers 35
ARTICLE VIII Trustee 35
Section 8.01. Acceptance of Trusts 35
Section 8.02. Duties of Trustee 36
Section 8.03. Rights of Trustee 36
Section 8.04. Individual Rights of Trustee 38
Section 8.05. Trustee's Disclaimer 38
Section 8.06. Notice of Defaults 38
Section 8.07. Compensation of Trustee 38
Section 8.08. Eligibility of Trustee 38
Section 8.09. Replacement of Trustee 39
Section 8.10. Successor Trustee by Merger 39
Section 8.11. Other Agents 39
Section 8.12. Several Capacities 39
Section 8.13. Accounting Records and Reports of the Trustee 39
Section 8.14. Executive Order 2011-4 40
ARTICLE IX Events of Default and Remedies of Noteholders 42
Section 9.01. Events of Default 42
Section 9.02. Remedies 43
Section 9.03. Restoration to Former Position 43
Section 9.04. Commercial Paper Noteholders' Right To Direct Proceedings 43
Section 9.05. Limitation on Right To Institute Proceedings 44
Section 9.06. No Impairment of Right To Enforce Payment 44
Section 9.07. Proceedings by Trustee Without Possession of Commercial Paper Notes 44
Section 9.08. No Remedy Exclusive 44
Section 9.09. No Waiver of Remedies 45
Section 9.10. Application of Moneys 45
Section 9.11. Severability of Remedies 46
Section 9.12. Additional Events of Default and Remedies 46
(ii)
ARTICLE X Miscellaneous 46
Section 10.01. Substitute Letter of Credit 46
Section 10.02. Timeliness of Deposits 47
Section 10.03. Waiver of Events of Default 47
Section 10.04. Defeasance of Commercial Paper Notes 47
Section 10.05. Bank to Control Remedies 47
Section 10.06. Payments or Actions Occurring on Non-Business Days 48
Section 10.07. Notices to Rating Agencies 48
Section 10.08. Parties in Interest 48
ARTICLE XI Supplemental Indentures 49
Section 11.01. Limitations 49
Section 11.02. Supplemental Indentures Not Requiring Consent of Noteholders 49
Section 11.03. Supplemental Indentures Requiring Consent of Noteholders 50
Section 11.04. Effect of Supplemental Indenture 52
Section 11.05. Supplemental Indentures To Be Part of This Indenture 52
EXHIBITS
Exhibit A (Form of Master Note) Exhibit B (Form of Bank Note)
Exhibit C (Form of 2009 Program Series Construction Fund Requisition)
Exhibit D (Designation of Series A through C Notes)
(iii)
TRUST INDENTURE
THIS TRUST INDENTURE, dated as of September 1, 2016 (this "Indenture"), is between the City of Chicago (the "City"), a municipal corporation and a home rule unit of local government duly organized and validly existing under the Constitution and laws of the State of Illinois, and The Bank of New York Mellon Trust Company, N.A. (the "Trustee"), a national banking association duly organized, validly existing and authorized to accept the duties and obligations set out in this Trust Indenture by virtue of the laws of the United States of America and having a corporate trust office located in the City of Chicago, Illinois, as trustee,
WITNESSETH:
WHEREAS, the City is a home rule unit of local government, duly organized and existing under the laws of the State of Illinois, and in accordance with the provisions of Section 6(a) of Article VII of the 1970 Constitution of the State of Illinois is authorized to own and operate commercial and general aviation facilities; and
WHEREAS, the City currently owns and operates an airport known as Chicago O'Hare International Airport (the "Airport"); and
WHEREAS, the City operates the Airport as a revenue based enterprise primarily used and intended to be used to provide air transportation services to the general public; and
WHEREAS, the City has heretofore determined to improve and expand the Airport and has heretofore issued and may hereafter issue its Senior Lien Bonds (as hereinafter defined) and its Junior Lien Obligation Bonds (as hereinafter defined) in accordance with the Senior Lien Indenture (as hereinafter defined) or otherwise to pay the cost of improvements to, and expansions of, the Airport, including the funding of necessary reserves; and
WHEREAS, the Senior Lien Indenture and the indentures entered into in accordance therewith permit the City to finance Airport facilities through the issuance of bonds or other forms of debt instruments which are secured by a pledge of, or are payable from, revenues of the Airport on a basis subordinate to the interests, liens or other forms of encumbrance benefitting and securing Senior Lien Bonds and Junior Lien Obligation Bonds; and
WHEREAS, the City has previously authorized the issuance of an amount outstanding at any one time of not to exceed $1,000,000,000 principal amount (the "Authorized Amount") of City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes pursuant to an ordinance duly adopted by the City Council of the City on November 18, 2009, authorizing the issuance of such Commercial Paper Notes (the "CP Note Ordinance"); and
WHEREAS, the City wishes to provide in this Indenture for the issuance from time to time, in an aggregate amount outstanding at any one time not exceeding the Authorized Amount, of its Commercial Paper Notes, as authorized by the CP Note Ordinance, designated as provided herein; and
WHEREAS, the City wishes to provide in this Indenture that such Commercial Paper Notes and Bank Notes (as herein defined) be payable from and secured (1) by the pledge of Available Pledged Revenues (as hereinafter defined) and (2) to the extent herein provided, by a pledge of Post Defeasance Revenues (as hereinafter defined) and the Trustee is willing to accept the trusts provided in this Indenture;
NOW, THEREFORE, the City and the Trustee agree as follows each for the benefit of the other and/or the benefit of holders of the Commercial Paper Notes secured by this Indenture:
ARTICLE I
Definitions; General Authorization; Ratification
Section 1.01. Definitions. In addition to the definitions set forth in Exhibit D hereto, the following definitions shall, for all purposes of this Indenture and supplemental hereto, have the meanings herein specified unless the context clearly requires otherwise:
"Advances" means payments made by a Bank as a result of draws made on the related Letter of Credit to pay principal of and/or interest on Commercial Paper Notes. Advances may be in the form of "Term Loans," as defined in the Reimbursement Agreements.
"Airport Project" means any capital improvement at or related to the Airport or the acquisition of land or any interest in land beyond the then-current boundaries ofthe Airport, or any cost or expense paid or incurred in connection with or related to the Airport whether or not of a capital nature and whether is not related to the facilities at the Airport, including but not limited to, amounts needed to satisfy any judgment and the cost of any noise mitigation programs.
"Authenticating Agent" means, with respect to any Series, each person or entity, if any, designated by the City herein or in any Supplemental Indenture to manually sign the certificate of authentication on the Commercial Paper Notes, and its successors and assigns, and any other person or entity which may at any time be substituted for it pursuant hereto. Initially, the Authenticating Agent shall be the Issuing and Paying Agent.
"Authorized Amount" means $420,000,000 principal amount; provided that such amount may be issued in one or more Series; and provided, further, that the aggregate amount outstanding under this Indenture at any one time among all Series may not exceed such amount.
"Authorized City Representative" means the Chief Financial Officer of the City or such other officer or employee of the City or other person, which other officer, employee or person has been designated by the City as an Authorized City Representative by written notice delivered by the Chief Financial Officer to the Trustee and the Issuing and Paying Agent.
"Available Moneys" means moneys which are continuously on deposit with the Trustee or the Issuing and Paying Agent in trust for the benefit of the holders of the Commercial Paper Notes in a separate and segregated account in which only Available Moneys are held,
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which moneys constitute proceeds of (i) the Commercial Paper Notes received contemporaneously with the initial issuance and sale of the Commercial Paper Notes, (ii) a drawing under a Letter of Credit or payments otherwise made under a substitute Letter of Credit, (iii) refunding obligations or other funds for which the Trustee has received a written opinion of nationally recognized counsel experienced in bankruptcy matters and acceptable to an Authorized City Representative to the effect that payment of such moneys to the holders of the Commercial Paper Notes would not constitute an avoidable preference under Section 547 of the United States Bankruptcy Code if the City were to become a debtor under the United States Bankruptcy Code, or (iv) the investment of funds qualifying as Available Moneys under the foregoing clauses.
"Available Pledged Revenues" means all sums, amounts, funds or moneys which may be withdrawn from the Commercial Paper Account created and established within the Junior Lien Obligation Debt Service Fund pursuant to the provisions of the Senior Lien Indenture.
"Bank" or "Banks" means the issuer or issuers of any Letter of Credit then outstanding and effective hereunder. As of the date of the initial Issuance Request, the Banks are (i) Barclays Bank PLC, (ii) The Bank of Tokyo-Mitsubishi, UFJ, Ltd., and (iii) Bank of America, N-A., and each has issued a Letter of Credit securing four separate Series of Notes identified on Exhibit D hereto.
"Bank Note" means a note or notes issued by the City pursuant to Section 5.01 and evidencing all or any portion of any unreimbursed Advances made by a Bank or Banks and designated as "City of Chicago Bank Notes, Chicago O'Hare International Airport, Commercial Paper Notes 2009 Program."
"Bank Note Account" means the Bank Note Debt Service Account established pursuant to Section 4.01(b)(3).
"Bank Note Payment Date" means a date on which principal of or interest on a Bank Note is due and payable, including both scheduled principal and interest and principal and interest payable upon prepayment of a Bank Note.
"Bank Obligations" means obligations payable to a Bank under the related Reimbursement Agreement.
"Bank Rate" has the meaning set forth in the Reimbursement Agreement pursuant to which a Bank Note is delivered by the City to a Bank or Banks.
"Bond Counsel" means an attorney or firm or firms of attorneys of national recognition selected or employed by the City with knowledge and experience in the field of municipal finance.
"Business Day" means any day other than (i) a Saturday, Sunday or other day on which commercial banks in New York, New York, Chicago, Illinois, or the city in which is located the office of the Trustee, or the city in which is located the office of each Bank at which
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demands for a draw on a Letter of Credit will be made, are authorized or required by law to close, or (ii) a day on which the New York Stock Exchange is closed.
"City" means the City of Chicago, a municipality and a home rule unit of local government duly organized and validly existing under the Constitution and laws of the State of Illinois.
"Closing Date" means the date on which the initial Letter of Credit was issued by
a Bank.
"Code" means the Internal Revenue Code of 1986, as amended, and the applicable United States Treasury Regulations proposed or in effect with respect thereto.
"Commercial Paper Bank Payment Account" or "Bank Payment Account" means any of the accounts by that name established pursuant to Section 4.01(b)(2).
"Commercial Paper Debt Service Account" or "Debt Service Account" means any ofthe accounts by that name established pursuant to Section 4.01(b)(1).
"Commercial Paper Notes" or "Notes" means notes of the City with a maturity of not more than 270 days from the date of issuance, and which are authorized to be issued and reissued from time to time under Article II of this Indenture (in the case of the Series A through C Notes).
"Commercial Paper Parity Notes" means any commercial paper note of the City designated by the City as having a priority right for payment from the Junior Lien Obligation Debt Service Fund (maintained under the Senior Lien Indenture) on a parity with the priority rights for payment from the Junior Lien Obligation Debt Service Fund granted as security for the payment of Commercial Paper Notes and Bank Notes.
"Construction Fund" means the fund by that name established pursuant to Section
4.01(a).
"Costs of Issuance" means all reasonable costs incurred by the City in connection with the issuance of a Series, including, but not limited to:
counsel fees related to the issuance of such Series (including, but not limited to, bond counsel, Bank counsel and the Trustee's counsel);
financial advisor fees incurred in connection with the issuance of such
Series;
rating agency fees;
the initial fees and expenses of the Trustee and the Issuing and Paying
Agent;
accountant fees related to the issuance of such Series;
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printing and publication costs; and
any other fee or cost incurred in connection with the issuance of such Series that constitutes an "issuance cost" within the meaning of Section 147(g) of the Code.
"Credit Agreement Notes" means any note or notes issued by the City under the Airport Line of Credit Program as authorized by the 2012 O'Hare Financing Ordinance adopted by the City Council of the City on March 14, 2012.
"Credit Agreement Parity Notes" means any Credit Agreement Note designated by the City as having a priority right for payment from the Junior Lien Obligation Debt Service Fund (maintained under the Senior Lien Indenture) on a parity with the priority rights for payment from the Junior Lien Obligation Debt Service Fund granted as security for the payment of Commercial Paper Notes and Bank Notes.
"Dealer" means each of (i) Merrill Lynch, Pierce, Fenner & Smith Incorporated; (ii) Loop Capital Markets, LLC, (iii) Barclays Capital Inc., (iv) MUFG Securities Americas, Inc., and (v) Ramirez & Co. Inc.; for as long as it is acting as a dealer for the City with respect to the Notes, or any successor Dealer appointed pursuant to the Dealer Agreement, as approved by the City.
"Dealer Agreement" means each of the Commercial Paper Dealer Agreements, dated as of September 1, 2016, between the City and the Dealer, as amended and supplemented from time to time, and any such agreement with any successor Dealer.
"Debt Service Fund" means the fund by that name established pursuant to Section
4.01(b).
"Designated Representative" means the Chief Financial Officer of the City and if the Chief Financial Officer is not available, the City Comptroller of the City, and any additional individuals designated to complete and deliver Issuance Requests and who have been identified and whose signatures have been certified in a certificate of an Authorized City Representative delivered to the Issuing and Paying Agent.
"DTC" means The Depository Trust Company, as Note Depository for one or more Series of Commercial Paper Notes, and its successors and assigns.
"Electronic Means" means the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
"Event of Default" means any one or more of those events set forth in Section 9.01, which Event of Default has not been cured.
"Expiration Date" means the date of expiration of a Letter of Credit then in effect (as such date may be extended from time to time).
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"Final Drawing Notice" means a notice delivered by a Bank under its related Reimbursement Agreement at any time when an event of default has occurred and is continuing thereunder that provides, among other things, that the Letter of Credit issued by such Bank under such Reimbursement Agreement will terminate not earlier than 15 calendar days after the date of receipt by the Issuing and Paying Agent of said notice.
"First Lien PFC Bonds" means any bonds of the City authenticated and delivered pursuant to Article II of the First Lien PFC Indenture or replacement indenture. In connection with any First Lien PFC Bonds with respect to which an interest rate swap is in effect or is proposed to be in effect, the term "First Lien PFC Bonds" may include, collectively, both such First Lien PFC Bonds and either such interest rate swap or the obligations of the City under such interest rate swap, as the context requires.
"First Lien PFC Indenture" means the Master Trust Indenture securing Chicago-O'Hare International Airport Passenger Facility Charge Obligations, dated as of January 1, 2008, from the City to The Bank of New York Mellon Trust Company, N.A., as trustee, as amended and supplemented from time to time.
"Fiscal Year" shall mean the period of time beginning on January 1 and ending on December 31 of each year, or such other similar period as the City designates as the fiscal year ofthe Airport.
"Fitch" means Fitch, Inc., a corporation organized and existing under the laws of the State of Delaware, and its successors and assigns, and, if such corporation shall no longer perform the functions of a securities rating agency, any other rating agency designated by the City.
"Government Obligations" means (1) United States Obligations (including obligations issued or held in book-entry form), and (2) prerefunded municipal obligations meeting the following conditions: (a) the municipal obligations are not subject to redemption prior to maturity, or the trustee therefor has been given irrevocable instructions concerning their calling and redemption and the issuer thereof has covenanted not to redeem such obligations other than as set forth in such instructions; (b) the municipal obligations are secured by cash and/or United States Obligations, which United States Obligations may be applied only to interest, principal and premium payments of such municipal obligations; (c) the principal of and interest on the United States Obligations (plus any cash in the escrow fund) are sufficient to meet the liabilities of the municipal obligations; (d) the United States Obligations serving as security for the municipal obligations are held by an escrow agent or trustee; (e) the United States Obligations are not available to satisfy any other claims, including those against the trustee or escrow agent; and (f) the municipal obligations are rated in their highest rating category by Moody's and by S&P if S&P then maintains a rating on such obligations.
"Indenture" means this Trust Indenture, dated as of September 1, 2016, between the City and the Trustee, as this Trust Indenture is supplemented and amended from time to time.
"Insolvent" shall be used to describe the Trustee, the Issuing and Paying Agent or any other agent appointed hereunder or any Bank if (a) such person shall have instituted
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proceedings to be adjudicated a bankrupt or insolvent, shall have consented to the institution of bankruptcy or insolvency proceedings against it, shall have filed a petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy Code or any other similar applicable Federal or state law, or shall have consented to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee or sequestrator or other similar official of itself or of any substantial part of its property, or shall fail to timely controvert an involuntary petition filed against it under the Federal Bankruptcy Code, or shall consent to the entry of an order for relief under the Federal Bankruptcy Code or shall make an assignment for the benefit of creditors or shall admit in writing its inability to pay its debts generally as they become due; or (b) a decree or order by a court having jurisdiction in the premises adjudging such person as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of such person under the Federal Bankruptcy Code or any other similar applicable Federal or state law or for relief under the Federal Bankruptcy Code after an involuntary petition has been filed against such person, or appointing a receiver, liquidator, assignee, trustee or sequestrator or other similar official of such person or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, shall have been entered and shall have continued unabated and in effect for a period of 90 consecutive days.
"Investment Agreement" means an investment agreement or guaranteed investment contract with entities which maintain the following credit and collateral requirements: (a) if a corporation, they are initially rated "Aaa" by Moody's and "AAA" by S&P, if a domestic bank, they are initially rated Thomson "B/C" or better, and if a foreign bank, they are initially rated Thomson "B" or better, (b) if credit quality reaches Moody's "Aa3" or S&P "AA" for corporations, Thomson "B/C" for domestic banks, and Thomson "B" for foreign banks, the provider thereof (1) will respond with adequate collateralization within ten (10) business days, (2) will value assets weekly, and (3) will present collateral at 102% on Government Obligations and 105% on obligations described in item (2) of the definition of Permitted Investments; (c) the provider thereof must maintain minimum credit quality of Moody's "A2" or S&P "A" for corporations, Thomson "C" for domestic banks, or Thomson "B/C" for foreign banks; and (d) the investment agreement will be terminated if credit ratings reach Moody's "A3" or S&P "A-" for corporations, Thomson "C/D" for domestic banks and Thomson "C" for foreign banks.
"Issuance Request" means a request made by the City, acting through a Designated Representative, to the Issuing and Paying Agent for the delivery of a Commercial Paper Note or Commercial Paper Notes.
"Issuing and Paving Agent" means (a) The Bank of New York Mellon Trust Company, N.A., as Issuing and Paying Agent, or (b) any successor which is appointed by the City as Trustee under the Indenture and has entered into an Issuing and Paying Agent Agreement.
"Issuing and Paving Agent Agreement" means the Issuing and Paying Agent Agreement, dated as of September 1, 2016, between the City and the Issuing and Paying Agent, and any and all modifications, alterations, amendments and supplements to the Issuing and
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Paying Agent Agreement, or any other Issuing and Paying Agent Agreement entered into by the City and the Issuing and Paying Agent with respect to the Commercial Paper Notes.
"Junior Lien Obligation Bonds" means all bonds, notes or evidences of indebtedness other than Senior Lien Bonds and Special Facility Revenue Bonds issued by the City in accordance with Section 405 of the Senior Lien Indenture, provided that the term " Junior Lien Obligation Bonds" shall not mean and include the Commercial Paper Notes, the Bank Notes, any Commercial Paper Parity Notes or any Credit Agreement Notes. In connection with any Junior Lien Obligation Bonds with respect to which an interest rate swap is in effect or is proposed to be in effect, the term "Junior Lien Obligation Bonds" may include, collectively, both such Junior Lien Obligation Bonds and either such interest rate swap or the obligations of the City under such interest rate swap, as the context requires.
"Junior Lien Obligation Bonds Indenture" means any indenture or agreement of the City, whether now or hereafter in effect, providing the terms and conditions for the issuance of Junior Lien Obligation Bonds in accordance with the Senior Lien Indenture.
"Junior Lien Obligation Debt Service Fund" means the fund so named and maintained under the Senior Lien Indenture.
"Junior Lien Obligations" shall have the meaning ascribed to such term in the Senior Lien Indenture.
"Letter of Credit" means an irrevocable, transferrable, direct-pay letter of credit issued by one or more Banks for the benefit of the Issuing and Paying Agent on or prior to the date of issuance of the first Commercial Paper Note, together with any substitute irrevocable, transferrable, direct-pay letter of credit accepted by the Issuing and Paying Agent as provided in, and subject to the limitations of, Section 10.01. On the initial issuance of the Commercial Paper Notes, each Bank is issuing a Letter of Credit for four Series of Notes identified on Exhibit D.
"Maximum Rate" means twelve percent (12%) per annum.
"Moody's" means Moody's Investors Service, a corporation existing under the laws of the State of Delaware, its successors and assigns, and, if such corporation shall no longer perform the functions ofa securities rating agency, any other nationally recognized rating agency designated by the City.
"No-Issuance Notice" shall mean a notice from a Bank to cease issuing Commercial Paper Notes secured by a Letter of Credit from such Bank, as provided in each Reimbursement Agreement.
"Nominee" means the nominee of the Note Depository as determined from time to time in accordance with this Indenture or any Supplemental Indenture for any one or more Series of Commercial Paper Notes.
"Non-Private Activity (Non-AMT) Project" means any undertaking, facility or item which is listed or otherwise described in a Tax Certificate of the City being financed or refinanced in whole or in part with the proceeds of the Series A-2 Notes, Series B-2 Notes or
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Series C-2 Notes, which is acquired, constructed, reconstructed, improved, expanded or otherwise financed or refinanced with proceeds of the sale of such Notes and which may include the funding of Parity Notes and Credit Agreement Notes, including Credit Agreement Parity Notes and the refunding of Senior Lien Bonds, Junior Lien Obligation Bonds, First Lien PFC Bonds, Second Lien PFC Bonds and Special Facility Revenue Bonds by providing for the payment of the principal amount to be refunded prior to maturity, any redemption premium and the interest due thereon to the date fixed for redemption.
"Note Depository'' means the securities depository for a Series of Commercial Paper Notes appointed as such pursuant to Section 2.05, and its successors and assigns.
"Noteholder," "holder," "owner" or "registered owner" means the person in whose name any Note or Notes are registered on the books maintained by the Registrar or Trustee.
"Note Proceeds" means proceeds of the sale of the Commercial Paper Notes or any moneys, securities or other obligations that may be deemed to be proceeds of the Commercial Paper Notes within the meaning of the Code.
"Outstanding" when used with respect to Notes shall mean all Notes which have been authenticated and delivered under this Indenture, except:
Notes cancelled or purchased by the Issuing and Paying Agent for cancellation or delivered to or acquired by the Issuing and Paying Agent for cancellation and, in all cases, with the intent to extinguish the debt represented thereby;
Notes in lieu of which other Notes have been authenticated under Section 2.07, 2.08 or 2.09;
Notes that have become due (at maturity or on redemption, acceleration or otherwise) and for the payment of which sufficient moneys, including interest accrued to the due date, are held by the Issuing and Paying Agent or Trustee;
Notes which, under the terms of this Indenture, including Notes defeased pursuant to Section 10.04, are deemed to be no longer Outstanding; and
for purposes of any consent or other action to be taken by the holders of a specified percentage of Notes under this Indenture, Notes held by or for the account of the City or by any person controlling, controlled by or under common control with the City.
"Permitted Investments" shall mean any of the following:
Government Obligations;
obligations, debentures, notes or other evidences of indebtedness issued or guaranteed by any of the following instrumentalities or agencies ofthe United States of America: Federal Home Loan Bank System; Export-Import Bank of the United States; Federal Financing
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Bank; Government National Mortgage Association; Federal National Mortgage Association; Student Loan Marketing Association; Federal Farm Credit Bureau; Farmers Home Administration; Federal Home Loan Mortgage Corporation; and Federal Housing Administration;
direct and general long-term obligations of any state, which obligations are rated in either of the two highest rating categories by Moody's and by S&P, if S&P then maintains a rating on such obligations;
direct and general short-term obligations of any state which obligations are rated in the highest rating category by Moody's and by S&P, if S&P then maintains a rating on such obligations;
interest-bearing demand or time deposits (including certificates of deposit) or interests in money market portfolios issued by state banks or trust companies or national banking associations that are members of the Federal Deposit Insurance Corporation ("FDIC") (including the Trustee and its affiliates), which deposits or interests must either be (a) continuously and fully insured by FDIC and with banks that are rated at least " P-l" or "Aa" by Moody's and at least "A-1" or "AA" by S&P, if such banks are then rated by S&P, or (b) fully secured by United States Obligations (i) which are valued not less frequently than monthly and have a fair market value, exclusive of accrued interest, at least equal to the principal amount of the deposits or interests, (ii) held by the Trustee (who shall not be the provider of the collateral) or by any Federal Reserve Bank or depositary acceptable to the Trustee, (iii) subject to a perfected first lien in the Trustee, and (iv) free and clear from all third-party liens;
long-term or medium-term corporate debt guaranteed by any corporation that is rated by both Moody's and S&P in either of their two highest rating categories;
repurchase agreements which are (a) entered into with banks or trust companies organized under state law, national banking associations, insurance companies or government bond dealers reporting to, trading with and recognized as a primary dealer by the Federal Reserve Bank of New York, and which either are members of the Security Investors Protection Corporation or with a dealer or parent holding company that has an investment grade rating from Moody's and S&P, if S&P then maintains a rating of such institution, and (b) fully secured by investments specified in Section (1) or (2) ofthis definition of Permitted Investments (i) which are valued not less frequently than monthly and have a fair market value, exclusive of accrued interest, at least equal to the amount invested in the repurchase agreements, (ii) held by the Trustee (who shall not be the provider of the collateral) or by any Federal Reserve Bank or a depository acceptable to the Trustee, (iii) subject to a perfected first lien in the Trustee, and (iv) free and clear from all third-party liens;
prime commercial paper of a United States corporation, finance company or banking institution rated at least "P-l" by Moody's and at least "A-1" by S&P, if S&P then maintains a rating on such paper;
shares of a diversified open-end management investment company (as defined in the Investment Company Act of 1940, as amended) or shares in a regulated
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investment company (as defined in Section 851(a) of the Code) that is (a) a money market fund that has been rated in one of the two highest rating categories by Moody's or S&P, including those for which the Trustee or an affiliate receives and retains a fee for services provided to the fund, whether as a custodian, transfer agent, investment advisor or otherwise, or (b) a money market fund or account of the Trustee (or its affiliates) or any state or Federal bank that is rated at least "P-l" or "Aa" by Moody's, if Moody's then maintains a rating on such bank, and at least "A-1" or "AA" by S&P, if S&P then maintains a rating on such bank, or whose one bank holding company parent is rated at least "P-l" or "Aa" by Moody's, if Moody's then maintains a rating on such holding company, and "A-1" or "AA" by S&P, if S&P then maintains a rating on such holding company, or that has a combined capital and surplus of not less than $50,000,000;
Investment Agreements; and
any other type of investment in which the City directs the Trustee to invest, provided that there is delivered to the Trustee a certificate of an Authorized City Representative stating that each of the Rating Agencies then maintaining a rating on the Series has been informed of the proposal to invest in such investment and each of such Rating Agencies has confirmed that such investment will not adversely affect the rating then assigned by such Rating Agency to any Series.
"Person" means an individual, a corporation, a limited liability company, a partnership (including a limited partnership), an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
"Post Defeasance Revenues" means Revenues to be derived on and after the date that the pledge of Revenues contained in Section 204 of the Senior Lien Indenture is discharged and satisfied as provided in Section 1101 ofthe Senior Lien Indenture.
"Principal Office" means the principal office of the Issuing and Paying Agent for purposes of performing its duties under this Indenture, which principal office has been designated in writing by the Issuing and Paying Agent to an Authorized City Representative.
"Private Activity (AMT) Project" means any undertaking, facility or item which is listed or otherwise described in a Tax Certificate of the City as being financed or refinanced in whole or in part with the proceeds of Series A-1 Notes, Series B-l Notes or Series C-l Notes, which is acquired, constructed, reconstructed, improved, expanded or otherwise financed or refinanced with proceeds of the sale of such Notes and which may include the funding of Parity Notes and Credit Agreement Notes, including Credit Agreement Parity Notes and the refunding of Senior Lien Bonds, Junior Lien Obligation Bonds, First Lien PFC Bonds, Second Lien PFC Bonds and Special Facility Revenue Bonds by providing for the payment of the principal amount to be refunded prior to maturity, any redemption premium and the interest due thereon to the date fixed for redemption.
"Private Activity (Non-AMT) Project" means any undertaking, facility or item which is listed or otherwise described in a Tax Certificate of the City as being financed or refinanced in whole or in part with the proceeds of Series A-4 Notes, Series B-4 Notes or Series
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C-4 Notes, which is acquired, constructed, reconstructed, improved, expanded or otherwise financed or refinanced with proceeds of the sale of such Notes and which may include the funding of Parity Notes and Credit Agreement Notes, including Credit Agreement Parity Notes and the refunding of Senior Lien Bonds, Junior Lien Obligation Bonds, First Lien PFC Bonds, Second Lien PFC Bonds and Special Facility Revenue Bonds by providing for the payment of the principal amount to be refunded prior to maturity, any redemption premium and the interest due thereon to the date fixed for redemption.
"Project'' means any undertaking, facility or item which is listed or otherwise described in a Tax Certificate of the City, as from time to time amended, as being financed in whole or in part with the proceeds of the Notes, which is acquired, constructed, reconstructed, improved, expanded or otherwise financed or refinanced with proceeds of the sale of the Notes and which may include the funding of Parity Notes and Credit Agreement Notes, including Credit Agreement Parity Notes and the refunding of Senior Lien Bonds, Junior Lien Obligation Bonds and Special Facility Revenue Bonds by providing for the payment ofthe principal amount to be refunded prior to maturity, any redemption premium and the interest due thereon to the date fixed for redemption.
"Rating Agency" means, as long as it is rating a Series, (i) Standard & Poor's, (ii) Fitch, or (iii) any other nationally recognized credit rating agency specified in a Supplemental Indenture.
"Rebate Fund" means any fund required to be maintained by the City pursuant to a Tax Certificate in connection with the issuance of the Notes or any Series of Notes for the purpose of complying with the Code, and providing for the collection and holding for and payment of amounts to the United States of America.
"Registrar" means, with respect to any Series, each person or entity, if any, designated by the City herein or in a Supplemental Indenture to keep a register of any Series and of the transfer and exchange of the Bonds comprising such Series, and its successors and assigns, and any other person or entity which may at any time be substituted for it pursuant hereto.
"Reimbursement Agreement" means (i) as of the date of the initial Issuance Request, each of the following agreements and any and all modifications, alterations, amendments and supplements thereto: (A) Reimbursement Agreement dated as of September I, 2016 between the City and Barclays Bank PLC, (B) Reimbursement Agreement dated as of September 1, 2016 between the City and The Bank of Tokyo-Mitsubishi, UFJ, Ltd., acting through its New York branch and (C) Reimbursement Agreement dated as of September 1, 2016 between the City and Bank of America, N.A., and (ii) any similar document entered into with respect to the delivery of a substitute Letter of Credit.
"Representation Letter" means the Blanket Issuer Letter of Representations from the City to DTC with respect to a Series.
"Responsible Officer" means when used with respect to the Trustee, any vice president, assistant vice president, senior associate, associate or other officer of the Trustee within the Trustee's corporate trust office in Chicago, Illinois (or any successor corporate trust
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office) customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred at the Trustee's corporate trust office in Chicago, Illinois because of such person's knowledge of and familiarity with the particular subject and having direct responsibility for the administration of this Indenture.
"Revenue Fund" means the fund so named and maintained under the Senior Lien
Indenture.
"Revenues" shall have the meaning ascribed to that term in the Senior Lien
Indenture.
"Second Lien PFC Bonds" means any bonds of the City authenticated and delivered as Subordinated PFC Obligations (as defined in the First Lien PFC Indenture). In connection with any Second Lien PFC Bonds with respect to which an interest rate swap is in effect or is proposed to be in effect, the term "Second Lien PFC Bonds" may include, collectively, both such Second Lien PFC Bonds and either such interest rate swap or the obligations of the City under such interest rate swap, as the context requires.
"Senior Lien Bonds" means any bonds of the City authenticated and delivered pursuant to Article II ofthe Senior Lien Indenture or replacement indenture. In connection with any Senior Lien Bonds with respect to which an interest rate swap is in effect or is proposed to be in effect, the term "Senior Lien Bonds" may include, collectively, both such Senior Lien Bonds and either such interest rate swap or the obligations of the City under such interest rate swap, as the context requires.
"Senior Lien Indenture" means the Master Indenture of Trust dated as of September 1, 2012 between the City and U.S. Bank National Association, as trustee, securing Chicago O'Hare International Airport General Airport Revenue Senior Lien Obligations, as supplemented and amended from time to time in accordance with the terms thereof.
"Senior Lien Trustee" means the trustee under the Senior Lien Indenture.
"Series" means a series of Commercial Paper Notes issued pursuant to this Indenture (e.g., Series A-1 Notes); each series of Commercial Paper Notes, when aggregated with all Outstanding Commercial Paper Notes of other series, may be in an aggregate amount up to the full Authorized Amount regardless of when or whether issued. On the Substitution Date, the Commercial Paper Notes being issued hereunder have been designated in 16 separate Series as set forth in Exhibit D hereto and are being issued in replacement of any existing Commercial Paper Notes hereunder.
"Series A Notes" means collectively all Series of Commercial Paper Notes designated "City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series A", regardless of any numerical designation following Series A, issued under and secured by this Indenture.
"Series B Notes" means collectively all Series of Commercial Paper Notes designated "City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes,
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2009 Program Series B", regardless of any numerical designation following Series B, issued under and secured by this Indenture.
"Series C Notes" means collectively all Series of Commercial Paper Notes designated "City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series C", regardless of any numerical designation following Series C, issued under and secured by this Indenture.
"Special Facility Revenue Bonds" means Special Facility Revenue Bonds as defined in the Senior Lien Indenture or as defined in any Junior Lien Obligation Bonds Indenture.
"Standard & Poor's" or "S & P" means Standard & Poor's, A Division of The McGraw-Hill Companies, Inc., a corporation organized and existing under the laws of the State of New York, and its successors and assigns, and, if such corporation shall no longer perform the functions of a securities rating agency, any other nationally recognized securities rating agency designated by the City.
"State" means the State of Illinois.
"Stated Amount" means, with respect to a Letter of Credit, the amount available to be drawn under such Letter of Credit for payment of principal of and interest on Commercial Paper Notes issued hereunder.
"Supplemental Indenture" means any document supplementing or amending this Indenture or providing for the issuance of a Series of Parity Notes and entered into as provided in Article XI of this Indenture.
"Tax Certificate" means a certificate, as amended from time to time, executed and delivered on behalf of the City by a Designated Representative on the date upon which a Series is initially issued and delivered, or any functionally equivalent certificate subsequently executed and delivered on behalf of the City by a Designated Representative with respect to the requirements of Section 148 (or any successor section) ofthe Code relating to a Series.
"Taxable Notes" means collectively, the Series A-3 Notes, the Series B-3 Notes and the Series C-3 Notes and any other Series of Notes with a numerical designation of "3".
"Taxable Project" means any undertaking, facility, cost, expense or item, other than any undertaking, facility, cost, expense or item which is listed or otherwise described in a certificate of the City, being financed or refinanced in whole or in part with the proceeds of the Series A-3 Notes, Series B-3 Notes, Series C-3 Notes, Series D-3 Notes or Series E-3 Notes, which is acquired, constructed, reconstructed, improved, expanded or otherwise financed or refinanced with proceeds of the sale of such Notes and which may include the funding of Parity Notes and Credit Agreement Notes, including Credit Agreement Parity Notes and the refunding of Senior Lien Bonds, Junior Lien Obligation Bonds, First Lien PFC Bonds, Second Lien PFC Bonds and Special Facility Revenue Bonds by providing for the payment of the principal amount to be refunded prior to maturity, any redemption premium and the interest due thereon to the date fixed for redemption.
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"Termination Date" means the sixteenth (16 ^ day prior to the Expiration Date.
"Trustee" shall mean the entity named as such in the heading of this Indenture until a successor replaces it and, thereafter, means such successor.
"United States Obligations" means direct and general obligations of the United States of America, or obligations that are unconditionally guaranteed as to principal and interest by the United States of America, including, with respect only to direct and general obligations and not to guaranteed obligations, evidences of ownership of proportionate interests in future interest and/or principal payments of such obligations, provided that investments in such proportionate interests must be limited to circumstances wherein (1) a bank or trust company acts as custodian and holds the underlying United States Obligations; (2) the owner of the investment is the real party in interest and has the right to proceed directly and individually against the obligor of the underlying United States Obligations; and (3) the underlying United States Obligations are held in a special account separate from the custodian's general assets and are not available to satisfy any claim of the custodian, any person claiming through the custodian or any person to whom the custodian may be obligated.
"Withdrawn Amounts" means Revenues and other amounts that may be withdrawn from the Junior Lien Obligation Debt Service Fund free from the lien of the Senior Lien Indenture pursuant to Section 405 of the Senior Lien Indenture.
Section 1.02. General Authorization. The appropriate officers, agents and employees of the City are each hereby authorized and directed, for and in the name and on behalf of the City, to take all actions and to make and execute any and all certificates, requisitions, agreements, notices, consents, warrants and other documents, which they, or any of them, deem necessary or appropriate in order to consummate the lawful issuance, sale and delivery of one or more Series of Commercial Paper Notes or Bank Notes in accordance with the provisions hereof.
Section 1.03. Interpretation. All references herein to "Articles," "Sections" and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Indenture, and the words "herein," "hereof," "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof.
ARTICLE II
The Commercial Paper Notes
Section 2.01. Authorized Amount of Commercial Paper Notes; Terms and Description of Commercial Paper Notes. No Commercial Paper Notes may be issued under the provisions of this Indenture except in accordance with this Article.
(a) The City hereby authorizes the issuance of its Notes to be designated as set forth on Exhibit D hereto. The Series A-1 Notes, Series B-l Notes, Series C-l Notes and any other Notes with a numerical designation of "1" shall be issued from time to time as provided herein to finance and refinance the cost of Private Activity (AMT) Projects; the Series A-2 Notes, the Series B-2 Notes, the Series C-2 Notes and any other Notes
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with a numerical designation of "2" shall be issued from time to time as provided herein to finance and refinance the cost of Non-Private Activity (Non-AMT) Projects; and the Series A-4 Notes, Series B-4 Notes, Series C-4 Notes and any other Notes with a numerical designation of "4" shall be issued from time to time as provided herein to finance and refinance the cost of Private Activity (Non-AMT) Projects. Proceeds of the Series A-3 Notes, Series B-3 Notes, Series C-3 Notes and any other Notes with a numerical designation of "3" may be used to finance any of the foregoing projects or any Taxable Project authorized under the CP Note Ordinance. Proceeds of Commercial Paper Notes issued to refinance other Commercial Paper Notes may be used to pay or to reimburse the Banks for Advances used to pay principal or interest due on such maturing Commercial Paper Notes; provided, however, that proceeds of a Series of Notes may only be used to pay or to reimburse the Banks for Advances used to pay principal or interest due on Notes of the same Series designation. Such authorization specifically includes the authorization to issue and reissue Commercial Paper Notes for such purposes. The aggregate principal amount of Commercial Paper Notes that may be Outstanding at any one time hereunder shall not exceed the Authorized Amount. The aggregate amount of principal and interest payable on the Outstanding Commercial Paper Notes shall not exceed the amount available to be drawn under the Letter of Credit securing such Outstanding Commercial Paper Notes.
The Commercial Paper Notes shall be dated the date of their respective authentication and issuance; shall be issued in bearer or registered form, as shall be determined by the Designated Representative, within each Series shall be issued in denominations of $100,000 and integral multiples of $1,000 in excess thereof. Commercial Paper Notes shall bear interest from their respective dated dates, payable on their respective maturity dates.
The Notes other than the Bank Notes and the Taxable Notes (i) shall bear interest payable at maturity at an annual rate (calculated on the basis of a year consisting of 365/366 days and actual number of days elapsed), which shall not in any event exceed the Maximum Rate, (ii) shall mature on a Business Day (A) not more than 270 days after their respective dated dates, but in no event later than the Termination Date under the Letter of Credit securing such Notes, (B) such that the term of such Notes shall not exceed the number of days of the interest coverage period under the Letter of Credit securing such Notes, and (iii) shall be sold by a Dealer pursuant to a Dealer Agreement at a price of not less than 100% ofthe principal amount thereof. The Taxable Notes (i) shall bear interest payable at maturity at an annual rate (calculated on the basis of a year consisting of 365/366 days and actual number of days elapsed), which shall not in any event exceed the Maximum Rate, (ii) shall mature on a Business Day not more than 270 days after their dated dates, but in no event later than the Termination Date under the Letter of Credit securing such Notes, and (iii) shall be sold by the Dealer pursuant to a Dealer Agreement at a price of not less than 100% of the principal amount thereof. The stated interest rate or yield, maturity date and other terms of the Commercial Paper Notes, as long as not inconsistent with the terms of this Indenture, shall be as set forth in the Issuance Request required by Section 2.06 directing the issuance of Commercial Paper Notes.
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The Commercial Paper Notes shall not be subject to redemption prior to
Besides the numerical and alphabetic designations to reflect the tax status and letter of credit securing a Series of Notes, the Notes of each Series shall be numbered in such manner as the Issuing and Paying Agent may deem appropriate to reflect the date of issuance and may bear such additional designations as determined by the City.
Commercial Paper Notes which are issued to finance or refinance Private Activity (AMT) Projects shall be contain the numerical designation of "1" and contain a letter designation corresponding to the Letter of Credit issued to secure such Notes, as described in Exhibit D. Commercial Paper Notes which are issued to finance or refinance Non-Private Activity (Non-AMT) Projects shall contain the numerical designation of "2" and contain a letter designation corresponding to the Letter of Credit issued to secure such Notes, as described in Exhibit D. Commercial Paper Notes which are issued to finance or refinance Taxable Projects shall contain the numerical designation of "3" and contain a letter designation corresponding to the Letter of Credit issued to secure such Notes, as described in Exhibit D. Commercial Paper Notes which are issued to finance or refinance Private Activity (Non-AMT) Projects shall contain the numerical designation of "4" and contain a letter designation corresponding to the Letter of Credit issued to secure such Notes, as described in Exhibit D.
Section 2.02. Payment. The City covenants to duly and punctually pay or cause to be paid from Available Pledged Revenues, the principal of and interest on each and every Commercial Paper Note when due. To the extent Advances made by the Banks for the purpose of paying principal of and interest on maturing Commercial Paper Notes, together with Note Proceeds from Commercial Paper Notes issued on such date, are insufficient to pay principal of and interest on maturing Commercial Paper Notes, the City will make all payments of principal and interest directly to the Issuing and Paying Agent in immediately available funds on or prior to 1:15 p.m., Chicago, Illinois time, on the date payment is due on any Commercial Paper Note. To the extent principal of and/or interest on Commercial Paper Notes is paid with an Advance, the Issuing and Paying Agent is authorized and directed to use amounts paid by the City to reimburse the Banks. The principal of and the interest on the Commercial Paper Notes shall be paid in Federal or other immediately available funds in such coin or currency of the United States of America as, at the respective times of payment, is legal tender for the payment of public and private debts.
The principal of and the interest on the Commercial Paper Notes shall be payable at the Principal Office of the Issuing and Paying Agent on or before the close of business on any Business Day upon which such Commercial Paper Notes have become due and payable, provided that such Commercial Paper Notes are presented and surrendered on a timely basis. Upon presentation of such a Commercial Paper Note to the Issuing and Paying Agent no later than 2:00 p.m. (Chicago, Illinois time) on a Business Day, payment for such Commercial Paper Note shall be made by the Issuing and Paying Agent in immediately available funds on such Business Day. If a Commercial Paper Note is presented for payment after 2:00 p.m. (Chicago, Illinois time) on a Business Day, payment therefor may be made by the Issuing and Paying Agent on the next succeeding Business Day without the accrual of additional interest thereon.
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Notwithstanding the provisions of.the previous paragraph, in the event the Notes are issued as a master note or master notes in book-entry form, they shall be payable at maturity without physical presentation or surrender in accordance with the procedures of the Note Depository.
Section 2.03. Execution and Authentication of Commercial Paper Notes; Limited Obligation. The Notes, in certificated form, will be signed for the City as provided in the CP Note Ordinance. In case any officer whose signature or whose facsimile signature shall appear on any Notes shall cease to be such officer before the authentication of such Notes, such signature or the facsimile signature thereof shall, nevertheless, be valid and sufficient for all purposes the same as if he or she had remained in office until authentication. Also, if a person signing a Note is the proper officer on the actual date of execution, the Note will be valid even if that person is not the proper officer on the nominal date of action and even though, at the date of this Indenture, such person was not such officer.
The Issuing and Paying Agent is, by this Indenture, designated by the City as the Authenticating Agent and Registrar for the Commercial Paper Notes in accordance with the terms of Section 7.01. Notwithstanding anything herein to the contrary, the Issuing and Paying Agent shall not authenticate Commercial Paper Notes which mature later than the Termination Date, and the Issuing and Paying Agent shall not authenticate Commercial Paper Notes if an Event of Default then exists of which it has actual knowledge or the Issuing and Paying Agent has received a No-Issuance Notice or a Final Drawing Notice from a Bank.
If any Commercial Paper Notes are to be issued in bearer form, the City shall from time to time furnish the Issuing and Paying Agent with an adequate supply of Commercial Paper Notes, each of which shall have attached such number of carbon copies as the Issuing and Paying Agent shall reasonably specify. When any Commercial Paper Notes are delivered to the Issuing and Paying Agent by the City, the Issuing and Paying Agent shall execute and deliver to the City a receipt therefor and shall hold such Commercial Paper Notes for the account of the City in safekeeping in accordance with its customary practice.
The Commercial Paper Notes and the Bank Notes shall be limited obligations of the City payable solely from (1) Available Pledged Revenues, (2) securities and moneys held by the Trustee under the provisions of this Indenture and (3) subject to the liens created by the Senior Lien Indenture and any Junior Lien Obligation Bonds Indenture, the Post Defeasance Revenues. The Commercial Paper Notes and the Bank Notes, and the interest thereon, do not constitute an indebtedness or a loan of credit of the City within the meaning of any constitutional or statutory limitation, and neither the faith and credit nor the taxing power of the City, the State of Illinois or any political subdivision thereof is pledged to the payment of the principal of or interest on the Commercial Paper Notes or the Bank Notes.
Section 2.04. Forms of Commercial Paper Notes and Authentication Certificate. The definitive Series A Notes, Series B Notes and Series C Notes and the Certificate of Authentication endorsed thereon shall be substantially in the form set forth in Exhibit A attached hereto and made a part hereof, with such appropriate variations, omissions and insertions as shall be required or appropriate in order to accomplish the purposes of the transactions authorized by this Indenture.
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Section 2.05. Book-Entry System. Unless an Authorized City Representative or his designee determines that a Series of Commercial Paper Notes shall be issued in bearer form or registered form other than in book-entry form, the Commercial Paper Notes shall initially be issued in book-entry form as further provided in this Section.
The Notes issued pursuant to this Indenture shall initially be issued in the form of a separate single fully-registered Note for each Series of the Commercial Paper Notes. Except as provided in subsection (c) of this Section, all of the Commercial Paper Notes shall be registered in the name ofthe Nominee. Notwithstanding any provision to the contrary in Section 2.06, as long as the Notes remain in the form of one or more master notes in book-entry form, the issuance of Notes pursuant to an Issuance Request against payment therefor shall not require the physical delivery of note certificates.
The Trustee, the Issuing and Paying Agent and the City may treat the registered owner of each Note as the sole and exclusive owner thereof for the purposes of payment of the principal of or interest on the Series of Notes to which such Note belongs, giving any notice permitted or required to be given to Noteholders hereunder, registering the transfer of Notes, obtaining any consent or other action to be taken by Noteholders, and for all other purposes whatsoever, and neither the Trustee, the Issuing and Paying Agent nor the City shall be affected by any notice to the contrary.
Neither the Trustee, the Issuing and Paying Agent nor the City shall have any responsibility or obligation to any participant in the Note Depository (a "Participant"), any person claiming a beneficial ownership interest in the Commercial Paper Notes under or through the Note Depository or any Participant, or any other person who is not shown on the registration books as being a Noteholder, with respect to (i) the accuracy of any records maintained by the Note Depository or any Participant; (ii) the payment by the Note Depository or any Participant of any amount in respect of the principal of or interest on the Commercial Paper Notes; (iii) the delivery of any notice which is permitted or required to be given to Noteholders hereunder; (iv) any consent given or other action taken by the Note Depository as Noteholder; or (v) any other purpose.
The Issuing and Paying Agent shall pay all principal of and interest on the Commercial Paper Notes only to or upon the order of the Note Depository, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to the payment of the principal of and interest on the Commercial Paper Notes to the extent of the sum or sums so paid. Upon delivery by the Note Depository to the Issuing and Paying Agent of written notice to the effect that the Note Depository has determined to substitute a new Nominee in place ofthe current Nominee, and subject to the provisions herein with respect to record dates, the word Nominee in this Article shall refer to such new Nominee.
In order to qualify each Series of Commercial Paper Notes for the Note Depository's book-entry system, an Authorized City Representative is hereby authorized to execute, seal, countersign and deliver on behalf of the City to the Note Depository for each Series of Commercial Paper Notes, a Representation Letter from an Authorized City Representative representing such matters as shall be necessary to so qualify the
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Commercial Paper Notes. The execution and delivery of the Representation Letter shall not in any way limit the provisions of this Section or in any other way impose upon the City any obligation whatsoever with respect to persons having beneficial ownership interests in the Commercial Paper Notes other than the Noteholders.
(c) (1) The Note Depository may determine to discontinue providing its services with respect to a Series of Commercial Paper Notes at any time by giving reasonable written notice to an Authorized City Representative, the Trustee and the Issuing and Paying Agent, and by discharging its responsibilities with respect thereto under applicable law.
An Authorized City Representative, exercising the sole discretion of the City and without the consent of any other person, may terminate, upon provision of notice to the Note Depository, the Trustee and the Issuing and Paying Agent, the services of the Note Depository with respect to a Series of Commercial Paper Notes if the Authorized City Representative determines, on behalf of the City, that the continuation of the system of book-entry only transfers through the Note Depository (or a successor securities depository) is not in the best interests of the owners of a Series of Commercial Paper Notes or is burdensome to the City, and shall terminate the services of the Note Depository with respect to a Series of Commercial Paper Notes upon receipt by the City, the Trustee and the Issuing and Paying Agent of written notice from the Note Depository to the effect that the Note Depository has received written notice from Direct Participants (as defined in the Representation Letter) having interests, as shown in the records of the Note Depository, in an aggregate principal amount of not less than fifty percent (50%) of the aggregate principal amount of the then outstanding Commercial Paper Notes to the effect that: (i) the Note Depository is unable to discharge its responsibilities with respect to such Series of Commercial Paper Notes, or (ii) a continuation of the requirement that all of the outstanding Notes be registered in the registration books kept by the Issuing and Paying Agent in the name of the Nominee of the Note Depository, is not in the best interest of the Noteholders of such Series of Commercial Paper Notes.
Upon the termination of the services of the Note Depository with respect to a Series of Commercial Paper Notes pursuant to subsection (c)(1) or (c)(2) hereof, after which no substitute Note Depository willing to undertake the functions of the Note Depository hereunder can be found or which, in the opinion of the City, is willing and able to undertake such functions upon reasonable and customary terms, a Series of Commercial Paper Notes shall no longer be restricted to being registered in the registration books kept by the Note Registrar in the name of the Nominee of the Note Depository. In such event, the City shall issue and the Issuing and Paying Agent shall transfer and exchange Note certificates as requested by the Note Depository or Direct Participants of like principal amount, Series and maturity, in denominations of $100,000 and integral multiples of $1,000 in excess thereof, to the identifiable Noteholder in replacement of such Noteholder's beneficial interests in a Series of Commercial Paper Notes.
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Notwithstanding any provision hereof to the contrary, as long as the Commercial Paper Notes of any Series are registered in the name of the Nominee, all payments with respect to principal of and interest on the Commercial Paper Notes of such Series and all notices with respect to the Commercial Paper Notes of such Series shall be made and given, respectively, as provided in the Representation Letter for the related Series of Notes or as otherwise instructed by the Note Depository.
The initial Note Depository with respect to each Series of Commercial Paper Notes shall be DTC. The initial Nominee with respect to each Series of Commercial Paper Notes shall be CEDE & CO., as nominee of DTC.
Section 2.06. Conditions Precedent to Delivery of Commercial Paper
Notes.
Prior to the issuance of the first Commercial Paper Notes hereunder, Commercial Paper Notes of each initial Series shall be executed on behalf of the City and delivered to the Issuing and Paying Agent, who shall hold such Commercial Paper Notes unauthenticated in safekeeping for the City. Subject to the provisions of Sections 2.01 and 2.05, and paragraphs (f) and (g) of this Section, at any time and from time to time prior to the Termination Date, Commercial Paper Notes shall be manually authenticated and delivered by the Issuing and Paying Agent for the consideration and in the manner hereinafter provided, but only upon receipt by the Issuing and Paying Agent of an Issuance Request, no later than 11:30 a.m. (Chicago, Illinois time) on the Business Day on which Commercial Paper Notes are to be delivered, directing the Issuing and Paying Agent to authenticate the Commercial Paper Notes referred to therein and to deliver the same to or upon the order of the Dealer or Dealers listed in the Issuance Request in the applicable principal amount allocated to each such Dealer in the Issuance Request. Each Issuance Request shall include for each Dealer: (i) the principal amount and date of each Commercial Paper Note then to be delivered; (ii) the rate and amount of interest thereon; (iii) the maturity date thereof; and (iv) the Series designation thereof. No later than 1:30 p.m. (Chicago, Illinois time) on each Business Day on which the City proposes to issue Commercial Paper Notes, each Dealer shall report to the City each transaction made with or arranged by it or shall notify the City and the Issuing and Paying Agent of the difference, if any, between the amount of maturing Notes of a Series and the amount of Notes of a Series which each Dealer has arranged to sell or has agreed to purchase.
Upon receipt of such Issuance Request (which may be transmitted by mail, telecopy or other electronic communications method, or by telephone, promptly confirmed in writing by 1:00 p.m. Chicago, Illinois time), the Issuing and Paying Agent shall, by 2:00 p.m. (Chicago, Illinois time) on such day, complete each Series A Note, Series B Note, Series C Note or other Series then to be delivered as to amount, date, maturity date, interest rate and interest amount specified in such Issuance Request, and deliver each such Commercial Paper Note to or upon the order of the applicable Dealer upon receipt of payment therefor; provided, however, that no such Commercial Paper Notes shall be delivered by the Issuing and Paying Agent if such delivery would cause (a) the sum of the aggregate principal amount of Commercial Paper Notes Outstanding to exceed the Authorized Amount, or (b) the aggregate principal amount of Commercial Paper Notes described in each Issuance Request (together with the interest thereon), plus the aggregate principal amount of all Commercial Paper Notes then Outstanding (together
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with the interest thereon), less the aggregate principal amount of any of the then Outstanding Commercial Paper Notes to be retired concurrently with the issuance of the Commercial Paper Notes described in the Issuance Request (including interest thereon), to exceed the amount available to be drawn under the Letter of Credit. Notwithstanding any provision herein to the contrary, no such Commercial Paper Notes of any Series shall be delivered by the Issuing and Paying Agent if (A) it shall have received notice from an Authorized City Representative directing the Issuing and Paying Agent to cease authenticating and delivering Commercial Paper Notes until such time as such direction is withdrawn by similar notice, (B) it shall have actual knowledge that an Event of Default shall have occurred and be continuing, (C) it shall have received notice from Bond Counsel that its opinion regarding the exclusion of interest on the Notes of such issue or Series (issued as tax-exempt Notes) from gross income for Federal income tax purposes of the holders thereof is being withdrawn, (D) the maturity date of such Commercial Paper Notes would extend beyond the related Termination Date of the Letter of Credit securing such Commercial Paper Notes, or (E) the Trustee and the Issuing and Paying Agent shall have received a No-Issuance Notice or a Final Drawing Notice from the Bank providing a Letter of Credit securing such Commercial Paper Notes. If an Issuance Request is received after 11:30 a.m. (Chicago, Illinois time) on a given day, the Issuing and Paying Agent shall not be obligated to deliver the requested Commercial Paper Notes until the next succeeding Business Day.
The City shall, upon a change in the identity of any Designated Representative, provide a Certificate for each new Designated Representative to the Issuing and Paying Agent.
A copy of each Commercial Paper Note authenticated in bearer form by the Issuing and Paying Agent shall be promptly transmitted by facsimile and thereafter mailed by first class United States mail, postage prepaid, to the City and the Trustee by the Issuing and Paying Agent. The Issuing and Paying Agent shall furnish the City with such additional information with respect to the carrying out of its duties hereunder as the City from time to time shall reasonably request.
In addition to the Issuance Request described above in this Section, and as a further condition to the issuance of any Commercial Paper Notes, the Designated Representative shall certify to or instruct, for and on behalf of the City, the Issuing and Paying Agent that, as of the date of delivery of such Commercial Paper Notes, (i) a Letter of Credit is in full force and effect for the Series of Commercial Paper Notes being issued; (ii) after the issuance of such Commercial Paper Notes and the application of the proceeds thereof, the sum of the aggregate principal amount of Commercial Paper Notes Outstanding will not exceed the Authorized Amount; (iii) the sum of the aggregate principal amount of Commercial Paper Notes then Outstanding of such Series does not exceed the amount available to be drawn under the Letter of Credit securing such Series of Notes; (iv) unless interest on the Commercial Paper Notes to be issued is to be taxable, to the City's knowledge there has been no change in the facts, estimates, circumstances and representations of the City set forth or made (as the case may be) in the Tax Certificate (applicable to such Commercial Paper Notes); (v) the terms of the Commercial Paper Notes do not exceed 270 days and do not exceed the interest coverage period of the applicable Letter of Credit and the maturity dates of such Commercial Paper Notes set forth in the Issuance Request do not extend beyond the related Termination Date; (vi) the City
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has not been notified by Bond Counsel that its opinion with respect to the validity of the Commercial Paper Notes and, unless interest on the Notes is to be taxable, the tax treatment of the interest thereon has been revised or withdrawn or, if any such revision or withdrawal has occurred, the revised opinion or a substitute opinion acceptable to the Dealer has been delivered; (vii) to the actual knowledge of the City, no Event of Default has occurred and is then continuing; (viii) the Note Proceeds shall be deposited into the Commercial Paper Bank Payment Account or into the Construction Fund pursuant to Section 4.02 in the amounts specified by the Designated Representative; and (ix) all of the conditions precedent to the issuance of such Commercial Paper Notes set forth in this Section ofthis Indenture have been satisfied.
The delivery of any Issuance Request to the Issuing and Paying Agent by a Designated Representative in the manner provided in this Section shall constitute the certification and representation of the City as of the date of such Issuance Request as to the matters set forth in the immediately preceding paragraph.
Any Issuance Request made by telephone pursuant to this Section may be recorded by the Issuing and Paying Agent and shall be confirmed promptly in writing by a Designated Representative; provided, however, that any conflict between any recorded oral Issuance Request and the written confirmation thereof, shall not affect the validity of any recorded oral Issuance Request received by the Issuing and Paying Agent as provided herein. If the Issuing and Paying Agent does not record an oral Issuance Request, and a conflict exists between such oral Issuance Request and the written confirmation thereof, the terms of the written confirmation shall control.
Prior to the initial delivery of Commercial Paper Notes of a Series under this Indenture and as a condition to such initial issuance, the Trustee and the City shall be notified by the Issuing and Paying Agent that the Issuing and Paying Agent has received:
a fully executed counterpart ofthe Reimbursement Agreement relating to such Series;
the executed Letter of Credit relating to such Series;
the opinions of the United States counsel and foreign counsel (if applicable) to each Bank providing a Letter of Credit for a Series of Commercial Paper Notes, addressed to the City, the Issuing and Paying Agent and the Trustee, to the effect that the Letter of Credit relating to such Series is a valid and legally binding obligation of such Bank, enforceable in accordance with its terms; and
a fully executed counterpart of each Dealer Agreement.
Section 2.07. Owners of Commercial Paper Notes. The City and the Issuing and Paying Agent may deem and treat the bearer of Notes in bearer form or the registered owner of Notes in registered form as the absolute owner thereof (whether or not such Commercial Paper Note shall be overdue and notwithstanding any notation of ownership or other writing thereon made by anyone other than the Issuing and Paying Agent) for the purpose of receiving payment thereof or on account thereof and for all other purposes, and neither the City nor the Issuing and Paying Agent shall be affected by any notice to the contrary.
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Section 2.08. Mutilated, Lost, Stolen or Destroyed Notes. In the event any Commercial Paper Note is mutilated or defaced but identifiable by number and description, the City shall execute and the Authenticating Agent shall authenticate and deliver a new Note of like Series, date, maturity and denomination as such Note, upon surrender thereof to the Issuing and Paying Agent; provided that there shall first be furnished to the Issuing and Paying Agent clear and unequivocal proof satisfactory to the Issuing and Paying Agent that the Note is mutilated or defaced to such an extent as to impair its value to the Noteholder. The Noteholder shall accompany the above with a deposit of money required by the Issuing and Paying Agent for the cost of preparing the substitute Note and all other expenses connected with the issuance of such substitute. The Issuing and Paying Agent shall then cause proper record to be made of the cancellation of the original, and thereafter the substitute shall have the validity ofthe original.
In the event any Note is lost, stolen or destroyed, the City may execute and the Authenticating Agent may authenticate and deliver a new Note of like Series, date, maturity and denomination as that Note lost, stolen or destroyed, provided that there shall first be furnished to the Issuing and Paying Agent evidence of such loss, theft or destruction satisfactory to the Issuing and Paying Agent, together with indemnity satisfactory to it and the City.
Except as limited by any Supplemental Indenture, the Issuing and Paying Agent may charge the holder of any such Note all governmental charges and transfer taxes, if any, and its reasonable fees and expenses in this connection. All substitute Notes issued and authenticated pursuant to this Section shall be issued as a substitute and numbered, as determined by the Issuing and Paying Agent. In the event any such Note has matured or been called for redemption, instead of issuing a substitute Note, the Issuing and Paying Agent may pay the same at its maturity or redemption without surrender thereof upon receipt of indemnity satisfactory to it and the City.
Section 2.09. Transfer or Exchange of Notes. Upon surrender for transfer of any Note at the designated corporate trust office of the Registrar, the Registrar shall deliver in the name ofthe transferee or transferees a new fully authenticated and registered Note or Notes of authorized denominations of the same Series, and maturity for the same aggregate principal amount.
Noteholders may present Notes at the designated corporate trust office of the Registrar for exchange for Notes of different authorized denominations and, upon such presentation, the Registrar shall deliver to the Noteholder a new fully authenticated and registered Note or Notes of the same Series and maturity for the same aggregate principal amount.
All Notes presented for transfer or exchange shall be accompanied by a written instrument or instruments of transfer or authorization for exchange, in form and with guaranty of signature satisfactory to the Registrar, duly executed by the Noteholder or by his duly authorized attorney.
Except as limited by any Supplemental Indenture, the Registrar also may require payment from the Noteholder of a sum sufficient to cover any tax, or other governmental fee or
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charge that may be imposed in relation thereto. Such taxes, fees and charges shall be paid before any such new Note shall be delivered.
Supplemental Indentures may designate certain limited periods during which Notes will not be exchanged or transferred.
Notes delivered upon any exchange or transfer as provided herein, or as provided in Section 2.08, shall be valid limited obligations of the City, evidencing the same debt as the Note or Notes surrendered, shall be secured by this Indenture and shall be entitled to all of the security and benefits hereof to the same extent as the Note or Notes surrendered.
Section 2.10. Destruction of Notes. Whenever any Notes shall be delivered to the Issuing and Paying Agent for cancellation pursuant to this Indenture, upon payment of the principal amount and interest represented thereby or for replacement pursuant to Section 2.08 or exchange or transfer pursuant to Section 2.09, such Note shall be cancelled and destroyed by the Issuing and Paying Agent or the Registrar and counterparts of a certificate of destruction evidencing such destruction shall be furnished by the Issuing and Paying Agent to the City.
Section 2.11. Temporary Notes. Pending preparation of definitive Notes of any Series, the City may execute and the Issuing and Paying Agent shall authenticate and deliver, in lieu of definitive Notes and subject to the same limitations and conditions, interim receipts, certificates or temporary Notes which shall be exchanged for the Notes.
If temporary Notes shall be issued, the City shall cause the definitive Notes to be prepared and to be executed, authenticated and delivered to the Issuing and Paying Agent, and the Issuing and Paying Agent, upon presentation to it of any temporary Note, shall cancel the same and deliver in exchange therefor at the place designated by the holder, without charge to the holder thereof, definitive Notes of an equal aggregate principal amount of the same Series issue date, maturity and bearing interest the same as the temporary Notes surrendered. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefit and security of this Indenture as the definitive Notes to be issued and authenticated hereunder.
Section 2.12. Nonpresentment of Notes. In the event any Note shall not be presented for payment when the principal thereof becomes due, if moneys sufficient to pay such Note shall have been deposited with the Trustee for the benefit of the owner thereof, all liability of the City to the owner thereof for the payment of such Note shall forthwith cease, terminate and be completely discharged, and thereupon it shall be the duty of the Trustee to hold such moneys, without liability to the City, any owner of any Note or any other person for interest thereon, for the benefit of the owner of such Note, who shall thereafter be restricted exclusively to such moneys, for any claim of whatever nature on his or her part under this Indenture or on, or with respect to, said Note.
Any moneys so deposited with and held by the Trustee and not so applied to the payment of Notes within two (2) years after the date on which the same shall have become due shall be paid by the Trustee to the City, free from the trusts created by this Indenture. Thereafter, the owners of the Notes shall be entitled to look only to the City for payment, and then only to the extent of the amount so repaid by the Trustee. The City shall apply the sums paid to it
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pursuant to this Section in accordance with applicable law, but shall not be liable for any interest on such sums paid to it pursuant to this Section and shall not be regarded as a trustee of such money.
ARTICLE III
Pledge of Available Pledged Revenues and Post Defeasance Revenues
Section 3.01. Pledges Securing Notes. The Commercial Paper Notes and the Bank Notes shall be special, limited obligations of the City, shall be payable as to both principal and interest from, and shall be secured by a pledge of, lien on and security interest in all Available Pledged Revenues and all amounts in the funds and accounts created or maintained pursuant to this Indenture, the Issuing and Paying Agent Agreement or any Tax Certificate (except the Rebate Fund), including earnings on such amounts, subject only to the provisions of this Indenture and the Issuing and Paying Agent Agreement permitting the application thereof for the purposes and on the terms and conditions set forth herein and therein, which pledge, lien and security interest shall be junior and subordinate to the pledge and lien created by the Senior Lien Indenture in favor of the Senior Lien Bonds, and to the pledge and lien created in favor of any Junior Lien Obligation Bonds by any Junior Lien Obligation Bonds Indenture.
The Commercial Paper Notes and the Bank Notes are also secured by a pledge of, lien on and security interest in the Post Defeasance Revenues, which pledge, lien and security interest shall be junior and subordinate to any pledge and lien created thereon in favor of any Junior Lien Obligation Bonds by any Junior Lien Obligation Bonds Indenture.
The Commercial Paper Account of the Junior Lien Obligation Debt Service Fund shall constitute a trust fund for the security and payment of the principal of and interest on the Commercial Paper Notes and the Bank Obligations, including the Bank Notes. The Available Pledged Revenues are hereby pledged to the payment of the Commercial Paper Notes and the Bank Obligations, including the Bank Notes, without priority or distinction of one over the other.
The pledges of Available Pledged Revenues and Post Defeasance Revenues herein made shall be irrevocable until all of the Commercial Paper Notes and the Bank Notes secured by Available Pledged Revenues and Post Defeasance Revenues have been paid and retired. The granting of these pledges by the City does not limit in any manner (a) the right of the City to issue from time to time Commercial Paper Parity Notes and Credit Agreement Parity Notes and (b) the rights of the City to issue or incur any other obligations subordinated in right of payment to the Commercial Paper Notes and the Bank Notes, or from granting a security interest in the Available Pledged Revenues and Post Defeasance Revenues to any other Person in connection with such additional obligations.
Section 3.02. Deposit of Revenues; Notification of Pledge of Available Pledged Revenues and Post Defeasance Revenues. The City covenants and agrees that Revenues (as defined in the Senior Lien Indenture) shall be deposited by the City pursuant to the Senior Lien Indenture in the Commercial Paper Account of the Junior Lien Obligation Debt Service Fund and will be accounted for pursuant to the Senior Lien Indenture. The City will
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notify the Trustee for the Senior Lien Bonds of the pledge of, lien on, and security interest in Available Pledged Revenues and Post Defeasance Revenues granted by this Indenture, and the City shall ensure that all such Available Pledged Revenues and Post Defeasance Revenues shall be accounted for separate and apart from all other moneys, funds, accounts or other resources of the City.
ARTICLE IV
Application of Commercial Paper Note Proceeds
Section 4.01. Creation of Funds and Accounts, (a) The Construction Fund is hereby created as a separate fund and shall be held, maintained and accounted for by the Trustee, and the moneys in the Construction Fund shall be used for the purposes for which the Notes of any Series are authorized to be issued, including, but not limited to, the payment of principal of and interest on the Notes, Costs of Issuance and administrative costs of the commercial paper program. If so specified in a Tax Certificate, the City shall establish one or more accounts and subaccounts within the Construction Fund. The Construction Fund is designated as the "Commercial Paper Construction Fund" and herein called the "Construction Fund."
(b) The Debt Service Fund is hereby created as a separate trust fund and shall be held by the Issuing and Paying Agent. The City may direct the Issuing and Paying Agent to establish and maintain a separate account or accounts in the Debt Service Fund with respect to any or all of the Notes of one or more Series. Moneys in the Debt Service Fund and the accounts therein shall be held in trust separate and apart from all other moneys, funds and accounts held by the Issuing and Paying Agent, and shall be applied to pay the principal of and interest on Outstanding Notes in the amounts, at the times and in the manner set forth herein and in any Supplemental Indenture. Moneys in the accounts in the Debt Service Fund may also be applied to pay or reimburse the Banks for unreimbursed Advances to the extent provided herein or in any Supplemental Indenture. The following accounts are hereby established within the Debt Service Fund, and the Issuing and Paying Agent shall hold such accounts in trust in accordance herewith and with the Issuing and Paying Agent Agreement:
a separate "Commercial Paper Debt Service Account," for each Series with a Series designation corresponding to a Series of the Notes issued hereunder (which results in 12 separate accounts on the date of the initial Issuance Request) and each individually herein called a "Debt Service Account;"
a separate "Commercial Paper Bank Payment Account," for each Bank issuing a Letter of Credit and herein each called a "Bank Payment Account", which shall initially be designated as:
(i) the "Series A Bank Payment Account,"
(ii) the "Series B Bank Payment Account," and
(iii) the "Series C Bank Payment Account";
(3) "Bank Note Debt Service Account," and herein called the "Bank Note Account."
The City shall establish subaccounts within each Bank Payment Account to reflect payment to each Bank of separate Series secured by the Letter of Credit issued by such Bank. The City may establish subaccounts within the Bank Note Account to reflect payments to each Bank providing a Letter of Credit.
Section 4.02. Deposit of Proceeds of Commercial Paper Notes. Immediately upon receipt thereof, the Issuing and Paying Agent shall, if instructed by an Authorized City Representative, first deposit the proceeds of the sale of Commercial Paper Notes into the applicable Commercial Paper Bank Payment Account in an amount equal to the unreimbursed Advances made by the Banks to pay principal of or interest on Commercial Paper Notes of such Series. Proceeds so deposited shall be held separate and apart from all other funds and accounts and shall not commingled with any other moneys. The remaining proceeds shall be transferred to the Trustee for deposit in the Construction Fund.
Section 4.03. Application of Moneys in the Construction Fund, (a) Moneys in the Construction Fund attributable to Notes with a numerical designation of "1" shall be applied to the payment of the costs ofthe Private Activity (AMT) Projects, Costs of Issuance of such Series and administrative costs of the commercial paper program; moneys in the Construction Fund attributable to the Notes with a numerical designation of "2" shall be applied to the payment of the costs ofthe Non-Private Activity (Non-AMT) Projects, Costs of Issuance of such Series and administrative costs of the commercial paper program; and moneys in the Construction Fund attributable to the Notes with a numerical designation of "4" shall be applied to the payment of the costs of the Private Activity (AMT) Projects, Costs of Issuance of such Series and administrative costs of the commercial paper program. Moneys in the Construction Fund attributable to the Notes with a numerical designation of "3" may be used for any of the foregoing purposes and for the payment of the Taxable Projects. An Authorized City Representative may from time to time amend the list of Projects in a Tax Certificate; provided, however, that the Authorized City Representative shall not amend the list of Projects in such a way as to change the tax status of the related Series of Commercial Paper Notes. An Authorized City Representative is hereby authorized to execute one or more supplemental Tax Certificates in connection with any Series of Notes.
(b) The Trustee shall make payments or disbursements from the Construction Fund upon receipt from the City of a written requisition, in substantially the form attached as Exhibit C to this Indenture, executed by an Authorized City Representative, which requisition shall state, with respect to each amount requested thereby, (i) the account, if any, within the Construction Fund from which such amount is to be paid, (ii) the number of the requisition from such account, (iii) the amount to be paid, the name of the Person to which the payment is to be made and the manner in which the payment is to made, (iv) that the amount to be paid represents a cost of a qualifying Project as described in a Tax Certificate of the City, or is related to a Taxable Project, as applicable, and (v) unless related to a Taxable Project, that the amounts requisitioned will be expended only in accordance with and subject to the limitations set forth in the applicable Tax Certificate. The Trustee shall rely fully on any such requisition delivered
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pursuant to this Section and shall not be required to make any investigation in connection therewith.
Moneys held in the Construction Fund shall be invested and reinvested by the Trustee in Permitted Investments as directed in writing by an Authorized City Representative. The Trustee may conclusively rely upon the City's written instructions as to both the suitability and legality of the directed investments. Ratings of Permitted Investments shall be determined at the time of purchase of such Permitted Investments and without regard to ratings subcategories. The Trustee may make any and all such investments through its own investment department or that of its affiliates or subsidiaries, and may charge its ordinary and customary fees for such trades, including account maintenance fees. In the absence of investment instructions from the City, the Trustee shall not be responsible or liable for keeping the moneys held by it hereunder fully invested but shall provide prompt notice to the City of any funds that are not invested. Although the City recognizes that it may obtain a broker confirmation or written statement containing comparable information at no additional cost, the City hereby agrees that confirmations of Permitted Investments are not required to be issued by the Trustee for each month in which a monthly statement is rendered. No statement need be rendered for any fund or account if no activity occurred in such fund or account during such month.
Any amounts remaining in the Construction Account for a Series of Notes at the completion ofthe Project for such Series shall be transferred to the related Bank Payment Account and used to repay Advances to the extent that a portion of such Advances is allocable to the interest on the Notes of such Series.
Section 4.04. Deposits Into and Uses of the Commercial Paper Debt Service Account and the Bank Payment Account, (a) At or before 3:15 p.m., Chicago, Illinois time, on the maturity date of each Note, the City shall deposit or cause to be deposited, from Available Pledged Revenues or other moneys of the City legally available therefor, including, but not limited to, Note Proceeds, an amount sufficient, together with other available moneys, if any, with the Issuing and Paying Agent for deposit into the related Series Bank Payment Account, to reimburse each applicable Bank in an amount equal to the principal of and interest due on all Notes maturing on such maturity date; provided that the City shall be required to deposit into a segregated account (hereinafter designated the "Shortfall Account") such amounts from such source, at such time, to the extent Advances are not made under the Letter of Credit to pay the principal of and interest on the Notes maturing on such date. The "Shortfall Account" is hereby created as a separate trust fund and shall be held by the Trustee separate and apart from all other moneys, funds and accounts held by the Issuing and Paying Agent. Amounts deposited in the Shortfall Account, if any, shall be applied to pay any deficiency in Advances to pay the full amount of the principal of and interest on all Notes maturing on such maturity date. The Issuing and Paying Agent shall notify the City on or before 4:00 p.m., Chicago, Illinois time, on the Business Day prior to such maturity date, of the total amount due on such maturity date. Not later than 3:00 p.m., Chicago, Illinois time, on the maturity date of each Note, either the Issuing and Paying Agent or a Designated Representative shall notify the Bank providing the Advance if the City has not deposited or caused to be deposited, from Available Pledged Revenues or other moneys legally available therefor, with the Issuing and Paying Agent for deposit into the related Series Bank Payment Account, an amount equal to the Advance drawn on such date.
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Each Advance received by the Issuing and Paying Agent as a result of a drawing under a Letter of Credit to pay the principal of and interest on maturing Notes secured by such Letter of Credit shall be deposited into the applicable Debt Service Account, and shall be used to pay the principal of and interest on such maturing Notes upon the proper presentment thereof. Each Advance so deposited shall be held separate and apart from all other funds, accounts and subaccounts, and shall not commingled with any other moneys. At or before 2:00 p.m., Chicago, Illinois time, on each maturity date, the Issuing and Paying Agent shall notify the City whether or not the Issuing and Paying Agent has received a sufficient Advance or Advances to pay all such maturing principal and interest.
With respect to any Series of Notes, amounts deposited into a subaccount of a Bank Payment Account shall be used, on each day that an Advance with respect to Notes of the same Series designation is received by the Issuing and Paying Agent and deposited into the Debt Service Account of the same Series designation, by the Issuing and Paying Agent to reimburse each applicable Bank for the amount of such Advance; provided, however, that, if, on any maturity date of a Note of the same Series designation, the Advances paid under the Letter of Credit with respect to such Note are not sufficient to pay the full amount of the principal of and interest due on such Note on such date, amounts in the subaccount of the Bank Payment Account of the same Series designation shall be used to make the balance of such payment. For example, amounts deposited into the Series A-1 subaccount of the Series A Bank Payment Account shall be used, on each day that an Advance with respect to Series A-1 Notes is received by the Issuing and Paying Agent and deposited into the Series A-1 Debt Service Account, by the Issuing and Paying Agent to reimburse [Name of Bank] for the amount of such Advance; provided, however, that, if, on any maturity date of a Series A-1 Note, the Advances paid under the Letter of Credit with respect to such Series A-1 Note are not sufficient to pay the full amount of the principal of and interest due on such Series A-1 Note on such date, amounts in the Series A-1 Bank Payment Account shall be used to make the balance of such payment.
Moneys in a Debt Service Account shall not be invested. Moneys in any Bank Payment Account shall be invested and reinvested by the Issuing and Paying Agent in Permitted Investments as directed in writing by an Authorized City Representative.
Section 4.05. Drawings Under a Letter of Credit. On or before each maturity date for any Commercial Paper Note, the Issuing and Paying Agent shall present all required drawing certificates and accompanying documentation, if required, to the Bank providing the Letter of Credit for such maturing Commercial Paper Note and demand payment be made under such Letter of Credit on such maturity date at such time and in such amount not in excess of the Stated Amount so as to be timely and sufficient lo pay the entire amount of principal and interest becoming due on all Commercial Paper Notes on such date. Upon receipt of a Final Drawing Notice, the Issuing and Paying Agent shall present all required drawing certificates and accompanying documentation, if required, to the Bank providing the Final Drawing Notice and demand payment be made under such Bank's Letter of Credit prior to the date specified in the Final Drawing for termination of such Letter of Credit in such amount not in excess of the Stated Amount so as to be timely and sufficient to pay the entire amount of principal and interest becoming due on all Commercial Paper Notes secured by such Letter of Credit on their next maturity dates. No drawings under any Letter of Credit shall be used to pay (i) principal of and interest due on Bank Notes or any Notes which are owned or held by or for
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the account of the City or (ii) principal of and interest due on Commercial Paper Notes not secured by such Letter of Credit. Without limiting any other liability of the Issuing and Paying Agent for this or any other action, failure of the Issuing and Paying Agent to perform the duties and obligations set forth in this covenant shall constitute negligence on its part.
ARTICLE V The Bank Notes
Section 5.01. Authorization and Terms of Bank Notes, (a) The City hereby authorizes the issuance of one or more of its Bank Notes, subject to the provisions of this Section hereof and as hereinafter provided. Each Bank Note shall be issued to a Bank, and designated the "City of Chicago Bank Note, Chicago O'Hare International Airport, Commercial Paper Notes 2009 Program." The initial Bank Notes shall be issued by the City on the Closing Date in order to evidence the obligations of the City to reimburse each Bank for drawings under the Letter of Credit provided by such Bank, including unreimbursed Advances, together with interest thereon at the Bank Rate or the Default Rate, as applicable. Subsequent Bank Notes, substantially in the form of Exhibit B, may be issued upon delivery of a substitute Letter of Credit as provided in Article X hereof.
The Bank Notes shall be dated the date of issuance thereof; shall be issued in registered form only; shall be issued in any denomination; and shall bear interest at the Bank Rate or the Default Rate, as applicable (calculated on the basis of a year of 365 or 366 days, as applicable, and actual number of days elapsed or as otherwise set forth in the Bank Note); provided, however, that the interest rate on the Bank Notes shall never exceed eighteen percent (18%) per annum, subject to the applicable provisions of the related Reimbursement Agreement. Bank Notes shall bear interest from their respective dates, payable in accordance with the related Reimbursement Agreement. Principal of Bank Notes shall be payable in accordance with the related Reimbursement Agreement. The final maturity of the Bank Notes shall be no later than such date as may be provided for in the related Reimbursement Agreement.
The maturity date and other terms of each Bank Note, as long as not inconsistent with the terms of this Indenture, shall be as set forth in the certificate of an Authorized City Representative directing the issuance of such Bank Note.
Each Bank Note shall be subject to optional prepayment prior to maturity in accordance with, and upon notice as provided by, the related Reimbursement Agreement.
Section 5.02. Limited Obligations. The Bank Notes are limited obligations, as described in Section 2.03, payable solely from the sources described in Section 3.02.
Section 5.03. Form of Bank Notes. The definitive Bank Notes shall be substantially in the form set forth in Exhibit B attached hereto and made a part hereof, with such appropriate variations, omissions and insertions as shall be necessary or appropriate in order to accomplish the purpose of this Indenture. The Bank Notes may have endorsed thereon such legends or text as may be necessary or appropriate to conform to any applicable rules and
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regulations of any governmental authority or any usage or requirement of law or regulation with respect thereto.
Section 5.04. No Transfer of Bank Notes. To the extent permitted by applicable law, the Bank Notes shall be non-negotiable and non-transferable.
Section 5.05. Deposits of Available Pledged Revenues in Bank Note Account. On the Business Day before each Bank Note Payment Date, an Authorized City Representative shall allocate and transfer to the Issuing and Paying Agent for deposit in the Bank Note Account amounts from Available Pledged Revenues or other available moneys (including Post Defeasance Revenues), if any, as follows:
an amount equal to the aggregate amount of interest due and payable on such Bank Note Payment Date on all Bank Notes outstanding; and
an amount equal to the aggregate principal amount due and payable on such Bank Note Payment Date on the outstanding Bank Notes;
Amounts in the Bank Note Account shall be invested by the Issuing and Paying Agent in Permitted Investments as directed in writing by an Authorized City Representative, or, in the absence of direction from an Authorized City Representative, the Issuing and Paying Agent shall select Permitted Investments described in subparagraph (9) of the definition thereof. The Bank Notes shall not be payable from the proceeds of Letter of Credit drawings.
ARTICLE VI Covenants
Section 6.01. Tax Covenants. In order to maintain the exclusion from gross income of the interest on the Notes for Federal income tax purposes, the City covenants to comply with each applicable requirement of Section 103 and Sections 141 through 150 ofthe Code, and further agrees to comply with the covenants contained in, and the instructions given pursuant to, each Tax Certificate, which by this reference is incorporated herein, as a source of guidance for compliance with such provisions.
Notwithstanding any other provisions of this Indenture or any Supplemental Indenture to the contrary, upon the City's failure to observe, or refusal to comply with the foregoing covenant, no person other than the holders of any Notes shall be entitled to exercise any right or remedy provided to the holders of any Notes under this Indenture or any Supplemental Indenture on the basis of the City's failure to observe, or refusal to comply, with such covenant.
Section 6.02. Taxable Notes. Notwithstanding anything in this Indenture to the contrary, in the event an Authorized City Representative designates a Series as obligations not described in Section 103(a) of the Code, the provisions of Section 6.01 shall not apply to such Series.
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Section 6.03. Letter of Credit. The City hereby covenants to maintain in effect one or more Letters of Credit meeting the requirements hereof at all times that Commercial Paper Notes are Outstanding hereunder.
Section 6.04. Affirmative Covenants as to Application of Revenues. All
Revenues shall be collected by the City and promptly deposited to the credit of the Revenue Fund held by the Senior Lien Trustee. The amounts, funds and moneys held in the Revenue Fund (including Revenues) shall be allocated, applied and disbursed in accordance with the provisions of the Senior Lien Indenture.
The repayment of all Junior Lien Obligations, including the Commercial Paper Notes and the Bank Notes, shall be secured by a pledge of (1) Post Defeasance Revenues and (2) Withdrawn Amounts so long as such pledge of Withdrawn Amounts is junior and subordinate to the pledge of Revenues contained in Section 204 of the Senior Lien Indenture.
The City covenants that it shall at all times, to the extent permitted by law, defend, preserve, maintain and protect (A) the pledge of Revenues contained in Section 204 of the Senior Lien Indenture, (B) the allocation, application and disbursement of Revenues in accordance with the provisions of the Senior Lien Indenture and (C) all rights of the owners of Junior Lien Obligations with respect to the pledges of Post Defeasance Revenues and Withdrawn Amounts in order that (1) Revenues shall be deposited promptly into the Revenue Fund, (2) the amounts, funds and moneys held in the Revenue Fund (including Revenues) shall be allocated to the Junior Lien Obligation Debt Service Fund as provided in Section 302 of the Senior Lien Indenture; and (3) moneys held in the Junior Lien Obligation Debt Service Fund (including amounts constituting Revenues deposited therein pursuant to said Section 302) shall be available for disbursement, and shall be disbursed, for the punctual payment of Junior Lien Obligations.
The City further covenants that it will not (i) consent to any use or applications of the Revenues contrary to the provisions of the Senior Lien Indenture, or (ii) terminate or consent to the termination of the pledge created by this Indenture, in each case, unless and until (A) the principal of and interest on the Commercial Paper Notes has been paid in full or deemed to have been paid in full pursuant to Section 10.04 hereof and (B) the principal of and interest on the Bank Notes has been paid in full.
ARTICLE VII
Issuing and Paying Agent; Dealers
Section 7.01. Appointment of Issuing and Paying Agent. The City hereby appoints The Bank of New York Mellon Trust Company, N.A., as Issuing and Paying Agent, Authenticating Agent and Registrar, and agrees that, at or prior to the Substitution Date, the City will enter into the Issuing and Paying Agent Agreement and will at all times, prior to the Termination Date, maintain in effect an Issuing and Paying Agent Agreement, pursuant to which the Issuing and Paying Agent will agree to hold funds and fulfill the duties and obligations ofthe Issuing and Paying Agent, as provided for in this Indenture. If there are two entities acting
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collectively hereunder as Issuing and Paying Agent, either one may perform the duties of Issuing and Paying Agent under this Indenture and the Issuing and Paying Agent Agreement.
The Issuing and Paying Agent, Authenticating Agent, and Registrar shall (i) designate to the Trustee its principal office, and (ii) signify its acceptance of the duties and obligations imposed upon it hereunder and under any Supplemental Indenture by written instrument of acceptance delivered to the City and the Trustee.
Section 7.02. Reports and Records. The Issuing and Paying Agent shall at all times keep or cause to be kept proper records in which complete and accurate entries shall be made of all transactions made by it relating to the proceeds of the Notes and any funds and accounts established and maintained by the Issuing and Paying Agent pursuant to this Indenture and any Supplemental Indenture. Such records shall be available for inspection by the City or the Banks on each Business Day upon reasonable notice during reasonable business hours, and by any Owner or its agent or representative duly authorized in writing at reasonable hours and under reasonable circumstances. The Issuing and Paying Agent shall not be required to maintain records with respect to transactions made by the Trustee or an Authorized City Representative, or with respect to funds established and maintained by the Trustee.
The Issuing and Paying Agent shall provide to the Authorized City Representative each month a report of the amounts deposited in each fund and account held by it under this Indenture, and the amount disbursed from such funds and accounts, the earnings thereon, the ending balance in each of such funds and accounts, the investments in each such fund and account, and the yield on each investment calculated in accordance with the directions of an Authorized City Representative. Such report shall also include such information regarding the issuance of Commercial Paper Notes during the subject month as the City shall request.
The Issuing and Paying Agent shall maintain such books, records and accounts as may be necessary to evidence the obligations of the City resulting from the Commercial Paper Notes, the principal amounts owing thereunder, the maturity schedule therefor, the respective rates of interest thereon, and the principal and interest paid from time to time thereunder. As long as the Commercial Paper Notes are in book-entry form, in any legal action or proceeding with respect to a master note, the entries made in such books, records or accounts shall be, absent manifest error, conclusive evidence of the existence and the amounts of the obligations of the City therein recorded.
Section 7.03. Resignation and Replacement of Issuing and Paying Agent.
The Issuing and Paying Agent may at any time resign and be discharged of the duties and obligations created by this Indenture by giving at least 60 days' written notice to the Banks, the Trustee and the City. The Issuing and Paying Agent may be removed, with the written consent of the Banks, which consent shall not be unreasonably withheld, at any time, upon not less than 30 days written notice, by an instrument signed by an Authorized City Representative and filed with the Issuing and Paying Agent, the Bank and the Trustee. No such resignation or removal shall become effective, however, until a successor Issuing and Paying Agent has been selected and assumed the duties of the Issuing and Paying Agent hereunder and each Letter of Credit has been transferred to the successor Issuing and Paying Agent in accordance with its terms. If no
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substitute Issuing and Paying Agent has been appointed at the end of the sixty (60)-day period, then the Issuing and Paying Agent may petition a court of competentjurisdiction to make such appointment.
In the event of the resignation or removal of the Issuing and Paying Agent, the Issuing and Paying Agent shall pay over, assign and deliver any moneys held by it in such capacity to its successor. The Issuing and Paying Agent shall make any representations and warranties to the City as may be reasonably requested by the City in connection with any such assignment.
The Issuing and Paying Agent shall, at all times, be a bank or trust company having an office in Chicago, Illinois, and shall at all times be a corporation or a national banking association organized and doing business under the laws of the United States of America or of any state with a combined capital and surplus of at least $50,000,000 and authorized under such laws to exercise corporate trust powers and be subject to supervision or examination by Federal or state authority. If such corporation or national banking association publishes reports of condition at least annually pursuant to law or the requirements of such authority, then for the purposes of this Section, the combined capital and surplus of such corporation or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
Any corporation or national banking association into which any Issuing and Paying Agent may be merged or converted or with which it may be consolidated, or any corporation or national banking association resulting from any merger, consolidation or conversion to which any Issuing and Paying Agent shall be a party, or any corporation or national banking association succeeding to the corporate trust business of any Issuing and Paying Agent shall be the successor of the Issuing and Paying Agent if such successor corporation or national banking association is otherwise eligible under this Section, without the execution or filing of any document or further act on the part of the Issuing and Paying Agent or such successor corporation or national banking association.
Section 7.04. Dealers. The City hereby appoints Merrill Lynch, Pierce, Fenner & Smith Incorporated; Goldman, Sachs & Co.; Loop Capital Markets LLC; Barclays Capital Inc., MUFG Securities Americas, Inc. and Ramirez & Co. Inc. as Dealers, and agrees that, at or prior to the time of issuance of the initial Commercial Paper Notes, the City will enter into a Dealer Agreement with each Dealer. The City covenants that at all times prior to the Termination Date, it will maintain in effect one or more Dealer Agreements, pursuant to which each Dealer will agree to fulfill the duties and obligations of the Dealer as set forth in this Indenture and its Dealer Agreement.
ARTICLE VIII Trustee
Section 8.01. Acceptance of Trusts. The Trustee hereby accepts and agrees to execute the trusts specifically imposed upon it by this Indenture, but only upon the additional
terms set forth in this Article, to all of which the City agrees and the respective holders agree by their acceptance of delivery of any of the Notes.
Section 8.02. Duties of Trustee, (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise its rights and powers and use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs.
Subject to Section 8.02(a), the Trustee shall perform the duties set forth in this Indenture; no implied duties or obligations shall be read into this Indenture against the Trustee.
Except during the continuance of an Event of Default, in the absence of any negligence on its part or any knowledge to the contrary, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. The Trustee shall examine the certificates and opinions, however, to determine whether they conform to the requirements ofthis Indenture.
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: (1) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless the Trustee was negligent in ascertaining the pertinent facts; and (2) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it from holders or the City in the manner provided in this Indenture.
The Trustee shall not, by any provision of this Indenture, be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the holders of the Notes, unless such holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it to comply with such request or direction.
Every provision of this Indenture that in any way relates to the Trustee is subject to this Section.
The Trustee shall not be deemed to have knowledge of an Event of Default unless a Responsible Officer has received actual knowledge at the corporate trust office of the Trustee located in Chicago, Illinois.
Section 8.03. Rights of Trustee. Subject to the foregoing Section, the Trustee shall be protected and shall incur no liability in acting or proceeding in good faith upon any resolution, notice, telegram, request, consent, waiver, certificate, statement, affidavit, voucher, bond, requisition or other paper or document which it shall in good faith believe to be genuine and to have been passed or signed by the proper person or to have been prepared and furnished
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pursuant to any of the provisions of this Indenture, and the Trustee shall be under no duty to make investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements.
The Trustee may consult with counsel with regard to legal questions, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the Trustee hereunder in good faith in accordance therewith.
The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and the Trustee shall not be answerable for other than its negligence or willful default.
Notwithstanding the effective date of this Indenture or anything to the contrary in this Indenture, the Trustee shall have no liability or responsibility for any act or event relating to this Indenture which occurs prior to the date the Trustee formally executes this Indenture and commences acting as Trustee hereunder.
The Trustee shall have no responsibility with respect to any information, statement or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Notes, except for any information provided by the Trustee, and shall have no responsibility for compliance with any state or federal securities laws in connection with the Notes.
The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions ("Instructions") given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the City shall provide to the Trustee an incumbency certificate listing the Persons with the authority to provide such Instructions ("Authorized Persons") and containing specimen signatures of such Authorized Persons, which incumbency certificate shall be amended by the City whenever a Person is to be added or deleted from the listing. If the City elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee's understanding of such Instructions shall be deemed controlling. The City understands and agrees that the Trustee cannot determine the identity of the actual sender of such instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Person listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Person. The City shall be responsible for ensuring that only Authorized Persons transmit such Instructions to the Trustee and that the City and all Authorized Persons are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the City. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The City agrees (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of
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transmitting Instructions than the method(s) selected by the City; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use ofthe security procedures.
Section 8.04. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes, and may otherwise deal with the City with the same rights it would have if it were not Trustee. The Issuing and Paying Agent or any other agent may do the same with like rights.
Section 8.05. Trustee's Disclaimer. The Trustee shall not be accountable for the City's use of the proceeds from the Notes paid to the City and it shall not be responsible for any statement in the Notes.
Section 8.06. Notice of Defaults. If (i) an Event of Default has occurred, or (ii) an event has occurred which with the giving of notice and/or the lapse of time would be an Event of Default, and, with respect to such events for which notice to the City is required before such events will become Events of Default, such notice has been given, then the Trustee shall promptly, after obtaining actual notice of such Event of Default or event described in clause (ii) above, give notice thereof to each holder and to the Issuing and Paying Agent. Except in the case of a default in payment on any Notes, the Trustee may withhold the notice if and as long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the holders.
Section 8.07. Compensation of Trustee. For acting under this Indenture, the Trustee shall be entitled to payment of fees for its services and reimbursement of advances, counsel fees and other expenses reasonably and necessarily made or incurred by the Trustee in connection with its services under this Indenture and the City agrees to pay such amounts to the Trustee. The City agrees to indemnify and hold the Trustee harmless against costs, claims, expenses and liabilities not arising from the Trustee's own negligence, or willful misconduct, which the Trustee may incur in the exercise and performance of its rights and obligations hereunder. Such obligation shall survive the discharge of this Indenture or the resignation or removal of the Trustee. Upon an Event of Default, and only upon an Event of Default, the Trustee shall have a first lien with right of payment prior to payment on account of principal of and premium, if any, and interest on any Commercial Paper Note, upon the trust estate for fees, charges and expenses incurred by it.
Section 8.08. Eligibility of Trustee. This Indenture shall always have a Trustee that is a trust company or a bank having the powers of a trust company and is organized and doing business under the laws of the United States or any state or the District of Columbia, is authorized to conduct trust business under the laws of the State, is subject to supervision or examination by United States, state or District of Columbia authority, maintains a corporate trust office in Chicago, Illinois, and has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
Section 8.09. Replacement of Trustee. The Trustee may resign by notifying the City in writing at least 60 days prior to the proposed effective date of the resignation. The holders of a majority in Outstanding principal amount of the Notes may remove the Trustee by notifying the removed Trustee and may appoint a successor Trustee with the City's consent. The City may remove the Trustee, by notice in writing delivered to the Trustee 60 days prior to the proposed removal date; provided, however, that the City shall have no right to remove the Trustee during any time when an Event of Default has occurred and is continuing, or when an event has occurred and is continuing, or condition exists, which with the giving of notice or the passage of time or both would be an Event of Default.
No resignation or removal of the Trustee under this Section shall be effective until a new Trustee has taken office and delivered a written acceptance of its appointment to the retiring Trustee and to the City. Immediately thereafter, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee, the resignation or removal of the retiring Trustee shall then (but only then) become effective and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture.
If the Trustee resigns or is removed, or for any reason is unable or unwilling to perform its duties under this Indenture, the City shall promptly appoint a successor Trustee.
If a Trustee is not performing its duties hereunder and a successor Trustee does not take office within 60 days after the retiring Trustee delivers notice of resignation or the City delivers notice of removal, the retiring Trustee, the City or the holders of a majority in aggregate principal amount of the outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
Section 8.10. Successor Trustee by Merger. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its assets (or, in the case of a bank or trust company, its corporate trust assets) to another corporation which meets the qualifications set forth in this Indenture, the resulting, surviving or transferee corporation, without any further act, shall be the successor Trustee.
Section 8.11. Other Agents. The City, or the Trustee with the consent of the City (which consent may not be unreasonably withheld), may from time to time appoint other agents as may be appropriate at the time to perform duties and obligations under this Indenture or under a Supplemental Indenture all as provided by Supplemental Indenture or resolution or ordinance of the City.
Section 8.12. Several Capacities. Anything in this Indenture to the contrary notwithstanding, with the written consent of the City, the same entity may serve hereunder as the Trustee and any other agent as appointed to perform duties or obligations under this Indenture, under a Supplemental Indenture or an escrow agreement, or in any combination of such capacities, to the extent permitted by law.
Section 8.13. Accounting Records and Reports of the Trustee. The Trustee shall at all times keep, or cause to be kept, proper records in which complete and accurate entries shall be made of all transactions made by it relating to the Note Proceeds and all funds and
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accounts established pursuant to this Indenture. Such records shall be available for inspection by the City on each Business Day during reasonable business hours and by any holder, or his agent or representative duly authorized in writing, at reasonable hours and under reasonable circumstances.
The Trustee shall provide to the City each month a report of any Note Proceeds received during that month, if any, and the amounts deposited into each fund and account held by it under this Indenture and the amount disbursed from such funds and accounts, the earnings thereon, the ending balance in each of such funds and accounts and the investments of each such fund and account.
The Trustee shall annually, within a reasonable period after the end of the Fiscal Year, furnish to the City a statement (which need not be audited) covering receipts, disbursements, allocation and application of Note Proceeds, and any other moneys in any of the funds and accounts held by it established pursuant to this Indenture or any Supplemental Indenture for the preceding year.
Section 8.14. Executive Order 2011-4. The Trustee agrees that the Trustee, any person or entity who directly or indirectly has an ownership or beneficial interest in the Trustee of more than 7.5 percent ("Owners"), spouses and domestic partners of such Owners, the Trustee's Subcontractors, any person or entity who directly or indirectly has an ownership or beneficial interest in any Subcontractor of more than 7.5 percent ("Sub-owners") and spouses and domestic partners of such Sub-owners (the Trustee and all the other preceding classes of persons and entities are together, the "Identified Parties"), shall not make a contribution of any amount to the Mayor of the City of Chicago (the "Mayor") or to his political fundraising committee (i) after execution of this Indenture by the Trustee, (ii) while this Indenture or any Other Contract is executory, (iii) during the term of this Indenture or any Other Contract between the Trustee and the City, or (iv) during any period while an extension of this Indenture or any Other Contract is being sought or negotiated.
The Trustee represents and warrants that since the date the City approached the Trustee regarding appointment of the Trustee to serve as Trustee under this Indenture, no Identified Parties have made a contribution of any amount to the Mayor or to his political fundraising committee.
The Trustee agrees that it shall not: (a) coerce, compel or intimidate its employees to make a contribution of any amount to the Mayor or to the Mayor's political fundraising committee; (b) reimburse its employees for a contribution of any amount made to the Mayor or to the Mayor's political fundraising committee; or (c) Bundle or solicit others to Bundle Contributions to the Mayor or to his political fundraising committee.
The Trustee agrees that the Identified Parties must not engage in any conduct whatsoever designed to intentionally violate this provision or Mayoral Executive Order No. 2011-4 or to entice, direct or solicit others to intentionally violate this provision or Mayoral Executive Order No. 2011 -4.
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The Trustee agrees that a violation of, non-compliance with, misrepresentation with respect to, or breach of any covenant or warranty under this provision or violation of Mayoral Executive Order No. 2011-4 constitutes a breach and default by the Trustee under this Indenture, and under any Other Contract for which no opportunity to cure will be granted. Such breach and default entitles the City to replace the Trustee as Trustee under this Indenture and entitles the City to all remedies (including without limitation termination for default) under any Other Contract, at law and in equity. This provision amends any Other Contract and supersedes any inconsistent provision contained therein.
For purposes ofthis provision:
"Bundle" means to collect Contributions from more than one source which are then delivered by one person to the Mayor or to his political fundraising committee.
"Contribution" means a "political contribution" as defined in Chapter 2-156 of the Municipal Code of Chicago, as amended.
Individuals are "Domestic Partners" if they satisfy the following criteria:
they are each other's sole domestic partner, responsible for each other's common welfare; and
neither party is married; and
the partners are not related by blood closer than would bar marriage in the State of Illinois; and
each partner is at least 18 years of age, and the partners are the same sex, and the partners reside at the same residence; and
two of the following four conditions exist for the partners:
The partners have been residing together for at least 12 months.
The partners have common or joint ownership of a residence.
The partners have at least two of the following arrangements:
joint ownership of a motor vehicle;
a joint credit account;
a joint checking account;
a lease for a residence identifying both domestic partners as
tenants.
(iv) Each partner identifies the other partner as a primary beneficiary in
a will.
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"Other Contract" means any other agreement with the City to which the Trustee is a party that is (i) formed under the authority of chapter 2-92 of the Municipal Code of Chicago; (ii) entered into for the purchase or lease of real or personal property; or (iii) for materials, supplies, equipment or services which are approved or authorized by the City Council of the City.
"Political fundraising committee" means a "political fundraising committee" as defined in Chapter 2-156 of the Municipal Code of Chicago, as amended.
ARTICLE IX
Events of Default and Remedies of Noteholders
Section 9.01. Events of Default. Each of the following events shall constitute and is referred to in this Indenture as an "Event of Default":
a failure to pay the principal of any Commercial Paper Note when the same shall become due and payable;
a failure to pay any installment of interest on any Commercial Paper Note when such interest shall become due and payable;
a failure by the City to observe and perforin any covenant, condition, agreement or provision (other than as specified in paragraphs (a) and (b) of this Section) contained in the Commercial Paper Notes or in this Indenture on the part of the City to be observed or performed, which failure shall continue for a period of 60 days after written notice, specifying such failure and requesting that it be remedied, shall have been given to the City by the Trustee, which notice may be given at the discretion of the Trustee and shall be given at the written request of holders of 25% or more in aggregate principal amount of the Commercial Paper Notes then Outstanding, unless the Trustee, or the Trustee and holders of Commercial Paper Notes in an amount not less than the Outstanding principal amount of Commercial Paper Notes the holders of which requested such notice, shall agree in writing to an extension of such period prior to its expiration; provided, however, that the Trustee, or the Trustee and the holders of such principal amount of Commercial Paper Notes, shall be deemed to have agreed to an extension of such period if such failure can be remedied, and corrective action is initiated by the City within such period and is being diligently pursued;
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, including, without limitation, proceedings under Chapter 9 or 11 of the United States Bankruptcy Code (as the same may from time to time be hereafter amended), or other proceedings for relief under any Federal or state bankruptcy law or similar law for the relief of debtors are instituted by or against the City, and, if instituted against the City, said proceedings are consented to or are not dismissed within 60 days after such institution; or
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(e) the occurrence of any other Event of Default as is provided in a Supplemental Indenture.
If any Event of Default has occurred, but is subsequently cured or waived, then such Event of Default shall no longer constitute an Event of Default hereunder.
Section 9.02. Remedies, (a) Subject to the right of a Bank to control remedies pursuant to Section 10.05 hereof, upon the occurrence and continuance of any Event of Default, the Trustee in its discretion may, and upon the written direction of the holders of 25% or more in aggregate principal amount of the Commercial Paper Notes then Outstanding and receipt of indemnity to its satisfaction, shall, in its own name and as the Trustee of an express trust: (i) by mandamus, or other suit, action or proceeding at law or in equity, enforce all rights of the Commercial Paper Noteholders, and require the City to carry out any agreements with or for the benefit of the Commercial Paper Noteholders and to perform its or their duties under any law to which it is subject and this Indenture, provided that any such remedy may be taken only to the extent permitted under the applicable provisions of this Indenture; (ii) bring suit upon the Commercial Paper Notes; (iii) commence an action or suit in equity to require the City to account as if it were the trustee of an express trust for the Commercial Paper Noteholders; or (iv) by action or suit in equity enjoin any acts or things which may be unlawful or in violation of the rights of the Commercial Paper Noteholders.
(b) ¦ The Trustee shall be under no obligation to take any action with respect to any Event of Default unless a Responsible Officer of the Trustee has actual knowledge of the occurrence of such Event of Default.
Section 9.03. Restoration to Former Position. In the event that any proceeding taken by the Trustee to enforce any right under this Indenture shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then the City, the Trustee, and the Commercial Paper Noteholders shall be restored to their former positions and rights hereunder, respectively, and all rights, remedies and powers of the Trustee shall continue as though no such proceeding had been taken.
Section 9.04. Commercial Paper Noteholders' Right To Direct Proceedings. Subject to Section 9.05, and the right of a Bank to control remedies pursuant to Section 10.05 hereof, the holders of a majority in aggregate principal amount of the Commercial Paper Notes then Outstanding shall have the right, at any time, by an instrument in writing executed and delivered to the Trustee, to direct the time, method and place of conducting all remedial proceedings available to the Trustee under this Indenture to be taken in connection with the enforcement of the terms of this Indenture or exercising any trust or power conferred on the Trustee by this Indenture; provided that such direction shall not be otherwise than in accordance with the provisions of the law and this Indenture; and provided, further, that with respect to any such direction by the holders of Commercial Paper Notes there shall have been provided to the Trustee security and indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred as a result thereof by the Trustee. In the event of any conflict in the directions of a Bank and the holders of Commercial Paper Notes, the direction of the holders of Commercial Paper Notes shall control in the case of the enforcement of the tax covenants contained in Section 6.01 and the direction of the Banks shall control in all other cases.
Section 9.05. Limitation on Right To Institute Proceedings. Subject to Section 9.05, and the right ofa Bank to control remedies pursuant to Section 10.05 hereof, no Commercial Paper Noteholder shall have any right to institute any suit, action or proceeding in equity or at law for the execution of any trust or power hereunder, or any other remedy hereunder or on such Commercial Paper Note, unless such Commercial Paper Noteholder or Commercial Paper Noteholders previously shall have given to the Trustee written notice of an Event of Default as hereinabove provided, and unless also holders of 25% or more in aggregate principal amount of the Commercial Paper Notes then Outstanding shall have made written request of the Trustee so to do, after the right to institute such suit, action or proceeding under Section 9.02 shall have accrued, and shall have afforded the Trustee a reasonable opportunity to proceed to institute the same in either its or their name, and unless there also shall have been offered to the Trustee security and indemnity satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee shall not have complied with such request within a reasonable time; and such notification, request and offer of indemnity are hereby declared in every such case, at the option of the Trustee, to be conditions precedent to the institution of such suit, action or proceeding; it being understood and intended that no one or more of the Commercial Paper Noteholders shall have any right in any manner whatever by his, her or their action to affect, disturb or prejudice the security of this Indenture, or to enforce any right hereunder or under the Commercial Paper Notes, except in the manner herein provided, and that all suits, actions and proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Commercial Paper Noteholders.
Section 9.06. No Impairment of Right To Enforce Payment.
Notwithstanding any other provision in this Indenture, the right of any Commercial Paper Noteholder to receive payment of the principal of and interest on such Noteholder's Commercial Paper Notes, on or after the respective due dates expressed therein and to the extent of the Available Pledged Revenues and other security provided for the Commercial Paper Notes, or to institute suit for the enforcement of any such payment on or after such respective date, shall not be impaired or affected without the consent of such Commercial Paper Noteholder.
Section 9.07. Proceedings by Trustee Without Possession of Commercial Paper Notes. All rights of action under this Indenture or under any of the Commercial Paper Notes secured hereby which are enforceable by the Trustee may be enforced by it without the possession of any of the Commercial Paper Notes, or the production thereof at the trial or other proceedings relative thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the equal and ratable benefit of the Commercial Paper Noteholders, subject to the provisions of this Indenture.
Section 9.08. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Trustee or to Commercial Paper Noteholders is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder, or now or hereafter existing at law or in equity or by statute; provided, however, that any conditions set forth herein to the taking of any remedy to enforce the provisions of this Indenture or the Commercial Paper Notes shall also be conditions to seeking any remedies under any of the foregoing pursuant to this Section.
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Section 9.09. No Waiver of Remedies. No delay or omission of the Trustee or of any Commercial Paper Noteholder to exercise any right or power accruing upon any default shall impair any such right or power, or shall be construed to be a waiver of any such default, or an acquiescence therein; and every power and remedy given by this Article to the Trustee and to the Commercial Paper Noteholders, respectively, may be exercised from time to time and as often as may be deemed expedient.
Section 9.10. Application of Moneys. Any moneys received by the Trustee, by any receiver or by any Commercial Paper Noteholder pursuant to any right given or action taken under the provisions of this Article (which shall not include moneys provided through the Letters of Credit, which moneys shall be restricted to the specific use for which such moneys were provided), after payment of the costs and expenses of the proceedings resulting in the collection of such moneys and of the expenses, liabilities and advances incurred or made by the Trustee (including attorneys' fees), shall be applied as follows:
first, to the payment to the persons entitled thereto of all installments of interest then due on the Commercial Paper Notes and Bank Notes, with interest on overdue installments, if lawful, at the rate per annum borne by the Commercial Paper Notes or Bank Notes, as the case may be, in the order of maturity of the installments of such interest, and, if the amount available shall not be sufficient to pay in full any particular installment of interest, then to the payment ratably, according to the amounts due on such installment,
second, to the payment to the persons entitled thereto of the unpaid principal amount of any of the Commercial Paper Notes and Bank Notes which shall have become due with interest on such Commercial Paper Notes or Bank Notes, as applicable, at their respective rate from the respective dates upon which they became due, and, if the amount available shall not be sufficient to pay in full Commercial Paper Notes due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal and interest due on such date, in each case to the persons entitled thereto, without any discrimination or privilege,
third, to the payment to the Bank of any unpaid Bank Obligations (other than Bank Notes).
Whenever moneys are to be applied pursuant to the provisions of this Section, such moneys shall be applied at such times, and from time to time, as the Trustee shall determine, having due regard for the amount of such moneys available for application and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee shall apply such funds, it shall fix the date upon which such application is to be made and upon such date interest on the amounts of principal and interest to be paid on such date shall - cease to accrue. The Trustee shall give notice of the deposit with it of any such moneys and of the fixing of any such date by first-class United States mail, postage prepaid, to all Commercial Paper Noteholders, and shall not be required to make payment to any Commercial Paper Noteholder until such Commercial Paper Notes shall be presented to the Trustee for appropriate endorsement, or for cancellation if fully paid.
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Section 9.11. Severability of Remedies. It is the purpose and intention of this Article to provide rights and remedies to the Trustee and the Commercial Paper Noteholders, which may be lawfully granted under the provisions of applicable law, but should any right or remedy herein granted be held to be unlawful, the Trustee and the Noteholders shall be entitled, as above set forth, to every other right and remedy provided in this Indenture or by applicable law.
Section 9.12. Additional Events of Default and Remedies. As long as any particular Series of Commercial Paper Notes is Outstanding, the remedies as set forth in this Article may be supplemented with additional remedies as set forth in a Supplemental Indenture.
ARTICLE X Miscellaneous
Section 10.01. Substitute Letter of Credit. Notwithstanding anything herein to the contrary, the City may obtain a substitute Letter of Credit to replace any Letter of Credit then in effect hereunder as long as said substitute Letter of Credit shall go into effect at least one Business Day prior to the termination of the Letter of Credit then in effect being substituted for. The substitution date shall be a date that is either (i) the maturity date for all then outstanding Notes secured by the Letter of Credit being replaced or (ii) a date that no Notes secured by the Letter of Credit being replaced are outstanding. Except as described in the first sentence of this Section, at no time may more than one Letter of Credit or substitute Letter of Credit secure any ofthe following: the Series A Notes, the Series B Notes, the Series C Notes or any other Series of Notes with a different letter designation. The Expiration Date with respect to each substitute Letter of Credit shall be no earlier than the earlier of (i) six (6) months after its date, or (ii) the Expiration Date set forth in the Letter of Credit then in effect being substituted for. Each substitute Letter of Credit shall be in an amount sufficient to pay all principal and interest scheduled to be paid on all Commercial Paper Notes Outstanding hereunder ofthe Series secured thereby as of the effective date of such substitute Letter of Credit. In connection with a substitution, if a draw on a Letter of Credit is required, the Letter of Credit being replaced shall be drawn upon to pay any Commercial Paper Notes of the designated Series secured thereby maturing on the substitution date. The following are further conditions to the Issuing and Paying Agent's ability to release an existing Letter of Credit and accept a substitute Letter of Credit therefor:
The City shall deliver written notice of the proposed substitution to the Trustee, the Issuing and Paying Agent, the Banks and the Dealer not less than 45 days prior to the proposed substitution date.
There shall be delivered to the City, the Trustee and the Issuing and Paying Agent written evidence from each Rating Agency then maintaining a rating on the Commercial Paper Notes secured by the Letter of Credit then in effect being substituted for that the substitution of such Letter of Credit will not, in and of itself, result in any rating then assigned to the Commercial Paper Notes secured thereby being suspended, reduced or withdrawn, unless such substitution shall occur on a date (i) that is the
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maturity date for all then Outstanding Notes secured by the Letter of Credit being replaced or (ii) that no Notes secured by the Letter of Credit being replaced are outstanding.
The Issuing and Paying Agent shall deliver written notice to the registered Owners of the Commercial Paper Notes secured thereby at least 30 days prior to the proposed substitution date. If any Outstanding Note secured thereby is in bearer form, the Trustee shall publish notice of the proposed substitution of such Letter of Credit in a newspaper of general circulation in the City at least 30 days prior to the proposed substitution date.
An opinion or opinions of counsel to the successor Banks, satisfactory in form and substance to each Rating Agency then maintaining a rating on the Commercial Paper Notes to be secured thereby, shall be delivered to the effect that the substitute Letter of Credit is a legal, valid and binding obligation of the issuing Bank or Banks and is enforceable against the issuing Bank or Banks in accordance with its terms.
An opinion of Bond Counsel shall be delivered to the effect that the substitution of the Letter of Credit is authorized hereunder and (with respect to Notes other than taxable Notes) will not, in and of itself, adversely affect the exclusion from gross income for Federal tax purposes of interest on the Notes.
Section 10.02. Timeliness of Deposits. Funds shall be deemed transferred for purposes of timeliness of receipt under this Indenture when transfer instructions for transfer by Federal reserve wire have been given and a Federal wire number confirmation has been received; provided that the party to receive such funds shall not be required to take any action required to be taken hereunder with respect to such funds until it has confirmation of actual receipt of such funds.
Section 10.03. Waiver of Events of Default. No Event of Default with respect to the Commercial Paper Notes or the Bank Notes shall be waived unless after such waiver the reinstatement provisions ofthe affected Letters of Credit, if any, shall be in full force and effect.
Section 10.04. Defeasance of Commercial Paper Notes. Commercial Paper Notes shall not be deemed to have been paid in full unless payment of the principal of and interest on the Commercial Paper Notes either (a) shall have been made or caused to be made in accordance with the terms of the Commercial Paper Notes and this Indenture, or (b) shall have been provided for by irrevocably depositing with the Trustee in trust and irrevocably setting aside exclusively for such payment (i) Available Moneys sufficient to make such payment, and/or (ii) noncallable Government Obligations purchased with Available Moneys, maturing as to principal and interest in such amounts and at such times as will insure the availability of sufficient moneys to make such payment.
Section 10.05. Bank to Control Remedies. While a Letter of Credit is in effect or there are unreimbursed Advances for payment of principal of Commercial Paper Notes with respect to such Letter of Credit, notwithstanding anything else herein to the contrary, as long as the Bank providing such Letter of Credit is not Insolvent and has not failed to honor a properly
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presented and conforming drawing under its Letter of Credit, no right, power or remedy with respect to the Commercial Paper Notes secured by such Letter of Credit may be pursued without the prior written consent of the Bank providing such Letter of Credit, and such Bank shall be treated as the Owner of (i) Outstanding Commercial Paper Notes upon which such Bank is then obligated pursuant to a Letter of Credit and (ii) the principal amount of Commercial Paper Notes paid with unreimbursed Advances under such Letter of Credit (which Commercial Paper Notes shall be deemed Outstanding for the purpose of obtaining consents of or providing direction from the owners of Commercial Paper Notes) for the purpose of calculating whether or not the owners of a requisite percentage of Commercial Paper Notes then Outstanding have consented to any request, consent, directive, waiver or other action permitted to be taken by the Owners of Commercial Paper Notes pursuant to this Indenture; provided, however, that the written consent of the Bank shall not be required and the Bank shall not be treated as the Owner of Commercial Paper Notes whenever any holder of any Commercial Paper Note shall pursue any remedy related to the enforcement of the tax covenants contained in Section 6.01.
Section 10.06. Payments or Actions Occurring on Non-Business Days. If a
payment date is not a Business Day at the place of payment, or if any action required hereunder is required on a date that is not a Business Day, then payment may be made at that place on the next Business Day, or such action may be taken on the next Business Day, with the same effect as if payment were made, or the action taken, on the stated date, and no interest shall accrue for the intervening period.
Section 10.07. Notices to Rating Agencies. The Authorized City Representative shall provide the Rating Agencies with written notice of the occurrence of the following events: (i) changes in the Dealer or the Trustee, (ii) the appointment of a successor Issuing and Paying Agent, (iii) amendments to the Indenture, the Issuing and Paying Agent Agreement or the Reimbursement Agreement, (iv) the expiration, termination, substitution, extension or amendment of a Letter of Credit, and (v) the defeasance of all Outstanding Commercial Paper Notes. Notices to Fitch shall be addressed as follows (or as provided in any subsequent notice to the City): One State Street Plaza, New York, New York 10004; Attention: Public Finance. Notices to S&P shall be addressed as follows (or as provided in any subsequent notice to the City): S&P Global Ratings, 55 Water Street, 41sl Floor, New York, New York 10041, email: Pubfin_structured@spglobal.com .
Section 10.08. Parties in Interest. Except as herein otherwise specifically provided, nothing in this Indenture expressed or implied is intended or shall be construed to confer upon any person, firm or corporation other than the City, the Trustee, the Paying Agent, other agents from time to time hereunder, the holders of the Notes, and, to the extent provided by this Indenture, each Bank, any right, remedy or claim under or by reason of this Indenture, this Indenture being intended to be for the sole and exclusive benefit of the City, the Trustee, the Paying Agent, such other agents, the holders of the Notes and, to the extent provided in this Indenture, each Bank.
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ARTICLE XI
Supplemental Indentures
Section 11.01. Limitations. This Indenture shall not be modified or amended in any respect subsequent to the first delivery of fully executed and authenticated Notes except as provided in, and in accordance with and subject to the provisions of, this Article.
Section 11.02. Supplemental Indentures Not Requiring Consent of Noteholders. The City may, and while a Letter of Credit is in effect and as long as the Bank providing such Letter of Credit is not Insolvent and has not failed to honor a properly presented and conforming drawing under its Letter of Credit, with the prior written consent of such Bank, from time to time and at any time, without the consent of or notice to the Noteholders, execute and deliver Supplemental Indentures supplementing and/or amending this Indenture or any Supplemental Indenture as follows:
to cure any formal defect, omission, inconsistency or ambiguity in, or answer any questions arising under, this Indenture or any Supplemental Indenture,
- provided that such supplement or amendment is not materially adverse to the Noteholders;
to add to the covenants and agreements of the City in this Indenture or any Supplemental Indenture other covenants and agreements, or to surrender any right or power reserved or conferred upon the City, provided that such supplement or amendment is not materially adverse to the Noteholders;
to confirm, as further assurance, any interest of the Issuing and Paying Agent in and to the Available Pledged Revenues, or in and to the funds and accounts held by the Trustee or the Issuing and Paying Agent, or in and to any other moneys, securities or funds of the City provided pursuant to this Indenture, or to otherwise add additional security for the Noteholders;
to evidence any change made in the terms of any Series of Notes if such changes are authorized by the Supplemental Indenture at the time the Series of Notes is issued and such change is made in accordance with the terms of such Supplemental Indenture;
to comply with the requirements of the Trust Indenture Act of 1939, as from time to time amended;
to modify, alter, amend or supplement this Indenture or any Supplemental Indenture in any other respect which is not materially adverse to the Noteholders;
to qualify the Notes or a Series of Notes for a rating or ratings by Moody's, S&P and/or Fitch;
to accommodate the technical, operational and structural features of Notes which are issued or are proposed to be issued, including, but not limited to, changes
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needed to accommodate a Series of Notes secured by an additional Letter of Credit or to accommodate Parity Notes, Senior Lien Bonds and Junior Lien Obligation Bonds, other forms of commercial paper, or other forms of indebtedness which the City from time to time deems appropriate to incur;
(i) to comply with the requirements of the Code as are necessary, in the opinion of Bond Counsel, to preserve the exclusion from gross income for Federal income taxation of the interest on Notes issued as tax-exempt Notes, as appropriate, including, without limitation, the segregation of Available Pledged Revenues into different funds; or
(i) to take effect only with respect to Notes issued on or after the effective date of the Supplemental Indenture accompanied by appropriate disclosure of the amendment or supplement.
Before the City shall, pursuant to this Section, execute any Supplemental Indenture, there shall have been delivered to the City and the Trustee an opinion of Bond Counsel to the effect that such Supplemental Indenture is authorized or permitted by this Indenture and applicable law, complies with their respective terms, will, upon the execution and delivery thereof, be valid and binding upon the City in accordance with its terms, and will not cause interest on any of the Notes which is then excluded from gross income of the recipient thereof for Federal income tax purposes to be included in gross income for Federal income tax purposes.
Section 11.03. Supplemental Indentures Requiring Consent of Noteholders.
Except for any Supplemental Indenture entered into pursuant to Section 11.02 and any Supplemental Indenture entered into pursuant to subsection (b) of this Section, subject to the terms and provisions contained in this Section and not otherwise, the holders of not less than a majority in aggregate principal amount of the Notes then Outstanding shall have the right from time to time, and while a Letter of Credit is in effect, and, as long as the Bank providing such Letter of Credit is not Insolvent and has not failed to honor a properly presented and conforming drawing under its Letter of Credit, with the prior written consent of such Bank, to consent to and approve the execution by the City of any Supplemental Indenture deemed necessary or desirable by the City for the purposes of modifying, altering, amending, supplementing or rescinding, in any particular, any of the terms or provisions contained in this Indenture or in any Supplemental Indenture; provided, however, that, unless approved in writing by the holders of all the Notes then Outstanding, or unless such change affects less than all Series of Notes and subsection (b) below is applicable, nothing herein contained shall permit, or be construed as permitting, (i) an extension in the stated maturity of any Outstanding Notes, or a change in the amounts or currency of payment ofthe principal of or interest on any Outstanding Notes, or (ii) a reduction in the principal amount or redemption price of any Outstanding Notes, or the rate of interest thereon; and provided that nothing herein contained, including the provisions of subsection (b) below, shall, unless approved in writing by the holders of all the Notes then Outstanding, permit or be construed as permitting (iii) except with respect to additional security which may be provided for a particular Series of Notes, a preference or priority of any Note or Notes over any other Note or Notes with respect to the security granted therefor under this Indenture, or (iv) a reduction in the aggregate principal amount of Notes the consent of the Noteholders of which is
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required for any such Supplemental Indenture. Nothing herein contained, however, shall be construed as making necessary the approval by Noteholders of the execution of any Supplemental Indenture as authorized in Section 11.02, including the granting, for the benefit of particular Series of Notes, security in addition to the pledge of the Available Pledged Revenues.
Subject to the provisions of Section 11.02 and Section 11.03(a), the City may, from time to time and at any time, execute a Supplemental Indenture which amends the provisions of an earlier Supplemental Indenture. If such Supplemental Indenture is executed for one of the purposes set forth in Section 11.02, no notice to or consent of the Noteholders shall be required. If such Supplemental Indenture contains provisions which affect the rights and interests of less than all Series of Notes Outstanding and Section 11.02 is not applicable, then this subsection (b) rather than subsection (a) of this Section shall control, and, subject to the terms and provisions contained in this Section and not otherwise, the holders of not less than a majority in aggregate principal amount of the Notes of all Series which are affected by such changes shall have the right from time to time to consent to any Supplemental Indenture deemed necessary or desirable by the City for the purposes of modifying, altering, amending, supplementing or rescinding, in any particular, any of the terms or provisions contained in such Supplemental Indenture and affecting only the Notes of such Series; provided, however, that, unless approved in writing by the holders of all the Notes of all the affected Series then Outstanding, nothing herein contained shall permit, or be construed as permitting, (i) a change in the scheduled times, amounts or currency of payment of the principal of or interest on any Outstanding Notes of such Series, or (ii) a reduction in the principal amount or redemption price of any Outstanding Notes of such Series or the rate of interest thereon. Nothing herein contained, however, shall be construed as making necessary the approval by Noteholders of the adoption of any Supplemental Indenture as authorized in Section 11.02, including the granting, for the benefit of particular Series of Notes, security in addition to the pledge of the Available Pledged Revenues and Post Defeasance Revenues.
If at any time the City shall desire to enter into any Supplemental Indenture for any of the purposes of this Section, the City shall cause notice of the proposed execution of the Supplemental Indenture to be given by first-class United States mail to the Bank and all Noteholders or, under subsection (b) of this Section, the Bank and all Noteholders of the Series. Such notice shall briefly set forth the nature of the proposed Supplemental Indenture and shall state that a copy thereof is on file at the office of the City for inspection by all Noteholders, and it shall not be required that the Noteholders approve the final form of such Supplemental Indenture but it shall be sufficient if such Noteholders approve the substance thereof.
The City may execute and deliver such Supplemental Indenture in substantially the form described in such notice, but only if there shall have first been delivered to the City (i) any required consents, in writing, of the Bank and the Noteholders, and (ii) the opinion of Bond Counsel required by the last paragraph of Section 11.02.
If Noteholders of not less than the percentage of Notes required by this Section shall have consented to and approved the execution and delivery thereof as herein
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provided, no Noteholders shall have any right to object to the adoption of such Supplemental Indenture, or to object to any of the terms and provisions contained therein or the operation thereof, or in any manner to question the propriety of the execution and delivery thereof, or to enjoin or restrain the City from executing the same or from taking any action pursuant to the provisions thereof.
Section 11.04. Effect of Supplemental Indenture. Upon execution and delivery of any Supplemental Indenture pursuant to the provisions of this Article, this Indenture or the Supplemental Indenture shall be, and shall be deemed to be, modified and amended in accordance therewith, and the respective rights, duties and obligations under this Indenture and the Supplemental Indenture of the City, the Trustee, the Issuing and Paying Agent, each Bank and all Noteholders shall thereafter be determined, exercised and enforced under this Indenture and the Supplemental Indenture, if applicable, subject in all respects to such modifications and amendments.
Section 11.05. Supplemental Indentures To Be Part of This Indenture. Any
Supplemental Indenture adopted in accordance with the provisions of this Article shall thereafter form a part of this Indenture or the Supplemental Indenture which they supplement or amend, and all of the terms and conditions contained in any such Supplemental Indenture as to any provision authorized to be contained therein shall be and shall be deemed to be part of the terms and conditions of this Indenture or the Supplemental Indenture which they supplement or amend for any and all purposes.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture lo be duly executed, all as ofthe date fust above written.
CITY OF CHICAGO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
By:
Its:
[SEAL] ATTEST:
By:
Its:
Signature I'age to Trust Indenture
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the date first above written.
CITY OF CHICAGO
By:
Chief Financial Officer
[SEAL] ATTEST:
By:
City Clerk
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
Its: Viee President
Signature Page to Trust Indenture
EXHIBIT A
(Form of Master Note)
CITY OF CHICAGO CHICAGO O'HARE INTERNATIONAL AIRPORT COMMERCIAL PAPER NOTES 2009 PROGRAM SERIES _
Registered Owner: CEDE & CO.
Principal Sum: Not to Exceed the Authorized Amount set forth below
The City of Chicago, (the "City"), a municipality and a home rule unit of local government duly organized and validly existing under the Constitution and laws of the State of Illinois, for value received, hereby promises to pay (but only out of the Available Pledged Revenues hereinafter referred to) to the registered owner hereinabove named or registered assigns, the principal amount, together with unpaid accrued interest thereon, if any, on the maturity date of each obligation identified on the records of the City (the "Underlying Records") as being evidenced by this Master Note, which Underlying Records are maintained by The Bank of New York Mellon Trust Company, N.A., as an Issuing and Paying Agent (an "Issuing and Paying Agent") under that certain Issuing and Paying Agent Agreement, dated as of September 1, 2016, between the City and the Issuing and Paying Agent (the "Issuing and Paying Agent Agreement"). Interest on this Master Note shall be calculated on the basis of actual days elapsed in a 365- or 366-day year, as the case may be, at the rate or yield specified on the Underlying Records. Payments shall be made solely from Available Pledged Revenues (as defined in the Indenture referred to hereinafter) and payments of drawings under an irrevocable, transferrable, direct-pay letter of credit issued pursuant to the hereinafter defined Indenture, by wire transfer to the registered owner stated hereinabove from the Issuing and Paying Agent without the necessity of presentation and surrender of this Master Note.
This Master Note is one of a duly authorized issue of Commercial Paper Notes of the City (hereinafter called the "Notes") of the series and designation indicated on the face hereof. Said authorized issue of Notes consists of multiple series of varying denominations, dates, maturities, interest rates and other provisions, as in the Indenture hereinafter mentioned provided, all issued and to be issued pursuant to the provisions of Section 6(a) of Article VII of the 1970 Constitution ofthe State of Illinois and an ordinance (the "CP Note Ordinance") duly adopted by the City Council of the City on November 18, 2009. This Master Note evidences a series of Notes designated as the "City of Chicago Chicago O'Hare International Airport Commercial Paper Note, 2009 Program Series _" (hereinafter called the "Series Notes"). This Note is issued pursuant to the CP Note Ordinance and a Trust Indenture, dated as of September 1, 2016 (the "Indenture"), between the City and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Trustee"), providing for the issuance of the Series A through C Notes (as defined therein) in twelve series in the aggregate principal amount Outstanding at any time not to exceed $420,000,000. The authorized issue of this Series Note is limited to the principal amount of Four Hundred Twenty Million Dollars ($420,000,000) reduced by the
A-1
aggregate principal amount of Notes ofthe other series then outstanding under the Indenture (the "Authorized Amount").
Reference is hereby made to the Indenture and the CP Note Ordinance for a description of the terms on which the Notes are issued and to be issued, the provisions with regard to the nature and extent of the Available Pledged Revenues and Post Defeasance Revenues, as those terms are defined in the Indenture, and the rights of the registered owners of the Notes; and all the terms of the Indenture and the CP Note Ordinance are hereby incorporated herein and made a contract between the City and the registered owner from time to time of this Master Note, and to all the provisions thereof the registered owner of this Note, by its acceptance hereof, consents and agrees. Additional series of Notes may be issued on a parity with the Notes of this authorized series.
This Master Note, including the interest hereon, together with all other Notes and the interest thereon, issued under the Indenture (and to the extent set forth in the Indenture), is payable from, and is secured by a pledge of and lien on, the Available Pledged Revenues derived by the City from the Airport (as those terms are defined in the Indenture).This Master Note, including interest hereon, together with all other Notes and the interest thereon, issued under the Indenture, shall be limited obligations of the City payable solely from Available Pledged Revenues, Post Defeasance Revenues and securities and moneys held by the Trustee under the provisions of the Indenture. This Master Note, including interest hereon, together with all other Notes and the interest thereon, issued under the Indenture, do not constitute an indebtedness or a loan of credit of the City within the meaning of any constitutional or statutory limitation, and neither the faith and credit nor the taxing power of the City, the State of Illinois or any political subdivision thereof is pledged to the payment of the principal of or interest on this Master Note and all other Notes issued under the Indenture.
The Notes are special, limited obligations of the City, shall be payable as to both principal and interest from, and shall be secured by a pledge of, lien on and security interest in all Available Pledged Revenues and all amounts in the funds and accounts created or maintained pursuant to the Indenture, the Issuing and Paying Agent Agreement or any Tax Certificate (except the Rebate Fund), including earnings on such amounts, subject only to the provisions of the Indenture and the Issuing and Paying Agent Agreement permitting the application thereof for the purposes, and on the terms and conditions, set forth therein, which pledge, lien and security interest shall be junior and subordinate to the pledge and lien created thereon by the Senior Lien Indenture in favor of the Senior Lien Bonds, and to the pledge and the lien created thereon by the Junior Lien Obligation Bonds Indenture or otherwise in favor of any Junior Lien Obligation Bonds. The Notes are also secured by a pledge of, lien on and security interest in the Post Defeasance Revenues, which pledge, lien and security interest shall be junior and subordinate to any pledge and lien created thereon in favor of any Junior Lien Obligation Bonds by any Junior Lien Obligation Bonds Indenture. Neither the faith and the credit nor the taxing power of the City is pledged to the payment of the principal of, or interest on, this Master Note.
At the request of the registered owner, the City shall promptly issue and deliver one or more separate note certificates evidencing each obligation evidenced by this Master Note. As of the date any such note certificate or certificates are issued, the obligations which are evidenced thereby shall no longer be evidenced by this Master Note. This Master Note is
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transferable by the registered owner hereof, in person or by attorney duly authorized in writing, at the principal office of the Issuing and Paying Agent in Chicago, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this Note. Upon such transfer a new fully registered Note or Notes of the same Series designation, without coupons, of authorized denomination or denominations, for the same aggregate principal amount will be issued to the transferee in exchange herefor.
The City, the Trustee and each Issuing and Paying Agent may deem and treat the registered owner hereof as the absolute owner hereof for all purposes, and the City, the Trustee and the Issuing and Paying Agent shall not be affected by any notice to the contrary.
The rights and obligations of the City and of the registered owners of the Notes may be modified or amended at any time in the manner, to the extent, and upon the terms provided in the Indenture and, under certain circumstances as described in the Indenture, without the consent of the holders of the Notes.
It is hereby certified and recited that any and all acts, conditions and things required to exist, to happen and to be performed, precedent to and in the incurring of the indebtedness evidenced by this Master Note, and in the issuing of this Master Note, do exist, have happened and have been performed in due time, form and manner, and that this Master Note is not in excess of the amount of Notes permitted to be issued under the CP Note Ordinance.
This Master Note shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon endorsed shall have been signed by an Issuing and Paying Agent. This Master Note is a valid and binding obligation of City.
[Signatures Appear on Following Page]
A-3
IN WITNESS WHEREOF, the City of Chicago, has caused this Master Note to be executed in its name and on its behalf by the manual or facsimile signature of the Mayor of the Issuer and the seal of the Issuer to be impressed or imprinted hereon and attested by the
manual or facsimile signature of the City Clerk of the Issuer, all as of the day of
, 20_.
CITY OF CHICAGO
By:
Mayor
[SEAL] ATTEST:
By:
City Clerk
CERTIFICATE OF AUTHENTICATION
This Master Note is the Master Note described in the within Master Note and the within-mentioned Indenture.
Date of Authentication:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Issuing and Paying Agent
Authorized Signature
A-4
(FORM OF ASSIGNMENT) ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please Print or Typewrite Name and Address) (Please Insert Social Security or other Taxpayer
Identification Number of Assignee: )
the within Master Note and all rights and title therein, and hereby irrevocably constitutes and
appoints
, attorney, to transfer the within Master Note on the books kept for
registration thereof, with full power of substitution in the premises.
(Registered Owner)
Dated:
NOTICE: The signature(s) to this assignment must correspond with the name as it appears upon the face of the within Master Note in every particular, without alteration or enlargement or any change whatever.
Signature Guaranteed:
NOTICE: Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the City or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
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EXHIBIT A
(Form of Master Note)
CITY OF CHICAGO CHICAGO O'HARE INTERNATIONAL AIRPORT COMMERCIAL PAPER NOTES 2009 PROGRAM SERIES _
Registered Owner: CEDE & CO.
Principal Sum: Not to Exceed the Authorized Amount set forth below
The City of Chicago, (the "City"), a municipality and a home rule unit of local government duly organized and validly existing under the Constitution and laws ofthe State of Illinois, for value received, hereby promises to pay (but only out of the Available Pledged Revenues hereinafter referred to) to the registered owner hereinabove named or registered assigns, the principal amount, together with unpaid accrued interest thereon, if any, on the maturity date of each obligation identified on the records of the City (the "Underlying Records") as being evidenced by this Master Note, which Underlying Records are maintained by The Bank of New York Mellon Trust Company, N.A., as an Issuing and Paying Agent (an "Issuing and Paying Agent") under that certain Issuing and Paying Agent Agreement, dated as of September 1, 2016, between the City and the Issuing and Paying Agent (the "Issuing and Paying Agent Agreement"). Interest on this Master Note shall be calculated on the basis of actual days elapsed in a 365- or 366-day year, as the case may be, at the rate or yield specified on the Underlying Records. Payments shall be made solely from Available Pledged Revenues (as defined in the Indenture referred to hereinafter) and payments of drawings under an irrevocable, transferrable, direct-pay letter of credit issued pursuant to the hereinafter defined Indenture, by wire transfer to the registered owner stated hereinabove from the Issuing and Paying Agent without the necessity of presentation and surrender of this Master Note.
This Master Note is one of a duly authorized issue of Commercial Paper Notes of the City (hereinafter called the "Notes") of the series and designation indicated on the face hereof. Said authorized issue of Notes consists of multiple series of varying denominations, dates, maturities, interest rates and other provisions, as in the Indenture hereinafter mentioned provided, all issued and to be issued pursuant to the provisions of Section 6(a) of Article VII of the 1970 Constitution of the State of Illinois and an ordinance (the "CP Note Ordinance") duly adopted by the City Council of the City on November 18, 2009. This Master Note evidences a series of Notes designated as the "City of Chicago Chicago O'Hare International Airport Commercial Paper Note, 2009 Program Series _" (hereinafter called the "Series Notes"). This Note is issued pursuant to the CP Note Ordinance and a Trust Indenture, dated as of September 1, 2016 (the "Indenture"), between the City and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Trustee"), providing for the issuance ofthe Series A through C Notes (as defined therein) in twelve series in the aggregate principal amount Outstanding at any time not to exceed $420,000,000. The authorized issue of this Series Note is limited to the principal amount of Four Hundred Twenty Million Dollars ($420,000,000) reduced by the
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aggregate principal amount of Notes of the other series then outstanding under the Indenture (the "Authorized Amount").
Reference is hereby made to the Indenture and the CP Note Ordinance for a description of the terms on which the Notes are issued and to be issued, the provisions with regard to the nature and extent of the Available Pledged Revenues and Post Defeasance Revenues, as those terms are defined in the Indenture, and the rights of the registered owners of the Notes; and all the terms of the Indenture and the CP Note Ordinance are hereby incorporated herein and made a contract between the City and the registered owner from time to time of this Master Note, and to all the provisions thereof the registered owner of this Note, by its acceptance hereof, consents and agrees. Additional series of Notes may be issued on a parity with the Notes of this authorized series.
This Master Note, including the interest hereon, together with all other Notes and the interest thereon, issued under the Indenture (and to the extent set forth in the Indenture), is payable from, and is secured by a pledge of and lien on, the Available Pledged Revenues derived by the City from the Airport (as those terms are defined in the Indenture).This Master Note, including interest hereon, together with all other Notes and the interest thereon, issued under the Indenture, shall be limited obligations of the City payable solely from Available Pledged Revenues, Post Defeasance Revenues and securities and moneys held by the Trustee under the provisions ofthe Indenture. This Master Note, including interest hereon, together with all other Notes and the interest thereon, issued under the Indenture, do not constitute an indebtedness or a loan of credit of the City within the meaning of any constitutional or statutory limitation, and neither the faith and credit nor the taxing power of the City, the State of Illinois or any political subdivision thereof is pledged to the payment of the principal of or interest on this Master Note and all other Notes issued under the Indenture.
The Notes are special, limited obligations of the City, shall be payable as to both principal and interest from, and shall be secured by a pledge of, lien on and security interest in all Available Pledged Revenues and all amounts in the funds and accounts created or maintained pursuant to the Indenture, the Issuing and Paying Agent Agreement or any Tax Certificate (except the Rebate Fund), including earnings on such amounts, subject only to the provisions of the Indenture and the Issuing and Paying Agent Agreement permitting the application thereof for the purposes, and on the terms and conditions, set forth therein, which pledge, lien and security interest shall be junior and subordinate to the pledge and lien created thereon by the Senior Lien Indenture in favor of the Senior Lien Bonds, and to the pledge and the lien created thereon by the Junior Lien Obligation Bonds Indenture or otherwise in favor of any Junior Lien Obligation Bonds. The Notes are also secured by a pledge of, lien on and security interest in the Post Defeasance Revenues, which pledge, lien and security interest shall be junior and subordinate to any pledge and lien created thereon in favor of any Junior Lien Obligation Bonds by any Junior Lien Obligation Bonds Indenture. Neither the faith and the credit nor the taxing power of the City is pledged to the payment of the principal of, or interest on, this Master Note.
At the request of the registered owner, the City shall promptly issue and deliver one or more separate note certificates evidencing each obligation evidenced by this Master Note. As of the date any such note certificate or certificates are issued, the obligations which are evidenced thereby shall no longer be evidenced by this Master Note. This Master Note is
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transferable by the registered owner hereof, in person or by attorney duly authorized in writing, at the principal office of the Issuing and Paying Agent in Chicago, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this Note. Upon such transfer a new fully registered Note or Notes of the same Series designation, without coupons, of authorized denomination or denominations, for the same aggregate principal amount will be issued to the transferee in exchange herefor.
The City, the Trustee and each Issuing and Paying Agent may deem and treat the registered owner hereof as the absolute owner hereof for all purposes, and the City, the Trustee and the Issuing and Paying Agent shall not be affected by any notice to the contrary.
The rights and obligations of the City and of the registered owners of the Notes may be modified or amended at any time in the manner, to the extent, and upon the terms provided in the Indenture and, under certain circumstances as described in the Indenture, without the consent of the holders of the Notes.
It is hereby certified and recited that any and all acts, conditions and things required to exist, to happen and to be performed, precedent to and in the incurring of the indebtedness evidenced by this Master Note, and in the issuing of this Master Note, do exist, have happened and have been performed in due time, form and manner, and that this Master Note is not in excess of the amount of Notes permitted to be issued under the CP Note Ordinance.
This Master Note shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon endorsed shall have been signed by an Issuing and Paying Agent. This Master Note is a valid and binding obligation of City.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, the City of Chicago, has caused this Master Note to be executed in its name and on its behalf by the manual or facsimile signature of the Mayor of the Issuer and the seal of the Issuer to be impressed or imprinted hereon and attested by the
manual or facsimile signature of the City Clerk of the Issuer, all as of the day of
, 20_.
CITY OF CHICAGO
By:
Mayor
[SEAL] ATTEST:
By:
City Clerk
CERTIFICATE OF AUTHENTICATION
This Master Note is the Master Note described in the within Master Note and the within-mentioned Indenture.
Date of Authentication:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Issuing and Paying Agent
Authorized Signature
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(FORM OF ASSIGNMENT) ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(Please Print or Typewrite Name and Address) (Please Insert Social Security or other Taxpayer
Identification Number of Assignee: )
the within Master Note and all rights and title therein, and hereby irrevocably constitutes and
appoints
, attorney, to transfer the within Master Note on the books kept for
registration thereof, with full power of substitution in the premises.
(Registered Owner)
Dated:
NOTICE: The signature(s) to this assignment must correspond with the name as it appears upon the face of the within Master Note in every particular, without alteration or enlargement or any change whatever.
Signature Guaranteed:
NOTICE: Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the City or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
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EXHIBIT B
(Form of Bank Note)
CITY OF CHICAGO BANK NOTE CHICAGO O'HARE INTERNATIONAL AIRPORT, COMMERCIAL PAPER NOTES 2009 PROGRAM
FOR VALUE RECEIVED, the undersigned, CITY OF CHICAGO (the
"Borrower"), hereby promises to pay to the order of (the
"Bank"), at , in the manner and on the dates
provided in the hereinafter defined Agreement in lawful money of the United States of America and in immediately available funds, the principal amount of
DOLLARS ($ ), or, if less, the
aggregate unreimbursed amount of the Advances made by the Bank pursuant to the Agreement. Terms used herein and not otherwise defined herein shall have the meanings assigned to them in
the Reimbursement Agreement dated as of , (the "Agreement ") between
the Borrower and the Bank, as from time to time in effect.
The BoiTower further promises to pay interest from the date hereof on the outstanding principal amount hereof and unpaid interest hereon from time to time at the rates and times and in all cases in accordance with the terms of the Agreement. The Bank may endorse its records relating to this Bank Note with appropriate notations evidencing the Advances and payments of principal hereunder as contemplated by the Agreement.
This Bank Note is issued pursuant to, is entitled to the benefits of, and is subject to, the provisions of the Agreement and that certain Trust Indenture dated as of September 1, 2016 between the Borrower and The Bank of New York Mellon Trust Company, N.A., as Trustee. The principal of this Bank Note is subject to prepayment in whole or in part in accordance with the terms of the Agreement.
The parties hereto, including the undersigned maker and all guarantors, endorsers and pledgors that may exist at any time with respect hereto, hereby waive presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance and enforcement of this Bank Note and assent to the extensions of the time of payment or forbearance or other indulgence without notice.
THIS BANK NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL PURPOSES BE GOVERNED BY AND INTERPRETED AND DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
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IN WITNESS WHEREOF, the Borrower has caused this Letter of Credit Note to be signed in its corporate name as an instrument under seal by its duly authorized officer on the date and in the year first above written.
CITY OF CHICAGO
By:
Name:
Chief Financial Officer
[SEAL] ATTEST:
By:
City Clerk
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EXHIBIT C
FORM OF 2009 PROGRAM SERIES
CONSTRUCTION FUND REQUISITION
Requisition No.
To:
Re: Requisition of Funds from City of Chicago Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series Construction Fund
The amount requisitioned: $
Payment to be made to:
Manner in which payment is to be made:
The undersigned, an Authorized City Representative within the meaning of the Trust Indenture, dated as of September 1, 2016 (the "Indenture"), between the City of Chicago (the "City") and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Trustee"), hereby requisitions the amount set forth above and directs that such amount be paid to the party
set forth above from funds held in the Series Construction Fund held under the Indenture,
and directs that payment be made in the manner described above.
For Private Activity (AMT), Private Activity (Non-AMT) and Non-Private
Activity (Non-AMT) Projects only: The amount to be paid represents a cost of the Series
Project as described in a Tax Certificate ofthe City, and the amounts requisitioned hereby will be expended only in accordance with and subject to the limitations set forth in the Tax
Certificate, dated , 20 , and relating to the Series Notes issued under
the Indenture.
For Taxable Projects only: The amount to be paid represents a cost of a Taxable Project.
Dated: '
CITY OF CHICAGO
By:
Authorized City Representative
C-l
EXHIBIT D
DESIGNATION OF SERIES A THROUGH C NOTES
The City authorizes the issuance of its Notes to be designated as set forth below:
Designation
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series A-1" (AMT) (the "Series A-1 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series A-2" (Non-AMT) (the "Series A-2 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series A-3" (Taxable) (the "Series A-3 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series A-4" (Non-AMT) (the "Series A-4 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series B-1" (AMT) (the "Series B-1 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series B-2" (Non-AMT) (the "Series B-2 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series B-3" (Taxable) (the "Series B-3 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series B-4" (Non-AMT) (the "Series B-4 Notes")
Secured by Letter of Credit Issued By
Bank of America, N.A.
The Bank of Tokyo-Mitsubishi, UFJ, Ltd.
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Secured by Letter of Credit Issued By
"City of Chicago, Chicago O'Hare International Airport Barclays Bank, PLC Commercial Paper Notes, 2009 Program Series C-l" (AMT) (the "Series C-1 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series C-2" (Non-AMT) (the "Series C-2 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series C-3" (Taxable) (the "Series C-3 Notes")
"City of Chicago, Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program Series C-4" (Non-AMT) (the "Series C-4 Notes")
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US_ 118481475v 10_220378-00260 9/20/2016 6 05 PM
ISSUANCE REQUEST (2009 PROGRAM) (FOR DRAWS MATURING PRIOR TO MARCH 28, 2018)
The undersigned, a Designated Representative of the City of Chicago (the "City") does hereby request The Bank of New York Mellon Trust Company, N.A., as an Issuing and Paying Agent (the "Issuing and Paying Agent") under the Issuing and Paying Agent Agreement, dated as of September 1, 2016 (the "Issuing and Paying Agent Agreement"), between the City and the Issuing and Paying Agent, to issue Commercial Paper Notes as follows:
1. Date of Issuance: September 28, 2016
2. Principal Amount: $100,000
A. Series A-1. B-1 orC-1 CAMT) Series
Refunding Notes, 2009 Program $
Refunding Other Airport Obligations $
New Money, 2009 Program $
Series A-2. B-2 or C-2 (Non-AMT) Series A-2*
Refunding Notes, 2009 Program** $
Refunding Other Airport Obligations $
New Money, 2009 Program $100,000
Series A-3. B-3 or C-3 (Taxable') Series
Refunding Notes, 2009 Program** $
Refunding Other Airport Obligations $
New Money, 2009 Program $
D. Series A-4. B-4 or C-4 (Non-AMT) Series
Refunding Notes, 2009 Program** $
Refunding Other Airport Obligations $
New Money, 2009 Program $
Total Principal Amount and Purchase Price for Notes $100,000
3. ""Terms of Series A-1, B-1 or C-l Notes (AMT):
Maturity Principal Interest Interest
Series Dealer Date Amount of Rate Amount
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Specify the Series and, of more than one, separately identify each Series and the uses for such Series, including the dollar amount, on a separate sheet.
Must be to refund Notes of the same Series, unless the Notes being issued are Taxable or the use is approved by Bond Counsel.
Must be before the earlier of (i) the date set forth or the end of the 18 month period referred to in the Bond Counsel opinion and (ii) The Termination Date, being the 16th day prior to the stated expiration of the related Letter of Credit.
To be completed by 11:30 a.m. (Chicago, Illinois time) on the Date of Issuance specified in Paragraph 1.
4. "''Terms of Series A-2, B-2 or C-2 Notes (Non-AMT):
5. Terms of Series A-3, B-3 or C-3 Notes (Taxable):
6. Terms of Series A-4, B-4 or C-4 Notes (Non-AMT):
Pursuant to Section 2.06(b) of that certain Trust Indenture, dated as of September 1, 2016 (the "Indenture"), between the City and The Bank of New York Mellon Trust Company, N.A., National Association, as trustee, relating to Chicago O'Hare International Airport Commercial Paper Notes, 2009 Program, the undersigned hereby certifies as follows:
a Letter of Credit with respect to the Notes now being issued is in full force and effect;
after the issuance of Commercial Paper Notes as requested hereby and the application of proceeds thereof, the aggregate principal amount of Commercial Paper Notes Outstanding will not exceed the amount currently authorized to be Outstanding under the Indenture as provided in Section 2.01(b) thereof;
(iii) the issuance of Commercial Paper Notes requested hereby, if refunding notes
issued under the 2009 Program, will be applied to pay $ of
Commercial Paper Notes of the same Series designation maturing on the date hereof and will not be used to pay any Commercial Paper Notes of other Series designations unless approved by Bond Counsel or the Commercial Paper Notes requested hereby are Taxable Notes. [If more than one Series is issued for refunding purposes, specify each Series and the amount applied to pay maturing Commercial Paper Notes and, if used to refund Commercial Paper
"* To be completed by 11:30 a.m. (Chicago, Illinois time) on the Date of Issuance specified in Paragraph 1.
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Notes of other Series designations, indicate the Scries designation being issued and the amount and the Series designation being refunded thereby as follows:
];
the aggregate principal amount of Commercial Paper Notes described in this Issuance Request (together with the interest thereon), plus the aggregate principal amount of all Commercial Paper Notes currently outstanding (together with the interest thereon), less the aggregate principal amount of any of the currently Outstanding Commercial Paper Notes to be retired concurrently with the issuance of the Commercial Paper Notes described in this Issuance Request (including interest thereon), does not exceed the amount available to be drawn under the Letter of Credit securing such Commercial Paper Notes;
unless interest on the Commercial Paper Notes to be issued is taxable, to the City's knowledge there has been no change in the facts, estimates, circumstances and representations of the City set forth or made (as the case may be) in each Tax Certificate applicable to the Commercial Paper Notes being issued and to the extent that Note Proceeds are being deposited to the Construction Fund or are being used during the period described in the Tax Certificate (not exceeding 18 months) to reimburse interest on Commercial Paper Notes then maturing, a certificate regarding the use of such proceeds, as required by the Tax Certificate, is attached hereto as Attachment A;
the term to maturity of the Commercial Paper Notes to be delivered does not exceed 270 days, the term to maturity does not exceed the number of days of the interest coverage period under the Letter of Credit securing the Commercial Paper Notes, and the maturity dates of such Commercial Paper Notes set forth herein do not extend beyond the Termination Date of the Letter of Credit securing such Commercial Paper Notes;
the City has not been notified by Bond Counsel that its opinion with respect to the validity of the Commercial Paper Notes and, unless interest on the Commercial Paper Notes is to be taxable, the tax treatment of the interest thereon has been revised or withdrawn or, if any such revision or withdrawal has occurred, the revised opinion or substitute opinion has not been revised or withdrawn;
to the actual knowledge of the City, no Event of Default has occurred and is now continuing;
$ of Note Proceeds shall be deposited into the appropriate
subaccount of the Bank Payment Account;
$100,000 of Note Proceeds shall be deposited into the appropriate account ofthe Construction Fund; and
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$ of funds shall be deposited by the City into the appropriate
subaccount of the Bank Payment Account to reimburse interest currently payable on maturing Commercial Paper Notes; and
(x) all of the conditions precedent to the issuance of Commercial Paper Notes set forth in Section 2.06 ofthe Indenture have been satisfied.
All capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Indenture.
Date: September 28, 2016 Request Number: 2016: A2-1
By A.
City.of Chicago
Designated Representative
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Attachment A
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