Ordinance 2006-026 I
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UNITED CITY OF YORKVILLE .
KENDALL COUNTY
STATE OF ILLINOIS
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ORDINANCE NUMBER 2006 -26
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AN ORDINANCE PROVIDING FOR ISSUANCE OF
UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS
SPECIAL SERVICE AREA NUMBER 2005 -108
SPECIAL TAX BONDS, SERIES 2006
(AUTUMN CREEK PROJECT)
ADOPTED BY THE
CITY COUNCIL
OF THE
UNITED CITY OF YORKVILLE
KENDALL COUNTY
STATE OF ILLINOIS
The 28` of March, 2006
Published in pamphlet form by authority of the City Council of the United City of Yorkville,
Kendall County, Illinois this 28th day of March, 2006.
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ORDINANCE NO. 2006-26
AN ORDINANCE PROVIDING FOR ISSUANCE OF
UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS
SPECIAL SERVICE AREA NUMBER 2005 -108
SPECIAL TAX BONDS, SERIES 2006
(AUTUMN CREEK PROJECT)
j BE IT ORDAINED BY THE CITY COUNCIL OF THE UNITED CITY OF
YORKVILLE, KENDALL COUNTY, ILLINOIS, AS FOLLOWS:
Section 1. Findines and Declarations. It is found and declared by the City Council of
the United City of Yorkville, Kendall County, Illinois (the "Cit ') as follows:
a. The City has previously established Special Service Area Number 2005 -108
described more fully in Exhibit A to this Ordinance (the "Special Service Area ") pursuant
to Ordinance Number 2006 -25 adopted on March 28, 2006 (the "Establishing
Ordinance "), the provisions of the Special Service Area Tax Law, 35 ILCS 200/27 -5 et
seq., as amended (the "Special Service Area Act ") and the provisions of Section 7 of
Article VII of the 1970 Constitution of the State of Illinois, and has otherwise complied
with all other conditions precedent required by the Special Service Area Act.
b. It is necessary and in the best interests of the City to provide at this time
special services benefiting the Special Service Area consisting of the acquisition,
construction and installation of public improvements including, but not limited to,
engineering, soil testing and appurtenant work, mass grading and demolition, storm water
management facilities, storm drainage systems and storm sewers, site clearing and tree
removal, public water facilities, sanitary sewer facilities, erosion control measures, roads,
streets, curbs, gutters, street lighting, traffic controls, sidewalks, bicycle paths and related
street improvements, park improvements and equipment and materials necessary for the
maintenance thereof, landscaping, wetland mitigation and tree installation, costs for land
and easement acquisitions relating to any of the foregoing improvements, required tap -on
and related fees for water or sanitary sewer services and other eligible costs. The City
presently estimates the total cost of these Special Services to be funded through the
issuance of bonds at this time together with costs of borrowing money for that purpose,
funding administrative expenses and providing for necessary debt service reserves and
capitalized interest (collectively, the "Costs of the Special Services ") to not exceed
$15,500,000.
c. The City does not have sufficient funds on hand or available from other
sources with which to pay the costs of the Special Services.
d. It is in the best interests of the City to issue not to exceed $15,500,000
principal amount of its Special Service Area Number 2005 -108 Special Tax Bonds,
Series 2006 (Autumn Creek Project) (the " Bonds ") as provided in this Ordinance, to pay
or provide funds for a portion of the Costs of the Special Services.
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e. The borrowing of the sum of not to exceed $15,500,000 and the issuance of
the Bonds in that amount are for purposes constituting special services in the Special
Service Area under the Special Service Area Act.
f. After due publication on January 9, 2006 of a notice as required by the Special
Service Area Act, a public hearing to consider the establishment of the Special Service
Area, the issuance of the Bonds for the purpose of paying the costs of the Special
Services and the manner in which the Bonds are proposed to be retired and the proposed
tax levy, was held on January 24, 2006 at 7:00 p.m. No objection petition has been filed
with respect to the establishment of the Special Service Area or the issuance of the Bonds
within the period of time allowed pursuant to the Special Service Area Act.
Section 2. Issuance of Bonds. The City shall borrow the sum of not to exceed
$15,500,000 by issuing the Bonds as provided in this Ordinance. The Bonds shall be designated
"United City of Yorkville, Kendall County, Illinois Special Service Area Number 2005 -108
Special Tax Bonds, Series 2006 (Autumn Creek Project)," and shall be issued for the purpose of
providing a portion of the funds needed for the Costs of the Special Services. The Bonds shall
be issued pursuant to the powers of the City pursuant to Section 7 of Article VII of the 1970
Constitution of the State of Illinois; the Special Service Area Act; and the Local Government
Debt Reform Act, 30 ILCS 350/1 et seq. (the "Debt Act ").
Section 3. ADDroval of Documents. There have been submitted to the City Council
forms of the following documents relating to the issuance of the Bonds:
a. a form of Trust Indenture (the "Indenture ") between the City and The Bank of
New York Trust Company, N.A., as Trustee, to be dated as of March 1, 2006, which
form of Indenture is attached as Exhibit B to this Ordinance;
b. a form of Bond Purchase Agreement (the "Bond Purchase Agreement ")
between the City and William Blair & Company, L.L.C., as Underwriter (the
"Underwriter "), and Pulte Homes Corporation, a Michigan corporation (the " Developer")
to be dated as of the date the offer of the Underwriter to purchase the Bonds is accepted
by the City, which form of Bond Purchase Agreement is attached as Exhibit C to this
Ordinance;
c. a form of Public Infrastructure Agreement for United City of Yorkville
Special Service Area Number 2005 -108 Autumn Creek Project between the City and the
Developer, which form of Public Infrastructure Agreement is attached as Exhibit D to
this Ordinance;
d. a form of the Preliminary Limited Offering Memorandum (the "Preliminary
Limited Offering Memorandum ") used by the Underwriter in its initial offering of the
Bonds, which form of Preliminary Limited Offering Memorandum is attached as Exhibit
E to this Ordinance;
e. a form of the Agreement for Consulting Services by and between the
Developer, David Taussig & Associates, Inc. ( "Taussi ") and the City which form of
Agreement for Consulting Services is attached as Exhibit F to this Ordinance; and
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f. a form of the Agreement for Administrative Services between Taussig and the
City which form of Agreement for Administrative Services is attached as Exhibit G to
this Ordinance.
Such documents are approved as to form and substance and the Mayor and the City Clerk
of the City are authorized and directed to execute and deliver and/or authorize the use of such
documents on behalf of the City in the forms submitted with such additions, deletions and
completions of the same (including the establishment of the terms of the Bonds within the
parameters set forth in this Ordinance) as the Mayor and the City Clerk deem appropriate; and
when each such document is executed, attested, sealed and delivered on behalf of the City, as
provided herein, each such document will be binding on the City; from and after the execution
and delivery of each such document, the officers, employees and agents of the City are hereby
authorized, empowered and directed to do all such acts and things and to execute all such
additional documents as may be necessary to carry out, comply with and perform the provisions
of each such document as executed; and each such document shall constitute, and hereby is
made, a part of this Ordinance, and a copy of each such document shall be placed in the official
records of the City, and shall be available for public inspection at the office of the City Clerk.
Either the Mayor or City Clerk is authorized and directed, subject to the terms of the -Bond
Purchase Agreement as executed,. to execute a final Limited Offering Memorandum in
substantially the form of the Preliminary Limited Offering Memorandum presented hereto with
such changes, additions or deletions as they deem appropriate to reflect the final terms of the
Bonds, the Indenture and other matters.
Section 4. Bond Terms. The Bonds shall be issued as provided in the Indenture and
shall be issued in the principal amount of not to exceed $15,500,000, shall be dated, shall mature,
shall bear interest at the rates (not to exceed in any year six and one -half percent (6.50 %) per
annum) and shall be subject to redemption at the times and prices as set forth in the Indenture,
and shall be sold to the Underwriter at a purchase price of not less than 98.5% of the principal
amount of the Bonds with an original issue discount of not to exceed 1.0% of the principal
amount of the Bonds, all as set forth in the Bond Purchase Agreement. The execution and
delivery of the Bond Purchase Agreement by the Mayor and the City Clerk shall evidence their
approval of the terms of the Bonds set forth above.
Section 5. Execution and Delivery of Bonds. The Mayor and the City Clerk are
authorized and directed to execute and deliver the Bonds and, together with other Authorized
Officers (as defined in the Indenture), to take all necessary action with respect to the issuance,
sale and delivery of the Bonds, all in accordance with the terms and procedures specified in this
Ordinance and the Indenture. The Bonds shall be delivered to the Trustee who is directed to
authenticate the Bonds and deliver the Bonds to the Underwriter upon receipt of the purchase
price for the Bonds.
The Bonds shall be in substantially the form set forth in the Indenture. Each Bond shall
be executed by the manual or facsimile signature of the Mayor and the manual or facsimile
signature of the City -Clerk and shall have the corporate seal of the City affixed to it (or a
facsimile of that seal printed on it). The Mayor and the City Clerk (if they have not already done
so) are authorized and directed to file with the Illinois Secretary of State their manual signatures
certified by them pursuant to the Uniform Facsimile Signatures of Public Officials Act, as
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amended, which shall authorize the use of their facsimile signatures to execute the Bonds. Each
Bond so executed shall be as effective as if manually executed. In case any officer of the City
whose signature or a facsimile of whose signature shall appear on the Bonds shall cease to be
such officer before authentication and delivery of any of the Bonds, that signature or facsimile
signature shall nevertheless be valid and sufficient for all purposes, the same as if the officer had
remained in office until delivery.
No Bond shall be valid for any purpose unless and until a certificate of authentication on
that Bond substantially in the form set forth in the bond form in the Indenture shall have been
duly executed by the Trustee. Execution of that certificate upon any Bond shall be conclusive
evidence that the Bond has been authenticated and delivered under this Ordinance.
Section 6. Bonds are Limited Obliiiations: Levy of Special Tax: Pledee. The Bonds
shall constitute limited obligations of the City, payable from the Special Taxes (as defined
below) to be levied on all taxable real property within the Special Service Area as provided
below. The Bonds shall not constitute the general obligations of, the City and neither the full
faith and credit nor the unlimited taxing power of the City shall be pledged as security for
payment of the Bonds.
There are hereby levied Special Taxes upon all taxable real property within the Special
Service Area in accordance with the Special Tax Roll and Repo_ rt (as defined below) sufficient to
pay and discharge the principal of and interest on the Bonds at maturity or mandatory sinking
fund redemption dates and to pay interest on the Bonds for each year at the interest rates set forth
in Section 2.4 of the Indenture and to pay for the estimated Administrative Expenses (as defined
in the Indenture) of the City and Kendall County, if any, for each year including specifically the
following amounts for the following years (the "Special Taxes "):
An Amount Sufficient
Year of Levy to Produce the Sum of:
2007 $1,072,600
2008 1,088,818
2009 1,105,036
2010 1,121,571
2011 1,138,364
2012 1,155,474
2013 1,172,584
2014 1,190,269
2015 1,207,954
2016 1,226,214
2017 1,244,474
2018 1,263,309
2019 1,282,144
2020 1,301,296
2021 1,320,706
2022 1,340,433
2023 1,360,418
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An Amount Sufficient
Year of Levv to Produce the Sum of:
2024 1,380,720
2025 1,401,597
2026 1,422,474
2027 1,443,926
2028 1,465,378
2029 1,487,405
2030 1,509,749
2031 1,532,351
2032 1,555,270
2033 1,578,764
2034 1,602,516
Pursuant to the Special Tax Roll established by the Special Tax Roll and Report prepared
for the Special Service Area (the "Special Tax Roll and Report'), the Special Taxes shall be
computed, extended and collected in accordance with the Special Tax Roll and Report, and
divided among the taxable real property within the Special Service Area in accordance with the
terms of the Establishing Ordinance and the Special Tax Roll and Report. It shall be the duty of
the City and the City hereby covenants, annually on or before the last Tuesday of December for
each of the years 2007 through 2034 to calculate or cause the Consultant appointed pursuant to
the Indenture to calculate the Special Tax Requirement (as defined in the Indenture) for each
Series of Bonds issued pursuant to the Indenture; to amend the Special Tax Roll pursuant to
Section VIII of the Special Tax Roll and Report; to adopt an ordinance approving the amount of
the current calendar year's Special Tax Requirement and to abate the Special Taxes levied
pursuant to this Ordinance to the extent the taxes levied pursuant to this Ordinance exceed the
Special Tax Requirement as calculated by the City pursuant to the Establishing Ordinance and
the Special Tax Roll and Report; and provide the County tax collector of Kendall County the
amended Special Tax Roll. On or before the last Tuesday of January for each of the years 2008
through 2035 the City shall notify the Trustee and the Notice Beneficial Owners (as defined in
the Indenture) of the amount of the Special Tax Requirement for each Series of Bonds issued
pursuant to the Indenture and the amount of the Special Taxes to be abated. The City shall take
all actions which shall be necessary to provide for the levy, extension, collection and application
of the taxes levied by this Ordinance, including enforcement, of such taxes as provided by law
but only as set forth in Section 7(a) below.
The Special Taxes levied as provided above shall be deposited in the Bond and Interest
Fund created pursuant to the Indenture and are appropriated to and are irrevocably pledged to
and shall be used only for the purposes set forth in Section 7.1 of the Indenture.
Section 7. Special Covenants. The City covenants with the holders of the Bonds
from time to time outstanding that it (i) will take all actions which are necessary to be taken (and
avoid any actions which it is necessary to avoid being taken) so that interest on - the Bonds will
not be or become included in gross income for federal income tax purposes under existing law,
including without limitation the Internal Revenue Code of 1986, as amended (the " Code "); (ii)
will take all actions reasonably within its power to take which are necessary to be taken (and
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avoid taking any actions which are reasonably within its power to avoid taking and which are
necessary to avoid) so that the interest on the Bonds will not be or become included in gross
income for federal income tax purposes under the federal income tax laws as in effect from time
to time; and (iii) will take no action or permit any action in the investment of the proceeds of the
Bonds, amounts held under the Indenture or any other funds of the City which would result in
making interest on the Bonds subject to federal income taxes by reason of causing the Bonds to
be "arbitrage bonds" within the meaning of Section 148 of the Code, or direct or permit any
action inconsistent with the regulations under the Code as promulgated and as amended from
time to time and as applicable to the Bonds. The Mayor, City Clerk, City Treasurer and other
Authorized Officers of the City are authorized and directed to take all such actions as are
necessary in order to carry out the issuance and delivery of the Bonds including, without
limitation, to make any representations and certifications they deem proper pertaining to the use
of the proceeds of the Bonds and other moneys held under the Indenture in order to establish that
the Bonds shall not constitute arbitrage bonds as so defined.
The City further covenants with the holders of the Bonds from time to time outstanding
that:
a. it will take all actions, if any, which shall be necessary in order further to
provide for the levy, extension, collection and application of the Special Taxes imposed
by or pursuant to this Ordinance or the Establishing Ordinance, including enforcement of
the Special Taxes by providing the County of Kendall with such information as is
deemed necessary to enable it to include the property subject to the delinquent tax in the
County Collector's annual tax sale and in the event the tax lien is forfeited at such tax
sale by instituting foreclosure proceedings all in the manner provided by law; provided,
however, that the obligation to institute any foreclosure action shall only arise in the
event the City makes the determination that the proceeds from each foreclosure action
have a commercially reasonable expectation of exceeding the costs thereof;
b. it will not take any action which would adversely affect the levy, extension,
collection and application of the Special Taxes, except to abate the Special Taxes to the
extent permitted by the Special Tax Roll and Report and as provided in this Ordinance;
and
c. it will comply with all present and future laws concerning the levy, extension
and collection of the Special Taxes; in each case so that the City shall be able to pay the
principal of and interest on the Bonds as they come due and replenish the Reserve Fund
to the Reserve Requirement and it will take all actions necessary to assure the timely
collection of the Special Taxes, including without limitation, the enforcement of any
delinquent Special Taxes as described in paragraph (a) above.
Section 8. Additional Authoritv. The Mayor, the City Clerk and the other officers of
the City are authorized to execute and deliver on behalf of the City such other documents,
agreements and certificates and to do such other things consistent with the terms of this
Ordinance as such officers and employees shall deem necessary or appropriate in order to
effectuate the intent and purposes of this Ordinance, including without limitation to make any
representations and certifications they deem proper pertaining to the use of the proceeds of the
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Bonds in order to establish that the Bonds shall not constitute arbitrage bonds as defined in
Section 7 above.
Section 9. Filinl? of Ordinance. The City Clerk is directed to file a certified copy of
this Ordinance, and an accurate map of the Special Service Area, with the County Clerk of
Kendall County.
Section 10. Severabilitv. If any section, paragraph, clause or provision of this
Ordinance (including any section, paragraph, clause or provision of any exhibit to this
Ordinance) shall be held invalid, the invalidity of such section, paragraph, clause or provision
shall not affect any of the other sections, paragraphs, clauses or provisions of this Ordinance (or
of any of the exhibits to this Ordinance).
Section 11. Repealer: Effect of Ordinance. All ordinances, resolutions and orders or
parts of ordinances, resolutions and orders in conflict with this Ordinance are repealed to the
extent of such conflict. The City Clerk shall cause this Ordinance to be published in pamphlet
form. This Ordinance shall be effective upon its passage and publication as provided by law.
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PASSED BY THE CITY COUNCIL OF THE UNITED CITY OF YORKVILLE,
KENDALL COUNTY, ILLINOIS this 28` day of March, 2006.
VOTING AYE:
VOTING NAY:
ABSENT:
ABSTAINED:
NOT VOTING:
APPROVED:
Mayor
ATTEST:
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Exhibit A
Legal Description of the Special Service Area
PARCEL 1:
THAT PART OF THE WEST HALF OF SECTION 22, TOWNSHIP 37
NORTH, RANGE 7, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS
FOLLOWS: COMMENCING AT AN EXISTING IRON PIPE STAKE SAID TO BE OVER
THE ORIGINAL LOCATION OF A STONE IN THE CENTER LINE OF THE BRISTOL
AND OSWEGO ROAD, PREVIOUSLY DESCRIBED AS BEING 23.05 CHAINS WEST
AND NORTH 35 DEGREES 30 MINUTES WEST 11.02 CHAINS FROM THE SOUTHEAST
CORNER OF SAID SECTION 22; THENCE NORTH 34. DEGREES 59 MINUTES 00
SECONDS WEST, ALONG A LINE FORMING AN ANGLE OF 93 DEGREES 23 MINUTES
07 SECONDS WITH THE CENTERLINE OF U.S. ROUTE 34, MEASURED FROM
NORTHEAST TO NORTHWEST, 2,054.60 FEET FOR POINT OF BEGINNING; THENCE
SOUTH 52 DEGREES 08 MINUTES 00 SECONDS WEST, 825.40 FEET; THENCE NORTH
38 DEGREES 06 MINUTES 00 SECONDS WEST, 1,803.88 FEET TO THE CENTER LINE
OF KENNEDY ROAD; THENCE NORTHEASTERLY ALONG SAID CENTER LINE,
1,581.49 FEET TO A POINT WHICH IS 350.0 FEET SOUTHWESTERLY OF, AS
MEASURED ALONG SAID CENTER LINE, THE MOST EASTERLY CORNER OF
BRISTOL LAKE SUBDIVISION; THENCE SOUTH 38 DEGREES 15 MINUTES 40
SECONDS EAST, 1,639.93 FEET TO A LINE DRAWN NORTH 52 DEGREES 45 MINUTES
17 SECONDS EAST FROM THE POINT OF BEGINNING; THENCE SOUTH 52 DEGREES
45 MINUTES 17 SECONDS WEST, 750.69 FEET TO THE POINT OF BEGINNING, IN
BRISTOL TOWNSHIP, KENDALL COUNTY, ILLINOIS.
PARCEL 2:
THAT PART OF THE SOUTH HALF OF SECTION 15 AND THAT PART OF
THE NORTH HALF OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF THE
THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE
SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION, AS PER THE PLAT
THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT BOOK 10 AT PAGE 58
ON MAY 10, 1962; THENCE NORTHWESTERLY ALONG THE NORTHEASTERLY LINE
OF SAID SUBDIVISION 1988.0 FEET TO THE NORTHEASTERLY CORNER OF SAID
SUBDIVISION; THENCE NORTHWESTERLY ALONG A LINE MAKING AN ANGLE OF
180 DEGREES 13 MINUTES 25 SECONDS MEASURED COUNTER- CLOCKWISE FROM
THE LAST DESCRIBED COURSE, A DISTANCE OF 895.02 FEET TO AN EXISTING
IRON PIPE STAKE; THENCE EASTERLY ALONG AN OLD FENCE LINE FORMING AN
INTERIOR ANGLE OF 58 DEGREES 15 MINUTES 28 SECONDS WITH THE LAST
DESCRIBED COURSE, A DISTANCE OF 1298.88 FEET (19.68 CHAINS) TO AN IRON
PIPE STAKE HEREWITH PLACED; THENCE SOUTHEASTERLY ALONG AN OLD
ESTABLISHED LINE OF OCCUPATION FORMING AN INTERIOR ANGLE OF 124
DEGREES 23 MINUTES 38 SECONDS WITH THE LAST DESCRIBED COURSE A
DISTANCE OF 2185.47 FEET TO AN EXISTING IRON PIPE STAKE ON THE CENTER
LINE OF KENNEDY ROAD WHICH IS 1213.59 FEET NORTHEASTERLY FROM THE
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POINT OF BEGINNING, AS MEASURED ALONG SAID CENTER LINE; THENCE
SOUTHWESTERLY ALONG SAID CENTER LINE 1213.59 FEET TO THE POINT OF
BEGINNING, IN THE TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS.
PARCEL 3:
THAT PART OF THE NORTH HALF OF SECTION 22, TOWNSHIP 37
NORTH, RANGE 7, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS
FOLLOWS: BEGINNING AT THE SOUTHEASTERLY CORNER OF BRISTOL LAKE
SUBDIVISION AS PER THE PLAT THEREOF FILED FOR RECORD AS DOCUMENT
137733 IN PLAT BOOK 10 AT PAGE 58 ON MAY 10, 1962; THENCE NORTHEASTERLY
ALONG THE CENTER LINE OF KENNEDY ROAD, WHICH MAKES AN ANGLE OF 88
DEGREES 58 MINUTES 47 SECONDS WITH THE NORTHEASTERLY LINE OF SAID
SUBDIVISION, MEASURED CLOCKWISE THEREFROM, A DISTANCE OF 1213.59
FEET; THENCE SOUTHERLY ALONG AN OLD EXISTING, LINE OF OCCUPATION
FORMING AN INTERIOR ANGLE OF 94 DEGREES 54 MINUTES 43 SECONDS WITH
THE LAST DESCRIBED COURSE, A DISTANCE OF 1228.39 FEET; THENCE
SOUTHWESTERLY PARALLEL WITH THE AFORESAID CENTER LINE OF KENNEDY
ROAD, 1348.57; THENCE NORTHWESTERLY ALONG A LINE FORMING AN INTERIOR
ANGLE OF 88 DEGREES 37 MINUTES 37 SECONDS WITH THE LAST DESCRIBED
COURSE A DISTANCE OF 1224.23 FEET TO A POINT ON THE SOUTHEASTERLY LINE
OF SAID BRISTOL LAKE SUBDIVISION WHICH IS 0.46 FEET SOUTHWESTERLY
FROM THE POINT OF BEGINNING; THENCE NORTHEASTERLY ALONG SAID
SOUTHEASTERLY LINE 0.46 FEET TO THE POINT OF BEGINNING, IN THE
TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS (EXCEPTING THEREFROM
THAT LAND CONVEYED TO KENNETH D. DOTY, JR., IN DEED RECORDED AS
DOCUMENT NUMBER R85 -5973, DESCRIBED AS FOLLOWS: THAT PART OF THE
NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF
THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS: BEGINNING AT THE
SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION; THENCE
NORTHEASTERLY ALONG THE CENTER LINE OF KENNEDY ROAD, 299.54 FEET;
THENCE SOUTHEASTERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE,
287.11 FEET; THENCE SOUTHWESTERLY, AT RIGHT ANGLES TO THE LAST
DESCRIBED COURSE, 306.88 FEET TO THE EASTERLY LINE OF A TRACT OF LAND
CONVEYED TO HERBERT L. RUCKS BY A WARRANTY DEED RECORDED AUGUST
1, 1966 IN BOOK 149 ON PAGE 303; THENCE NORTHWESTERLY ALONG SAID
EASTERLY LINE TO A POINT ON SAID CENTER LINE WHICH IS 0.46 FEET
SOUTHWESTERLY OF THE POINT OF BEGINNING; THENCE NORTHEASTERLY
ALONG SAID CENTER LINE, 0.46 FEET TO THE POINT OF BEGINNING, IN BRISTOL
TOWNSHIP, KENDALL COUNTY, ILLINOIS).
PARCEL 4:
THAT PART OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF
THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT
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THE SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION AS PER THE
PLAT THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT BOOK 10 AT
PAGE 58 ON MAY 10, 1962; THENCE NORTHEASTERLY ALONG THE CENTER LINE
OF KENNEDY ROAD WHICH MAKES AN ANGLE OF 88 DEGREES 58 MINUTES 47
SECONDS WITH THE NORTHEASTERLY LINE OF SAID SUBDIVISION, MEASURED
CLOCKWISE THEREFROM, A DISTANCE OF 1213.59 FEET; THENCE SOUTHERLY
ALONG AN OLD EXISTING LINE OF OCCUPATION FORMING AN INTERIOR ANGLE
OF 94 DEGREES 54 MINUTES 43 SECONDS WITH THE LAST DESCRIBED COURSE, A
DISTANCE OF 1228.39 FEET; THENCE SOUTHWESTERLY PARALLEL WITH THE
AFORESAID CENTER LINE OF KENNEDY ROAD, 1364.57 FEET FOR THE POINT OF
BEGINNING; THENCE NORTHEASTERLY ALONG THE LAST DESCRIBED COURSE
1348.57 FEET TO THE PENULTIMATE DESCRIBED POINT; THENCE
SOUTHEASTERLY ALONG A LINE FORMING AN INTERIOR ANGLE OF 94 DEGREES
54 MINUTES 43 SECONDS WITH THE LAST DESCRIBED COURSE, A DISTANCE OF
1402.38 FEET; THENCE SOUTHWESTERLY ALONG A LINE FORMING AN INTERIOR
ANGLE OF 84 DEGREES 52 MINUTES 28 SECONDS WITH THE LAST DESCRIBED
COURSE (BEING A LINE DRAWN PARALLEL WITH THE CENTER LINE OF U.S.
HIGHWAY ROUTE 34) A DISTANCE OF 2301.24 FEET; THENCE NORTHWESTERLY
ALONG A LINE DRAWN NORTH 35 DEGREES 30 MINUTES WEST FROM A POINT ON
THE SOUTHERLY LINE OF SAID SECTION 22 WHICH IS 23.03 CHAINS WEST OF THE
SOUTHEAST CORNER OF SAID SECTION 22 (SAID LINE FORMING AN INTERIOR
ANGLE OF 93 DEGREES 23 MINUTES 07 SECONDS WITH THE LAST DESCRIBED
COURSE) A DISTANCE OF 914.67 FEET; THENCE NORTHEASTERLY ALONG A LINE
FORMING AN INTERIOR ANGLE OF 92 DEGREES 15 MINUTES 44 SECONDS WITH
THE LAST DESCRIBED COURSE 877.73 FEET; THENCE NORTHWESTERLY ALONG A
' LINE FORMING AN INTERIOR ANGLE OF 263 DEGREES 11 MINUTES 34 SECONDS
WITH THE LAST DESCRIBED COURSE, A DISTANCE OF 392.38 TO THE POINT OF
BEGINNING, IN THE TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS.
PARCEL 5:
THAT PART OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF
THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT
THE SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION AS PER THE
PLAT THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT BOOK 10,
PAGE 58 ON MAY 10, 1962; THENCE NORTHEASTERLY ALONG THE CENTER LINE
OF KENNEDY ROAD FORMING AN ANGLE OF 88 DEGREES 58 MINUTES 47
SECONDS WITH THE NORTHEASTERLY LINE OF SAID SUBDIVISION, MEASURED
CLOCKWISE THEREFROM, A DISTANCE OF 1213.59 FEET; THENCE SOUTHERLY
ALONG AN OLD EXISTING LINE OF OCCUPATION FORMING AN INTERIOR ANGLE
OF 94 DEGREES 54 MINUTES 43 SECONDS WITH THE LAST DESCRIBED COURSE,
2630.77 FEET FOR THE POINT OF BEGINNING; THENCE SOUTHEASTERLY ALONG
THE PROLONGATION OF THE LAST DESCRIBED COURSE 1142.51 FEET TO THE
CENTER LINE OF U.S. HIGHWAY ROUTE 34; THENCE SOUTHWESTERLY ALONG
SAID CENTER LINE FORMING AN INTERIOR ANGLE WITH THE LAST DESCRIBED
COURSE OF 84 DEGREES 52 MINUTES 28 SECONDS, 2336.0 FEET TO AN EXISTING
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IRON PIPE STAKE SAID TO BE OVER THE ORIGINAL LOCATION OF A STONE IN THE
CENTER LINE OF THE ORIGINAL BRISTOL AND OSWEGO ROAD PREVIOUSLY
DESCRIBED AS BEING 23.05 CHAINS WEST AND THENCE NORTH 35 DEGREES 30
MINUTES WEST 11.02 CHAINS FROM THE SOUTHEAST CORNER OF SAID SECTION
22; THENCE NORTH 35 DEGREES 30 MINUTES WEST ALONG A LINE FORMING AN
INTERIOR ANGLE OF 93 DEGREES 23 MINUTES 07 SECONDS WITH THE LAST
DESCRIBED COURSE 1139.93 FEET TO A LINE DRAWN SOUTHWESTERLY
PARALLEL WITH SAID CENTER LINE OF SAID ROUTE NO. 34 FROM THE POINT OF
BEGINNING; THENCE NORTHEASTERLY ALONG SAID PARALLEL LINE FORMING
AN INTERIOR ANGLE OF 86 DEGREES 36 MINUTES 53 SECONDS WITH THE LAST
DESCRIBED COURSE 2301.24 FEET TO THE POINT OF BEGINNING, IN THE
TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS.
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL:
THAT PART OF THE SOUTH HALF OF SECTION 22, TOWNSHIP 37
NORTH, RANGE 7, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS
FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF LOT 27, IN BRISTOL
LAKE SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED AS
DOCUMENT 137733 IN PLAT BOOK 10, AT PAGE 58, ON MAY 10, 1962; THENCE
SOUTH 33 DEGREES 58 MINUTES 14 SECONDS EAST 33.00 FEET TO THE
CENTERLINE OF KENNEDY ROAD; THENCE NORTH 55 DEGREES 00 MINUTES 21
SECONDS EAST 299.54 FEET AS MEASURED ALONG SAID CENTERLINE; THENCE
SOUTH 34 DEGREES 59 MINUTES 39 SECONDS EAST 287.11 FEET; - THENCE SOUTH
55 DEGREES 00 MINUTES 21 SECONDS WEST 306.92 FEET; THENCE SOUTH 33
j DEGREES 37 MINUTES 35 SECONDS EAST 1,329.42 FEET; THENCE SOUTH 47
DEGREES 27 MINUTES 46 SECONDS EAST 1,247.97 FEET TO THE POINT OF
BEGINNING; THENCE SOUTH 34 DEGREES 46 MINUTES 42 SECONDS EAST 65.00
FEET; THENCE SOUTH 27 DEGREES 32 MINUTES 48 SECONDS EAST 238.32 FEET;
THENCE SOUTH 34 DEGREES 46 MINUTES 42 SECONDS EAST 588.35 FEET TO THE
NORTHERLY RIGHT OF WAY LINE OF U.S. ROUTE 34 PER GRANT DATED APRIL 13,
1923 AND RECORDED APRIL 18, 1923 IN BOOK 76, PAGE 82, AND BY GRANT DATED
APRIL 7, 1923 AND RECORDED APRIL 18, 1923 IN DEED RECORDED IN BOOK 76,
PAGE 30; THENCE SOUTH 55 DEGREES 12 MINUTES 58 SECONDS WEST 997.93 FEET
AS MEASURED ALONG SAID RIGHT OF WAY LINE; THENCE NORTH 38 DEGREES 09
MINUTES 48 SECONDS WEST 891.55 FEET; THENCE NORTH 55 DEGREES 13
MINUTES 34 SECONDS EAST 1,080.56 FEET TO THE POINT OF BEGINNING, ALL IN
KENDALL COUNTY, ILLINOIS.
PINS:
Parcel 1: 02 -22 -176 -004
Parcel 2: 02 -22- 127 -001 and 02 -15- 376 -001
Parcel 3: 02 -22- 251 -002
Parcel 4: 02 -22- 251 -002
Parcel 5: 02 -22- 400 -001
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CHI2_603856.4
Exhibit B
Indenture4
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CHI2 603856.4
Exhibit B
Indenture
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CH12 603856.3
i
TRUSTINDENTURE
Between
UNITED CITY OF YORKVILLE, ILLINOIS
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
I
Dated as of , 2006
S
UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS
SPECIAL SERVICE AREA NUMBER 2005 -108
SPECIAL TAX BONDS, SERIES 2006
(AUTUMN CREEK PROJECT)
CHIC 1308968.4
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TABLE OF CONTENTS
Page
ARTICLE I STATUTORY AUTHORITY AND DEFINITIONS .................... ..............................3
Section 1.1 Authoritv for this Indenture ........................................... ..............................3
Section 1.2 Agreement for Benefit of Owners of the Bonds ............ ..............................3
Section1.3 Definitions ...................................................................... ..............................3
ARTICLE II BOND DETAILS ........................................................................ .............................10
Section 2.1 Pumose of Issuance: Amount of Bonds ........................ .............................10
Section 2.2 Form: Denominations: Numbers .................................. ..............................1 l
Section 2.3 Date of Bonds: CUSIP Identification Numbers ........... ..............................1 l
Section 2.4 Maturities: Interest Rates .............................................. .............................11
Section2.5 Interest .......................................................................... .............................11
Section 2.6 Form of Bonds: Execution: Authentication .................. .............................12
Section 2.7 Pavment of the Bonds ................................................... .............................12
Section 2.8 Anuointment of Trustee ................................................ .............................12
Section 2.9 Registration of Bonds: Persons Treated as Owners ...... .............................12
Section 2.10 Global Form: Securities Devository ............................. .............................13
ARTICLE III ADDITIONAL BONDS ............................................................ .............................14
Section 3.1 Authority to Issue Additional Bonds ............................ .............................14
ARTICLE IV REDEMPTION OF SERIES 2006 BONDS... . ............................... .................15
Section 4.1 Mandatory Sinking Fund Redemption .......................... .............................15
Section 4.2 Optional Redemption .................................................... .............................15
Section 4.3 Mandatory Redemption Upon Condemnation, Completion Date and
Changein Densitv ......................................................... .............................16
Section 4.4 Special Mandatory Redemption from Optional Prepavment of Special
Taxes ............................................................................. .............................17
Section 4.5 Redemption Provisions: Notice of Redemption ........... .............................17
Section 4.6 Purchase in Lieu of Redemption ................................... .............................18
ARTICLE V APPLICATION OF PROCEEDS ............................................... .............................18
Section 5.1 A of Proceeds ................................................ .............................18
ARTICLE VI SECURITY FOR THE BONDS ................................................ .............................19
Section 6.1 Limited Obligations ...................................................... .............................19
Section 6.2 Levv of Special Tax ...................................................... .............................19
ARTICLEVII FUNDS AND ACCOUNTS ..................................................... .............................21
Section 7.1 Bond and Interest Fund ................................................. .............................21
Section 7.2 Reserve Fund ................................................................ .............................23
Section 7.3 Improvement Fund ........................................................ .............................23
Section 7.4 Administrative Expense Fund .......................... ..........24
. ...............................
Section7.5 Rebate Fund .................................................................. .............................24
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CHIC 1308968.4
Section7.6 Investment of Funds ...................................................... .............................25
ARTICLE VIII COVENANTS AND AGREEMENTS OF THE CITY .......... .............................25
Section8.1 Tax Covenants .............................................................. .............................25
Section 8.2 Levy and Collection of Taxes ....................................... .............................26
Section 8.3 Prover Books and Records ............................................ .............................27
Section 8.4 Against Encumbrances .................................................. .............................27
Section 8.5 No Continuing Disclosure Undertaking ........................ .............................27
Section 8.6 Additional Information ................................................. .............................28
Section 8.7 Public Infrastructure Agreement ................................... .............................28
ARTICLE IX DEFAULTS AND REMEDIES ................................................ .............................28
Section 9.1 Events of Default .......................................................... .............................28
Section9.2 Remedies ....................................................................... .............................29
Section 9.3 Notice of Default ........................................................... .............................29
Section 9.4 Termination of Proceedings by Trustee ........................ .............................30
Section 9.5 Right of Bondholders to Control Proceedings .............. .............................30
Section 9.6 Right of Bondholders to Institute Suit .......................... .............................30
Section 9.7 Suits by Trustee ............................................................. .............................30
Section 9.8 Remedies Cumulative ................................................... .............................31
Section 9.9 Waiver of Default ......................................................... .............................31
Section 9.10 ADnlication of Moneys After Default ........................... .............................31
ARTICLE X TRUSTEE ................................................................................... .............................32
Section 10.1 Appointment of the Trustee .......................................... .............................32
Section 10.2 Performance of Duties .................................................. .............................32
Section 10.3 Instruments Upon Which Trustee May Rely . ............................................ 33
Section 10.4 Trustee not Resnonsible for Recitals and Other Matters ...........................34
Section 10.5 Trustee May Acquire Bonds ......................................... .............................34
Section 10.6 Oualification of Trustee ................................................ .............................34
Section 10.7 Resignation or Removal of Trustee and Appointment of Successor . ........ 35
Section 10.8 Concerning the Successor Trustee ................................ .............................36
Section 10.9 Monthly Statements ...................:.................................. .............................36
ARTICLE XI SUPPLEMENTAL INDENTURES .......................................... .............................37
Section 11.1 SuDBlemental Indentures Not Requiring Consent of Bondholders ............ 37
Section 11.2 SuDBlemental Indentures Requiring Consent of Bondholders ................... 38
Section 11.3 Suvvlemental Indenture to Modify this Indenture ........ .............................39
Section 11.4 Trustee May Rely Upon Opinion of Counsel Re: SuDBlemental Indenture.39
Section11.5 Notation ......................................................................... .............................39
Section 11.6 Opinion of Bond Counsel. ...39
ARTICLE XII DEFEASANCE ........................................................................ .............................40
Section12.1 Defeasance ......................:............................................. .............................40
ARTICLE XIII MISCELLANEOUS ............................. .............................41
Section 13.1 Severabilitv ................................................................... .............................41
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CHIC_1308968.4
Section13.2 Notices .......................................................................... .............................42
Section13.3 Holidays ........................................................................ .............................42
Section 13.4 Execution of Counterparts ............................................ .............................43
Section 13.5 ADWicable Law ............................................................. .............................43
Section 13.6 Immunity of Officers. EmDlovees. Elected Officials of City .................... 43
EXHIBITS
Exhibit A Legal Description of Special Service Area
Exhibit B Form of Bond
Exhibit C Form of Satisfaction of Tax Lien
Exhibit D Form of Disbursement Request
Exhibit E Form of Continuing Disclosure Agreement
CHIC 1308968.4
TRUST INDENTURE
THIS TRUST INDENTURE (the "Indenture ") is made and entered into as of
, 2006, by and between the United City of Yorkville, Kendall County, Illinois, a
municipal corporation organized and existing under and by virtue of the Constitution and laws of
the State of Illinois (the "City "), and The Bank of New York Trust Company, N.A., a national
banking association, as Trustee (the " Trustee ").
WITNESSETH:
WHEREAS, by Ordinance No. 2006- adopted on , 2006 (the
"Establishing Ordinance ") the City has established the "United City of Yorkville Special Service
Area Number 2005 -108" as further described in Exhibit A to this Indenture (the "Special Service
Area "); and
WHEREAS, pursuant to Ordinance No. 2006- adopted on , 2006
(the `Bond Ordinance ") and pursuant to the Special Service Area Tax Law, 35 ILCS 200/27 -5 et
seq. (the "Special Service Area Act ") it was determined in the best interests of the City to issue
not to exceed $ aggregate principal amount of the United City of Yorkville
Special Service Area Number 2005 -108 Special Tax Bonds, Series 2006 (Autumn Creek Project)
(the " Bonds ") for the purpose of providing a portion of the funds needed for costs of the Special
Services (defined below); and
WHEREAS, the Bond Ordinance authorized the Mayor and City Clerk to establish
certain specific terms of the Bonds by executing and delivering a Bond Purchase Agreement with
the Purchaser (defined below); and
WHEREAS, pursuant to the terms so established the City will issue $
aggregate principal amount of Bonds upon the terms specified in this Indenture; and
WHEREAS, it is in the public interest and for the benefit of the City, the Special Service
Area and the owners of the Bonds that the City enter into this Indenture to provide for the
issuance of the Bonds, the disbursement of proceeds of the Bonds, the deposit of the special
taxes levied pursuant to the Bond Ordinance securing the Bonds, and the administration and
payment of the Bonds; and
WHEREAS, all things necessary to cause the Bonds, when executed by the City and
issued as provided in the Special Service Area Act, the Local Government Debt Reform Act (as
defined below), the Bond Ordinance and this Indenture, to be legal, valid and binding and special
obligations of the City in accordance with their terms, and all things necessary to cause the
creation, authorization, execution and delivery of this Indenture and the creation, authorization,
execution and issuance of the Bonds, subject to the terms of this Indenture, have in all respects
been duly authorized;
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CHIC 1308968.4
NOW, THEREFORE, THIS TRUST INDENTURE WITNESSETH:
GRANTING CLAUSES
That the City in consideration of the premises, the acceptance by the Trustee of the trusts
created hereby and the purchase and acceptance of the Bonds by the owners thereof, and of the
sum of one dollar, lawful money of the United States of America, to it duly paid by the Trustee
at or before the execution and delivery of these presents, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, in order to secure
the payment of the principal of, premium, if any, and interest on the Bonds according to their
tenor and effect, and to secure the performance and observance by the City of all the covenants
expressed or implied herein and in the Bonds, does hereby pledge and assign, and grant a
security interest in, the following (the "Trust Estate ") to The Bank of New York Trust Company,
N.A., as Trustee, and its successors in trust and assigns forever, for the securing of the
performance of the obligations of the City hereinafter set forth;
GRANTING CLAUSE FIRST
All right, title and interest of the City in and to the Special Taxes and any monies held
under this Indenture by the Trustee, including the proceeds of the Bonds and the interest, profits
and other income derived from the investment thereof other than amounts held by the Trustee in
the Administrative Expense Fund and the Rebate Fund;
GRANTING CLAUSE SECOND
All funds, monies, property and security and any and all other rights and interests in
property whether tangible or intangible from time to time hereafter by delivery or by writing of
any kind, conveyed, mortgaged, pledged, assigned or transferred as and for additional security
hereunder for the Bonds by the City or by anyone on its behalf or with its written consent to the
Trustee, which is hereby authorized to receive any and all such property at any and all times and
to hold and apply the same subject to the terms hereof;
TO HAVE AND TO HOLD, all and singular the Trust Estate, whether now owned or
hereafter acquired, unto the Trustee and its respective successors in said trust and assigns
forever;
IN TRUST NEVERTHELESS, upon the terms and trust herein set forth for the equal
and proportionate benefit, security and protection of all present and future owners of the Bonds
from time to time issued under and secured by this Indenture without privilege, priority or
distinction as to the lien or otherwise of any of the Bonds over any of the other Bonds (except as
otherwise provided herein);
PROVIDED, HOWEVER, that if the City, its successors or assigns, shall pay, or cause
to be paid, the principal of, premium, if any, and interest on the Bonds due or to become due
thereon, at the tunes and in the manner mentioned in the Bonds according to the true intent and
meaning thereof, and shall cause the payments to be made on the Bonds as required under this
Indenture, or shall provide, as permitted hereby, for the payment thereof by depositing with the
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CHIC_1308968.4
Trustee the entire amount due or to become due thereon and shall cause to be kept, performed
and observed all of its covenants and conditions pursuant to the terms of this Indenture, and shall
pay or cause to be paid all sums of money due or to become due in accordance with the terms
and provisions hereof, then upon the final payment thereof, this Indenture and the rights hereby
granted shall cease, determine and be void; otherwise this Indenture is to be and remain in full
force and effect.
THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be issued, authenticated and
delivered and all said property, rights and interests, and amounts hereby assigned and pledged
are to be dealt with and disposed of under, upon and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes as herein expressed, and the City has agreed
and covenanted, and does hereby agree and covenant with the Trustee and with the respective
owners of the Bonds as follows:
ARTICLE I
STATUTORY AUTHORITY AND DEFINITIONS
Section 1.1 Authoritv for this Indenture. This Indenture is entered into pursuant to the
powers of the City pursuant to Part 6 of Section 7 of Article VII of the 1970 Constitution of the
State of Illinois and pursuant to the respective provisions of the Special Service Area Act, the
i Local Government Debt Reform Act and the Bond Ordinance.
Section 1.2 Asrreement for Benefit of Owners of the Bonds. The provisions,
covenants and agreements to be performed by or on behalf of the City under this Indenture shall
be for the equal benefit, protection and security of the Bondholders except as otherwise expressly
provided herein. All of the Bonds, without regard to the time or times of their issuance or
maturity, shall be of equal rank without preference, priority or distinction of any of the Bonds
over any other of the Bonds, except as expressly provided in or permitted by this Indenture. The
Trustee may become the owner of any of the Bonds in its own or any other capacity with the
same rights it would have if it were not the Trustee.
Section 1.3 Definitions. Unless the context otherwise requires, the terms defined in
this Section 1.3 shall, for all purposes of the Indenture, of any Supplemental Indenture, and of
any certificate, opinion or other document mentioned in this Indenture, have the meanings
specified below. All references in this Indenture 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 of this Indenture.
"Administrative Expenses" means the following actual or reasonably estimated costs
permitted in accordance with the Special Service Area Act and directly related to the
administration of the Special Service Area and the Bonds as determined by the City or the
Consultant on its behalf: the costs of computing the Special Taxes and of preparing the annual
Special Tax collection schedules and the amended Special Tax Roll; the costs of collecting the
Special Tax (whether by the City, the County or otherwise), the costs of remitting the Special
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CHIC_1308968.4
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Tax to the Trustee; the costs of the Trustee and any fiscal agent (including its legal counsel) in
the discharge of the duties required of it under this Indenture or any trustee or fiscal agent
agreement; the costs of the Rebate Consultant; the costs of the City or its designee in complying
with disclosure requirements of applicable federal and state securities laws and of the Special
Service Area Act, including, but not limited to, public inquiries regarding the Special Tax; the
costs of applying for and maintaining ratings on the Bonds, the costs associated with the release
of funds from any escrow account; any termination payments owed by the City in connection
with any guaranteed investment contract, forward purchase agreement or other investment of
funds held under this Indenture; and amounts advanced by the City for any other administrative
purposes of the Special Service Area, including the costs of computing Special Tax prepayment
amounts, recordings related to the prepayment, discharge or satisfaction of Special Taxes; the
administrative costs associated with upgrading the software utilized by Kendall County relating
to the Special Tax, the costs of commencing foreclosure and pursuing collection of delinquent
Special Taxes and the reasonable fees of legal counsel of the City or the Trustee incurred in
connection with the foregoing.
"Administrative Exnense Fund" means the fund by that name established pursuant to
Section 7.4 of this Indenture.
"Administrative Services Agreement" means the Agreement For Administrative Services
between the City and the Consultant with respect to the Special Service Area and the Bonds.
"Authorized Denomination" means (i) initially denominations of $100,000 and integral
multiples of $1,000 in excess thereof and (ii) denominations of $5,000 and integral multiples of
$1,000 in excess thereof from and after such time as the conditions set forth in Section 2.2 of this
Indenture have been complied with for the conversion of the Authorized Denominations of
Bonds to minim denominations of $5,000 and integral multiples of $1,000 in excess thereof.
- - "Authorized Newsnaner" means a financial newspaper of general circulation in the
Borough of Manhattan, City and State of New York (including, at such times as they are
published, The New York Times. The Wall Street Journal and The Bond Buver) which is
customarily published at least once a day for at least five (5) days (other than legal holidays) in
each calendar week, printed in the English language.
"Authorized Officer" means the Mayor, the City Clerk, the City Treasurer or any other
officer designated as such pursuant to a certificate of the Mayor delivered to the Trustee.
"Beneficial Owner" means, when the Bonds are in a book -entry system, any person who
acquires a beneficial ownership interest in a Bond held by DTC. For purposes of the Sections of
this Indenture requiring notice to or communications with Beneficial Owners (including, without
limitation, Section 10.9) the Trustee, the Bond Registrar and the City shall be entitled to treat as
Beneficial Owners only such persons or entities that provide notice of their beneficial ownership
of the Bonds in writing to the Trustee and the City at least three Business Days prior to the date
upon which any notice or communication must be given by the Trustee, the Bond Registrar or
the City under this Indenture. Such notice shall be in such form together with evidence of
beneficial ownership satisfactory to the Trustee, the Bond Registrar and the City and shall
include the name of the Beneficial Owner, the address of the Beneficial Owner (which shall also
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CHIC 1308968.4
include a delivery address if a post office box is given) and the principal amount of Bonds in
which the Beneficial Owner has a beneficial ownership interest. The Trustee, the Bond Registrar
and the City may rely on any notice so given until such time as it is revoked or amended by
subsequent written notice to the Trustee and the City. The Beneficial Owners of the Bonds are
acknowledged to be the Notice Beneficial Owners until the Trustee, the Bond Registrar and the
City are notified to the contrary.
"Bond and Interest Fund" means the fund by that name established pursuant to
Section 7.1 of this Indenture.
"Bond Registrar" means The Bank of New York Trust Company, N.A. and its successors
or assigns.
"Bondholder", Holder or Owner " means the person in whose name such Bond is
registered in the bond register maintained by the Bond Registrar.
" Bonds " means the City's Special Service Area Number 2005 -108 Special Tax Bonds,
Series 2006 (Autumn Creek Project) in the aggregate principal amount of $
"Business Dav" means a day on which banks in Chicago, Illinois, and New York, New
York are open to transact business.
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"Capitalized Interest Account" means the account by that name established pursuant to
Section 7.1 of this Indenture.
"Capitalized Interest Credit" shall have the meaning given that term in Exhibit B of the
Special Tax Roll and Report.
"City" means the United City of Yorkville, Kendall County, Illinois.
" Code " means the Internal Revenue Code of 1986, as amended.
"Completion Date" has the meaning set forth in Section 7.3 of this Indenture.
"Consultant" means David Taussig & Associates, Inc. and its successors and assigns or
any other firm selected by the City to assist it in administering the Special Service Area and the
extension and collection of Special Taxes pursuant to the Special Tax Roll and Report.
"Comorate Authorities" means the Mayor and City Council of the City.
"Costs of Issuance Account" means the account by that name established pursuant to
Section 7.3 of this Indenture.
"County" means Kendall County, Illinois.
"Defeasance Securities" means any bond or other obligations which, as to both principal
and interest, constitute direct obligations of, or the timely payment of which are unconditionally
guaranteed by, the United States of America, and any certificates or any other evidences of an
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CHIC_1308968.4
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ownership interest in obligations or in specified portions thereof (which may consist of specified
portions of the interest thereon) of the character described in this definition.
"Depository Participant" shall have the meaning given that term in Section 2.10 of this
Indenture.
"Developer" means Pulte Homes, Inc., a Michigan corporation, as well as its respective
successors and assigns.
"Disbursement Reauest" means a request from the City signed by an Authorized Officer
requesting a disbursement of amounts held in the Improvement Fund.
" means The Depository Trust Company, New York, New York.
"Establishine Ordinance" means Ordinance Number 2006- adopted on February 14,
2006 by the Corporate Authorities.
"Event of Default" shall have the meaning given that term in Section 9.1 of this
Indenture.
"Foreclosure Proceeds" means the proceeds of any redemption or sale of property in the
Special Service Area sold as the result of a foreclosure action of the lien of the Special Taxes.
"Government Securities" means bonds, notes, certificates of indebtedness, treasury bills
or other securities constituting direct obligations of the United States of America and all
securities and obligations, the prompt payment of principal of and interest on which is
guaranteed by a pledge of the full faith and credit of the United States of America.
"Improvement Fund" means the fund by that name established pursuant to Section 7.3 of
this Indenture.
"Indenture" means this Trust Indenture dated as of March 1, 2006 between the City and
the Trustee, as amended and supplemented from time to time.
"Indirect Participant" shall have the meaning given that term in Section 2.10 of this
Indenture.
"Interest Pavment Date" means, with respect to the Bonds, March 1 and September 1 of
each year, commencing on September 1, 2006.
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"Letter of Representations" means the Blanket Issuer Letter of Representations dated
from the City to DTC, as amended from time to time.
"Limited Offerina Memorandum" means the Limited Offering Memorandum dated
March _, 2006 relating to the Bonds.
"Local Government Debt Reform Act" means the Local Government Debt Reform Act,
30 ILCS §350/1 et seq., as amended.
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CHIC_1308968.4
"Maximum Parcel Special Tax" shall have the meaning given that term in the Special
Tax Roll and Report.
"Notice Beneficial Owners" means any Beneficial Owners of the Bonds owning
$500,000 or more aggregate principal amount of the Bonds who has given notice to the Trustee
that it is a Notice Beneficial Owner.
" Parcel " shall have the meaning given that term in the Special Tax Roll and Report.
" Penalty " shall have the meaning given that term in Section 8.1(c) of this Indenture.
"Public Infrastructure Agreement" means the Public Infrastructure Agreement for Special
Service Area Number 2005 -108 (Autumn Creek Project) dated as of between
the Developer and the City.
"Purchase Contract" means the Bond Purchase Agreement `dated 2006
among the Purchaser, the City and the Developer.
"Purchaser" means William Blair & Company, L.L.C.
"Oualified Investments" means, to the extent permitted by then applicable Illinois law,
the following:
(a) Government Securities;
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(b) bonds, notes, debentures, or other similar obligations of the United States j
of America or its agencies, including (i) federal land banks, federal intermediate credit
banks, banks for cooperative, federal farm credit banks, or any other entity authorized to
issue debt obligations under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.); (ii) the
federal home loan banks and the federal home loan mortgage corporation; and (iii). any
other agency created by Act of Congress;
(c) interest bearing obligations of any county, township, city, City,
incorporated town, municipal corporation or school district, which obligations are
registered in the name of the City or held under a custodial agreement at a bank, if such
obligations at the time of purchase are in one of the two highest general classifications
established by a rating service of nationally recognized expertise in rating bonds of states
and their political subdivisions;
(d) interest bearing certificates of deposit, interest bearing savings accounts,
interest bearing time deposits, or other investments constituting direct obligations of any
bank as defined by the Illinois Banking Act which are insured by the Federal Deposit
Insurance Corporation;
(e) repurchase agreements of government securities which are subject to the
Government Securities Act of 1986. The government securities, unless registered or
inscribed in the name of the City, shall be purchased through banks or trust companies
authorized to do business in the State of Illinois;
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(f) repurchase agreements (other than those described in clause (e) of the
definition of "Oualified Investments ") meeting the following requirements:
(i) the securities, unless registered or inscribed in the name of the
City, are purchased through banks or trust companies authorized to do business in
the State of Illinois;
(ii) an Authorized Officer after ascertaining which firm will give the
most favorable rate of interest, directs the custodial bank to "purchase "' specified
securities from a designated institution. The "custodial bank" is the bank or trust
company, or agency of government, which acts for the City in connection with
repurchase agreements involving the investment of funds by the City. The State
Treasurer may act as custodial bank for the City;
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(iii) a custodial bank must be a member bank of the Federal Reserve
System or maintain accounts with member banks. All transfers of book -entry
securities must be accomplished on a Reserve Bank's computer records through a
member bank of the Federal Reserve System. These securities must be credited to
the City on the records of the custodial bank and the transaction must be
confirmed in writing to the City by the custodial bank;
(iv) trading partners shall be limited to banks or trust companies
authorized to do business in the State of Illinois or to registered primary reporting
dealers;
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(v) the security interest must be perfected;
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(vi) the City must enter into a written master repurchase agreement
which outlines the basic responsibilities and liabilities of both buyer and seller;
(vii) the repurchase agreement shall be for periods of 330 days or less;
(viii) the Authorized Officer must inform the custodial bank in writing
of the maturity details of the repurchase agreement;
(ix) the custodial bank must take delivery of and maintain the securities
in its custody for the account of the City and confirm the transaction in writing to
the City. The custodial undertaking shall provide that the custodian takes
possession of the securities exclusively for the City; that the securities are free of
any claims against the trading partner; and any claims by the custodian are
subordinate to the City's claims to rights to those securities;
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(x) the obligations purchased by the City may only be sold or
presented for redemption or payment by the fiscal agent bank or trust company
holding the obligations upon the written instruction of the City or Authorized
Officer; and
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CHIC 1308968.4
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(xi) the custodial bank shall be liable to the City for any monetary loss
suffered by the City due to the failure of the custodial bank to take and maintain
possession of such securities;
(g) short-term obligations of corporations organized in the United States with
assets exceeding $500,000,000 if (i) such obligations are rated at the time of purchase in
one of the three highest rating categories by at least two standard rating services and
which mature not later than 180 days from the date of purchase, (ii) such purchases do
not exceed 10% of the corporation's outstanding obligations and (iii) no more than one-
third of the City's funds are invested in short -term obligations of such corporation as
evidenced by a certificate from an Authorized Officer; and
(h) money market mutual funds registered under the Investment Company Act
of 1940 as amended invested solely in obligations listed in paragraph (a) and (b) above,
including any mutual fund from which the Trustee or any of its affiliates may receive
compensation, and in agreements to repurchase such obligations;
together with such other investments as shall from time to time be lawful for the investment of
City funds and shall be approved by the holders of fifty -one percent (51 %) of aggregate principal
amount of Bonds outstanding.
"Rebate Consultant" means an entity selected by the City expert in the calculation of
rebate amounts pursuant to Section 148 of the Internal Revenue Code of 1986, as amended. If at
any time the Rebate Consultant resigns or is removed, and the City shall not have appointed a j
successor within 30 days, the Rebate Consultant shall be an entity selected by the Trustee.
"Rebate Fund" means the fund by that name established pursuant to Section 7.5 of this
Indenture.
"Rebate Requirement" shall have the meaning given that term in Section 8.1(b) of this
Indenture.
"Record Date" means the fifteenth day of the month preceding an Interest Payment Date.
"Reserve Fund" means the fund by that name created pursuant to Section 7.2 of this
Indenture.
"Reserve Fund Credit" shall have the meaning given that term in Section A of Exhibit B
to the Special Tax Roll and Report as certified by the Consultant to the Trustee.
"Reserve Reauirement" shall have the meaning given that term in Section 7.2 of this
Indenture.
" Special - Redemption Account" means the account by that name established pursuant to
Section 7.1 of this Indenture.
" Special Service Area" means United City of Yorkville Special Service Area Number
2005 -108, described more fully in Exhibit A to this Indenture.
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CHIC 1308968.4
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"Snecial Service Area Act" means the Special Service Area Tax Law, 35 ILCS §200/27 -5
et seq., as amended.
"Snecial Services" means the improvements benefiting the Special Service Area
consisting of engineering, soil testing and appurtenant work, mass grading and demolition, storm
water management facilities, storm drainage systems and storm sewers, site clearing and tree
removal, public water facilities, sanitary sewer facilities, erosion control measures, roads, streets,
curbs, gutters, street lighting, traffic controls, sidewalks, bicycle paths and related street
improvements, park improvements and equipment and materials necessary for the maintenance
thereof, landscaping, wetland mitigation and tree installation, costs for land and easement
acquisitions relating to any of the foregoing improvements, required tap -on and related fees for
water or sanitary sewer services and other eligible costs.
"Snecial Tax" or "Snecial Taxes" means the taxes levied by the City on all taxable real
property within the Special Service Area pursuant to the Special Tax Roll and this Indenture.
"Snecial Tax Reauirement" means the "Special Tax Requirement" as defined in
Section II of the Special Tax Roll and Report, provided that credit may be given for any amounts
on deposit in the Funds and Accounts created by this Indenture and available to pay the Special
Tax Requirement as such Special Tax Requirement is calculated by the City or the Consultant
pursuant to Section 6.2(b) hereof.
"Snecial Tax Roll" means the special tax roll for the payment of the Bonds established
and amended from time to time pursuant to the Special Tax Roll and Report.
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"Snecial Tax Roll and Report" means the United City of Yorkville Special Service Area
Number 2005 -108 Special Tax Roll and Report dated February 7, 2006, including all exhibits
attached thereto, prepared by the Consultant.
"Supplemental Indenture" means an indenture adopted by the Corporate Authorities of
the City as provided in Article XI hereof which amends or supplements this Indenture.
"Tax Agreement" or "Tax Agreements" means the Tax Compliance Certificate and
Agreement of the City dated the date of issuance and delivery of the Bonds, as amended from
time to time.
" Trustee " means The Bank of New York Trust Company, N.A., Chicago, Illinois and its
successors and assigns.
ARTICLE II
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BOND DETAILS
Section 2.1 Pumose of Issuance: Amount of Bonds. The sum of $
shall be borrowed by the City pursuant to the Special Service Area Act and the Local
Government Debt Reform Act for the purpose of funding a portion of the costs of the Special
Services, including the costs of the City in connection with the issuance of the Bonds, deposits to
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CHIC 1308968.4
the Reserve Fund and the Administrative Expense Fund and interest on the Bonds through March
1, 2008. In evidence of such borrowing, Bonds in the aggregate principal amount of
$ shall be issued as provided in this Indenture. The total principal amount of
Bonds that may be issued pursuant to this Indenture is $
Section 2.2 Form: Denominations. Numbers. The Bonds shall be issued only in fully
registered form without coupons initially in the denominations of $100,000 and integral
multiples of $1,000 in excess of that sum. At such time as the Developer certifies in writing to
the City and the Trustee that not less than a combined total of 519 dwelling units to be built
within the Special Service Area as set forth in the final plat of subdivision for the Area have been
sold and conveyed to homeowners, the Authorized Denominations of the Bonds may be
converted to, and if the Bonds are not registered in a book entry system, Bonds may be
exchanged for new Bonds of the same aggregate principal amount and maturity in minimum
denominations of $5,000 and integral multiples of $1,000 in excess thereof. Prior to any such
conversion or exchange the City shall have executed a Continuing Disclosure Agreement
substantially in the form of Exhibit E hereto with such changes thereto as are deemed necessary
by the City and its counsel in order to comply with federal securities laws including Rule 15c2-
12 promulgated by the Securities and Exchange Commission as in effect on the date of such
conversion or exchange or any successor thereto. The Bonds shall be designated "Special
Service Area Number 2005 -108 Special Tax Bonds, Series 2006 (Autumn Creek Project)" and
shall be numbered consecutively from R -1 upward but need not be authenticated or delivered in
consecutive order.
Section 2.3 Date of Bonds: CUSIP Identification Numbers. The Bonds shall be dated
as of the date of delivery of the Bonds to the Purchaser upon original issuance. CUSIP
j identification numbers shall be imprinted on the Bonds, provided that any failure on the part of
the City or the Trustee to use such CUSIP numbers in any notice to any Bondholders shall not
constitute an event of default or any violation of the City's contract with such Bondholders and
shall not impair the effectiveness of such notice.
Section 2.4 Maturities: Interest Rates.The Bonds shall mature and become payable on
March 1 in the years and in the amounts and shall bear interest at the rates set forth below:
Year Amount Interest Rate
2036 $ %
Section 2.5 Interest The Bonds shall bear interest at the rate set forth in Section 2.4
payable on the Interest Payment Dates in each year with the first Interest Payment Date being
September 1, 2006. Interest on the Bonds shall be calculated on the basis of a 360 -day year
composed of twelve 30 -day months. Each Bond shall bear interest from the Interest Payment
Date next preceding the date of authentication of such Bond unless (i) it is authenticated on an
Interest Payment Date, in which event it shall bear interest from such date of authentication, or
(ii) it is authenticated prior to an Interest Payment Date and after the close of business on the
Record Date preceding such Interest Payment Date, in which event it shall bear interest from
such Interest Payment Date, or (iii) it is authenticated prior to the Record Date preceding the first
Interest Payment Date, in which event it shall bear interest from its dated date; provided,
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CHIC 1308968.4
however, that if at the time of authentication of a Bond, interest is in default on such Bond, such
Bond shall bear interest from the Interest Payment Date to which interest had previously been
paid or made available for payment on such Bond.
Section 2.6 Form of Bonds: Execution; Authentication. The Bonds shall be in
substantially the form set forth in Exhibit B to this Indenture. Each Bond shall be executed by
the manual or facsimile signature of the Mayor and the manual or facsimile signature of the City
Clerk and shall have the corporate seal of the City affixed to it (or a facsimile of that seal printed
on it). The Mayor and the City Clerk (if they have not already done so) are authorized and
directed to file with the Illinois Secretary of State their manual signatures certified by them
pursuant to the Uniform Facsimile Signatures of Public Officials Act, as amended, which shall
authorize the use of their facsimile signatures to execute the Bonds. Each Bond so executed
shall be as effective as if manually executed. In case any officer of the City whose signature or a
facsimile of whose signature shall appear on the Bonds shall cease to be such officer before
authentication and delivery of any of the Bonds, that signature or facsimile signature shall
nevertheless be valid and sufficient for all purposes, the same as if the` officer had remained in
office until delivery.
No Bond shall be valid for any purpose unless and until a certificate of authentication on
that Bond substantially in the form set forth in the bond form in Exhibit B to this Indenture shall
have been duly executed by the Trustee appointed by this Indenture as authenticating agent of
the City. Execution of that certificate upon any Bond shall be conclusive evidence that the Bond
has been authenticated and delivered under this Indenture.
Section 2.7 Pavment of the Bonds. The Bonds shall be payable in lawful money of
the United States at the office of the Trustee. The principal of each Bond shall be payable at
maturity upon presentment of the Bond at the office of the Trustee. Interest on each Bond shall
be payable on each Interest Payment Date by check or draft of the Trustee mailed to the person
in whose name that Bond is registered on the books of the Bond Registrar at the close of business
on the Record Date. During such time as the Bonds are registered so as to participate in a
securities depository system with DTC, principal of and interest and redemption premium on
each Bond shall be payable by wire transfer pursuant to instructions from DTC.
Section 2.8 Avnointment of Trustee. The Bank of New York Trust Company, N.A.,
Chicago, Illinois, is appointed Trustee and Bond Registrar for the Bonds.
Section 2.9 ReLyistration of Bonds: Persons Treated as Owners. The Bonds shall be
negotiable, subject to the following provisions for registration and registration of transfer. The
City shall maintain books for the registration of the Bonds at the office of the Bond Registrar.
Each Bond shall be fully registered on those books in the name of its owner, as to both principal
and interest. Transfer of each Bond shall be registered only on those books upon surrender of
that Bond to the Bond Registrar by the registered owner or his or her attorney duly authorized in
writing together with a written instrument of transfer satisfactory to the Bond Registrar duly
executed by the registered owner or his or her duly authorized attorney. Upon surrender of a
Bond for registration of transfer, the City shall execute, the Trustee shall authenticate, and the
Bond Registrar shall deliver, in the name of the transferee, one or more new Bonds of the same
aggregate principal amount and of the same maturity as the Bond surrendered.
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CHIC_1308988.4
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Bonds may be exchanged, at the option of the registered owner, for an equal aggregate
principal amount of Bonds of the same maturity of any other Authorized Denominations, upon
surrender of those Bonds at the office of the Bond Registrar with a written instrument of transfer
satisfactory to the Bond Registrar duly executed by the registered owner or his or her duly
authorized attorney.
In all cases in which the privilege of exchanging or transferring Bonds is exercised, the
City shall execute, the Trustee shall authenticate, and the Bond Registrar shall deliver, Bonds in
accordance with the provisions of this Indenture. All Bonds surrendered in any exchange or
transfer shall be canceled immediately by the Bond Registrar.
For every exchange or registration of transfer of Bonds, the City or the Bond Registrar
may make a charge sufficient to reimburse it for any tax, fee or other governmental charge, other
than one imposed by the City, required to be paid with respect to that exchange or registration of
transfer, and payment of that charge by the person requesting exchange or registration of transfer
shall be a condition precedent to that exchange or registration of transfer. No other charge may
be made by the City or the Bond Registrar as a condition precedent to exchange or registration of
transfer of any Bond.
The Bond Registrar shall not be required to exchange or register the transfer of any Bond
following the close of business on the 15th day of the month preceding any Interest Payment
Date on such Bond, nor to transfer or exchange any Bond after notice calling such Bond for
redemption has been mailed, nor during a period of 15 days next preceding mailing of a notice of
redemption of any Bonds.
The City, the Trustee and the Bond Registrar may treat the registered owner of any Bond
as its absolute owner, whether or not that Bond is overdue, for the purpose of receiving payment
of the principal of or interest on that Bond and for all other purposes, and neither the City, the
Bond Registrar nor the Trustee shall be affected by any notice to the contrary. Payment of the
principal of and interest on each Bond shall be made only to its registered owner, and all such
payments shall be valid and effective to satisfy the obligation of the City on that Bond to the
extent of the amount paid.
Section 2.10 Global Form: Securities Denositorv. It is intended that the Bonds be
registered so as to participate in a securities depository system with DTC, as set forth herein.
The Bonds shall be initially issued in the form of a single fully registered Bond for each of the
maturities as established in Section 2.4 of this Indenture with respect to the Bonds. Upon initial
issuance, the ownership of the Bonds shall be registered in the name of Cede & Co., or any
successor thereto, as nominee for DTC. The City and the Trustee are authorized to execute and
deliver such letters to or agreements with DTC as shall be necessary to effectuate the securities
depository system of DTC, including the Letter of Representations. With respect to Bonds
registered in the name of Cede & Co., as nominee of DTC, the City, the Bond Registrar and the
Trustee shall have no responsibility or obligation to any broker - dealer, bank or other financial
institution for which DTC holds Bonds from time to time as securities depository (each such
broker- dealer, bank or other financial institution being referred to herein as a "Devository
Participant ") or to any person on behalf of whom such a Depository Participant holds an interest
in the Bonds (each such person being herein referred to as an "Indirect Participant "). Without
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CHIC_1308968.4
limiting the immediately preceding sentence, the City, the Bond Registrar and the Trustee shall
have no responsibility or obligation with respect to (a) the accuracy of the records of DTC, Cede
& Co., or any Depository Participant with respect to the ownership interest in the Bonds, (b) the
delivery to any Depository Participant or any Indirect Participant or any other person, other than
a registered owner of a Bond, of any notice with respect to the Bonds, including any notice of
redemption or (c) the payment to any Depository Participant or Indirect Participant or any other
person, other than a registered owner of a Bond, of any amount with respect to principal of,
premium, if any, or interest on, the Bonds. Notwithstanding the foregoing, the City, the Bond
Registrar and the Trustee shall have those obligations and responsibilities set forth in this
Indenture with respect to Beneficial Owners and Notice Beneficial Owners who have provided
notice of their beneficial ownership to the City, the Bond Registrar and the Trustee as set forth in
the definition of Beneficial Owner. While in the securities depository system of DTC, no person
other than Cede & Co., or any successor thereto, as nominee for DTC, shall receive a Bond
certificate with respect to any Bond. Upon delivery by DTC to the Trustee of written notice to
the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and
subject to the provisions of this Indenture with respect to the payment of interest by the mailing
of checks or drafts to the registered owners of Bonds at the close of business on the record date
applicable to any interest payment date, the name "Cede & Co." in this Indenture shall refer to
such new nominee of DTC.
In the event that (a) the Trustee determines that DTC is incapable of discharging its
responsibilities described herein and in the Letter of Representations, (b) the Letter of
Representations shall be terminated for any reason or (c) the City determines that it is in the best
interests of the Beneficial Owners of the Bonds that they be able to obtain certificated Bonds, the
City shall notify DTC of the availability through DTC of Bond certificates and the Bonds shall
no longer be restricted to being registered in the name of Cede & Co., as nominee of DTC. At
that time, the City may determine that the Bonds shall be registered in the name of and deposited
with a successor depository operating a securities depository system, as may be acceptable to the
City or such depository's agent or designee, and if the City does not select such alternate
securities depository system then the Bonds may be registered in whatever name or names
registered owners of Bonds transferring or exchanging Bonds shall designate, in accordance with
the provisions hereof.
Notwithstanding any other provisions of this Indenture to the contrary, so long as any
Bond is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to
principal of, premium, if any, and interest on the Bonds and all notices with respect to the Series
shall be made and given, respectively, in the manner provided in the Letter of Representations.
ARTICLE IIi
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ADDITIONAL BONDS
Section 3.1 Authoritv to Issue Additional Bonds. No additional bonds may be issued
under this Indenture.
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CHIC 1308968.4
ARTICLE IV
REDEMPTION OF BONDS
Section 4.1 Mandatory Sinking Fund Redemntion.The Bonds are subject to mandatory
sinking fund redemption and final payment at a price of par plus accrued interest, without
premium, on March 1, of the years and in the amounts as follows:
Year Amount
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The foregoing mandatory sinking fund redemption requirements are subject to adjustment
as set forth in Sections 4.2, 4.3 and 4.4 hereof.
The City covenants that it will redeem the Bonds pursuant to the mandatory sinking fund
redemption requirements for the Bonds to the extent amounts are on deposit in the Bond and
Interest Fund. If the full amount of the sinking fund requirement as set forth in the chart above is
not on deposit in the Bond and Interest Fund on the date set forth in the chart above, the Bonds
shall only be redeemed in an amount equal to the amount on deposit in the Bond and Interest
Fund (provided that any such redemption shall only be in an Authorized Denomination) with the
remaining amounts to be redeemed once moneys are on deposit in the Bond and Interest Fund.
Proper provision for mandatory redemption having been made, the City covenants that the Bonds
so selected for redemption shall be payable upon redemption and taxes have been levied and will
be collected as provided herein and in the Bond Ordinance for such purposes.
Section 4.2 Optional Redemption.The Bonds are subject to optional redemption prior
to maturity at the option of the City, in whole or in part, on any date on or after March 1, 2016, at
a redemption price (expressed as a percentage of the principal amount of the Bonds to be
redeemed), as set forth below, plus accrued and unpaid interest to the date of redemption:
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CHIC 1308968.4
Redemption Dates Redemption Prices
March 1, 2016 through 102%
February 28, 2017
March 1, 2017 through 101
February 28, 2018
March 1, 2018 and thereafter 100
Any optional redemption of Bonds in part shall be applied, to the extent possible, to reduce pro
rata the amount of Bonds required to be redeemed by mandatory sinking fund redemption
pursuant to Section 4.1 of this Indenture, and so as to maintain the proportion of principal j
maturing or subject to mandatory sinking fund redemption in each year to the total original
principal amount of Bonds.
Section 4.3 Mandatory Redemption Unon Condemnation, Completion Date and
Change in Densitv.
(a) The Bonds are subject to mandatory redemption on any Interest Payment
Date, in part, at a redemption price equal to the principal amount to be redeemed,
together with accrued interest to the date fixed for redemption, without premium, from
amounts in the Bond and Interest Fund consisting of the proceeds received by the City in
connection with a condemnation of any of the Special Services or any other property
dedicated to, or owned by, the City within the Special Service Area and allocable to the (,
Bonds as determined by the Consultant and which proceeds are not used by the City to
rebuild the Special Services to the extent so identified by the City and as further provided
in Section 7.1(a) hereof.
(b) The Bonds are subject to redemption on any Interest Payment Date in part,
at a redemption price equal to the principal amount to be redeemed, together with accrued
interest to the date fixed for redemption, without premium, from amounts transferred
from the Improvement Fund to the Bond and Interest Fund as described in Section 7.3
hereof.
(c) The Bonds are subject to mandatory redemption on any Interest Payment
Date, in whole or in part, at a redemption price equal to the principal amount to be
redeemed, together with accrued interest to the date fixed for redemption, without
premium, in the event of a mandatory prepayment of the Special Tax upon a reduction in
the Maximum Parcel Special Tax such that annual debt service coverage ratio calculated
pursuant to Section VI G of the Special Tax Roll and Report is less than 110% as a result
of a change in the expected number of single family lots or townhome lots to be built
within the Special Service Area as set forth in the final plat or plats of subdivision
approved by the City or any other event that reduces the total of the Maximum Parcel
Special Tax such that annual debt service coverage ratio calculated pursuant to Section
VI G of the Special Tax Roll and Report is less than 110% as described in, and in the
amounts set forth in, Section VI G of the Special Tax Roll and Report and Exhibit B
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CHIC 1308968.4
thereto. The City, or the Consultant on behalf of the City, shall notify the Trustee of any
such redemption and the amount of Bonds to be redeemed.
Any mandatory redemption of the Bonds pursuant to this Section 4.3 shall be applied, to
the extent possible, to reduce pro rata the amount of Bonds required to be redeemed by
mandatory sinking fund redemption pursuant to Section 4.1 of this Indenture and so as to
maintain the proportion of principal maturing or subject to mandatory sinking fund redemption
in each year to the total original principal amount of the Bonds.
Section 4.4 Special Mandatory Redemption from Optional Prepavment of Special
Taxes The Bonds are also subject to mandatory redemption on any March 1, June 1, September
1 or December 1, in part, from optional prepayments of the Special Tax, and from amounts
available for disbursement from the Special Redemption Account pursuant to and to the extent
provided in Section 7.1(e), and from amounts transferred from the Reserve Fund and the
Capitalized Interest Account to the Special Redemption Account pursuant to Section 7.1(e). at a
redemption price (expressed as a percentage of the principal amount of the Bonds to be
redeemed), as set forth below, together with accrued interest on such Bonds to the date fixed for
redemption:
Redemption Dates Redemption Prices
On or prior to
February 29, 2016 103%
March 1, 2016 through
February 28, 2017 102
March 1, 2017 through
February 28, 2018 101
March 1, 2018 and thereafter 100
Any special mandatory redemption of the Bonds pursuant to this Section 4.4 shall be
applied, to the extent possible, to reduce pro rata the amount of Bonds required to be redeemed
by mandatory sinking fund redemption pursuant to Section 4.1 of this Indenture and so as to
maintain the proportion of principal maturing or subject to mandatory sinking fund redemption
in each year to the total original principal amount of Bonds. The Consultant shall identify for the
Trustee whether a prepayment is an optional prepayment or mandatory prepayment pursuant to
the Special Tax Roll and Report.
Section 4.5 Redemption Provisions: Notice of Redemption. If less than all the Bonds
of any maturity are to be redeemed on any redemption date, the Bond Registrar appointed in this
Indenture shall assign to each Bond of the maturity to be redeemed a distinctive number for each
$1,000 of principal amount of that Bond. The Bond Registrar shall then select by lot from the
numbers so assigned, using such method as it shall deem proper in its discretion, as many
numbers as, at $1,000 per number, shall equal the principal amount of Bonds of that maturity to
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CHIC 1308968.4
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be redeemed; provided that following any redemption, no Bond shall be outstanding in an
amount less than the minimum Authorized Denomination except (a) as necessary to effect the
mandatory sinking fund redemption of Bonds as provided in Section 4.1 hereof or (b) to effect a
special mandatory redemption from optional prepayments when the total aggregate principal
amount of Bonds outstanding is less than the minimum Authorized Denomination.
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Notice of the redemption of any Bonds, which by their terms shall have become subject
to redemption, shall be given to the Notice Beneficial Owners and the registered owner of each
Bond or portion of a Bond called for redemption not less than 30 or more than 60 days before
any date established for redemption of Bonds, by the Bond Registrar, on behalf of the City, by
first class mail sent to the registered owner's last address, if any, appearing on the registration
books kept by the Bond Registrar. All notices of redemption shall include at least the
designation, date and maturities of Bonds called for redemption, CUSIP Numbers, if available,
and the date of redemption. In the case of a Bond to be redeemed in part only, the notice shall
also specify the portion of the principal amount of the Bond to be redeemed. The mailing of the
notice specified above to the Notice Beneficial Owners and the registered owner of any Bond
shall be a condition precedent to the redemption of that Bond, provided that any notice which is
mailed in accordance with this Indenture shall be conclusively presumed to have been duly given
whether or not the owner received the notice. The failure to mail notice to the owner of any
Bond, or any defect in that notice, shall not affect the validity of the redemption of any other
Bond for which notice was properly given.
j Any notice of optional redemption may also state (and shall state if the City shall so
direct) that the redemption is conditioned on receipt of moneys for such redemption by the
Trustee on or prior to the redemption date; if such moneys are not received, the redemption of
the Bonds for which notice was given shall not be made. In the event of any revocation of notice
of optional redemption, the Trustee shall send notice of such revocation to the registered owners
of the Bonds within three (3) Business Days after such proposed redemption date.
Section 4.6 Purchase in Lieu of Redemution. In lieu of redemption as provided in this
Article IV, moneys in the Bond and Interest Fund may be used and withdrawn by the City for the
purchase of outstanding Bonds at public or private sale as and when, and at such prices
(including brokerage and other charges) as the City may provide, but in no event may Bonds be
purchased at a price in excess of the principal amount of such Bonds, plus interest accrued to the
date of purchase and any premium which would otherwise be due if such Bonds were to be
redeemed in accordance with this Indenture. Any Bonds or portions thereof so purchased shall
be delivered to the Trustee for cancellation.
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ARTICLE V
APPLICATION OF PROCEEDS
Section 5.1 Annlication of Proceeds. The proceeds of the sale of the Bonds in the
amount of $ which is net of underwriter's discount in the amount of
$ , shall be applied as follows immediately upon receipt of the purchase price:
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CHIC 1308968.4
(a) Capitalized interest in the amount of $ shall be
deposited in the Capitalized Interest Account of the Bond and Interest Fund.
(b) The amount of $ shall be deposited in the Reserve Fund.
(c) The amount of $ shall be deposited in the Administrative
Expense Fund.
(d) The amount of $ shall be deposited in the Costs of
Issuance Account of the Improvement Fund.
(e) The balance of the proceeds of sale of the Bonds ($ )
shall be deposited in the Improvement Fund and applied at the direction of the City to the
payment of a portion of the costs of the Special Services.
All amounts received upon the sale of the Bonds, together with all interest and other
investment earnings on those amounts, are appropriated and set aside for the purposes for which
the Bonds are being issued as set forth in this Indenture.
ARTICLE VI
SECURITY FOR THE BONDS
Section 6.1 Limited Oblil?ations.The Bonds shall constitute limited obligations of the
City, payable solely from the Special Tax and other moneys deposited in the Funds and Accounts
established pursuant to Article VII other than the Administrative Expense Fund and the Rebate
Fund. The Bonds shall not constitute general obligations of the City and neither the full faith and
credit nor the unlimited taxing power of the City shall be pledged as security for payment of the
Bonds.
Section 6.2 Levv of Special Tax.
(a) Pursuant to the Bond Ordinance there have been levied Special Taxes
upon all taxable real property within the Special Service Area subject to the Special
Taxes sufficient to pay and discharge the principal of the Bonds at maturity or mandatory
sinking fund redemption dates and to pay interest on the Bonds for each year at the
interest rates set forth in Section 2.4 of this Indenture, to pay the estimated
Administrative Expenses of the City for each year and to replenish the Reserve Fund to
an amount equal to the Reserve Requirement.
(b) The City Clerk has been directed to file a certified copy of the Bond
Ordinance, and an accurate map of the Special Service Area, with the County Clerk of
the County of Kendall. The Special Taxes shall be computed, extended and collected in
accordance with the Special Tax Roll and Report, and divided among all taxable real
property within the Special Service Area in accordance with the terms of the Establishing
Ordinance and the Special Tax Roll and Report. It shall be the duty of the City and the
City hereby covenants, annually on or before the last Tuesday of December for each of
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CHIC 1308968.4
the years 2007 through 2034 to calculate or cause the Consultant to calculate the Special
Tax Requirement; to amend the Special Tax Roll pursuant to Section VI E of the Special
Tax Roll and Report and provide the County tax collector with the amended Special Tax
Roll; to adopt an ordinance approving the amount of the current calendar year's Special
Tax Requirement and abating the Special Taxes levied pursuant to the Bond Ordinance to
the extent the taxes levied pursuant to the Bond Ordinance exceed the Special Tax
Requirement as calculated by the City pursuant to the Establishing Ordinance and the
Special Tax Roll and Report. On or before the last Tuesday of January for each of the
years 2008 through 2035 the Consultant shall notify the Trustee who shall notify the
Notice Beneficial Owners of the amount of the Special Tax Requirement and the amount
of the Special Taxes to be abated. The City shall take all actions which shall be
necessary to provide for the levy, extension, collection and application of the taxes levied
by the Bond Ordinance, including enforcement of such taxes by providing the County
with such information as is deemed necessary to enable the County to include any
property subject to delinquent Special Taxes in the County Collector's annual tax sale
and in the event the tax lien is forfeited at such tax sale, by institution of foreclosure
procedures as provided by law; provided, however, that the obligation to institute any
foreclosure action against any taxpayer other than a taxpayer owning at least 5% of the
property in the Special Service Area shall only arise in the event the City makes the
determination that the proceeds from the foreclosure action have a commercially
reasonable expectation of exceeding the costs thereof.
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The City covenants that to the extent necessary to enforce a prepayment it will
adopt a supplemental levy ordinance within the Special Service Area in the event of a
i � I
mandatory prepayment of the Special Taxes pursuant to Section VI G of the Special Tax
Roll and Report caused by a reduction in the expected number. of single family lots or
townhome lots as set forth in the final plat of subdivision approved by the City, to the
extent that the mandatory prepayment amount calculated pursuant to the terms of the
Special Tax Roll and Report exceeds the Special Taxes levied for the year in which the
prepayment is due pursuant to the Bond Ordinance.
(c) Upon receipt by the Trustee of any prepayment of Special Taxes in an
amount calculated by the Consultant as being required pursuant to the Special Tax Roll
and Report to satisfy the lien on a Parcel within the Special Service Area, the City and the
Trustee shall execute a Satisfaction of Tax Lien substantially in the form of Exhibit C
hereto, appropriately completed and the Trustee shall deliver the Satisfaction of Tax Lien
to the City for filing with the Recorder of Deeds of Kendall County, Illinois. The City
shall deliver a copy of each such Satisfaction of Tax Lien to the property owner of record
and a copy of the recorded Satisfaction of Tax Lien to the Trustee.
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CHIC 1308968.4
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ARTICLE VII
FUNDS AND ACCOUNTS
Section 7.1 Bond and Interest Fund.
(a) There is hereby created and established with the Trustee a separate and
special fund of the City established exclusively for paying principal of, interest on and
redemption premium on the Bonds and which shall be designated as "The Special Service
Area Number 2005 -108 Special Tax Bonds, Bond and Interest Fund" (the "Bond and
Interest Fund "). When collected, the Special Taxes and the Foreclosure Proceeds,
including any interest and penalties collected in connection with such Special Taxes or
Foreclosure Proceeds, shall be placed in the Bond and Interest Fund and the City shall
identify for the Trustee the amount so deposited. The City may provide for the County to
transmit directly to the Trustee for deposit to the Bond and Interest Fund any Special
Taxes collected by the County. In addition, proceeds received by the City in connection
with a condemnation of any of the Special Services or any other property owned by or
dedicated to the City within the Special Service Area and allocable to the Bonds as
determined by the Consultant which is not used to rebuild the Special Services shall be
deposited in the Bond and Interest Fund. Moneys deposited in the Bond and Interest
Fund and investments of the Bond and Interest Fund shall never be commingled with or
loaned to any other funds of the City. All interest and other investment earnings on the
Bond and Interest Fund shall become, when received, a part of the Bond and Interest
Fund. When the amount of condemnation proceeds deposited to the Bond and Interest
Fund equals $1,000 or more, such amount shall be used to redeem Bonds pursuant to
Section 4.3 of this Indenture on the next Interest Payment Date. Any amounts
representing condemnation proceeds which remain on deposit in the Bond and Interest
Fund for a continuous period of thirty (30) months and which will not be used to redeem
the Bonds on the next Interest Payment Date in accordance with Section 4.3 and this
section shall be used to pay debt service on the Bonds on the next Interest Payment Date.
(b) Amounts deposited in the Bond and Interest Fund are appropriated for and
irrevocably pledged to, and shall be used solely for the purpose of, paying the principal of
and interest and redemption premium on the Bonds, or for transfers to the Reserve Fund
or the Administrative Expense Fund as permitted by paragraph (c) of this Section 7.1 and
by Section 7.2.
(c) At any time after September 1 but in no event later than December 1 of
each year, the Trustee shall determine the amount needed to pay principal of and interest
and redemption premium on the Bonds on the next succeeding Interest Payment Date.
After the Trustee has determined that sufficient amounts are on deposit in the Bond and
Interest Fund to pay principal of, interest on and redemption premium due on the Bonds
on the next succeeding Interest Payment Date, the Trustee shall notify the City and the
Consultant of any excess amounts on deposit in the Bond and Interest Fund, and, at the
written direction of the City, shall transfer an amount from the Bond and Interest Fund to
the Administrative Expense Fund which the City, after consultation with the Consultant,
has determined will be adequate, together with other amounts in the Administrative
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CHIC_1308968.4
i
Expense Fund or reasonably expected to be transferred to or deposited in such Fund, to
pay all Administrative Expenses during the succeeding calendar year. After making such
transfer to the Administrative Expense Fund any excess amounts on deposit in the Bond
and Interest Fund shall be transferred to the Reserve Fund to the extent necessary to
replenish the Reserve Fund to the Reserve Requirement and thereafter any remaining
excess shall be retained in the Bond and Interest Fund and applied to pay principal and
interest coming due on the Bonds on the second succeeding Interest Payment Date;
provided, however, that investment earnings on amounts on deposit in the Bond and
Interest Fund on or prior to the completion of the Special Services shall be transferred to
the Improvement Fund and thereafter retained in the Bond and Interest Fund. Written
notice of each such transfer shall promptly be given by the Trustee to the Notice
Beneficial Owners.
(d) There is hereby created within the Bond and Interest Fund established
with the Trustee a separate account designated the "Capitalized Interest Account."
Amounts deposited in the Capitalized Interest Account shall be used and shall be applied
solely for the purpose of paying interest on the Bonds first coming due or for transfer to
the Special Redemption Account as provided in clause (e) below and shall be applied by
the Trustee for such purposes without any further authorization or direction. Investment
earnings on amounts on deposit in the Capitalized Interest Account shall be transferred
by the Trustee to the Improvement Fund.
(e) There is hereby created within the Bond and Interest Fund established
with the Trustee a separate account designated the "Special Redemption Account."
Amounts deposited in the Special Redemption Account shall be applied to the
redemption of Bonds pursuant to Section 4.4 of this Indenture. All prepayments of the
Special Taxes made in accordance with the Special Tax Roll and Report shall be
deposited in the Special Redemption Account. Moneys in the Special Redemption
Account shall be used exclusively to redeem Bonds pursuant to Section 4.4 (with respect
to optional prepayments) or Section 4.3(c) (with respect to mandatory prepayments), as
applicable, or to pay debt service on the Bonds pursuant to this Section 7.1. In the event
of any optional prepayment of the Special Taxes, prior to giving notice of the redemption
of Bonds in accordance with Section 4.4 of this Indenture, the Trustee shall transfer from
the Reserve Fund to the Special Redemption Account an amount equal to the Reserve
Fund Credit and from the Capitalized Interest Account to the Special Redemption
Account an amount equal to the Capitalized Interest Credit, if any, as determined by and
upon the direction of the Consultant in accordance with the Special Tax Roll and Report.
The Reserve Requirement shall then be reduced by an amount equal to the Reserve Fund
Credit. When the amount on deposit in the Special Redemption Account equals or
exceeds $1,000, such amount shall be used to redeem Bonds on the next March 1, June 1,
September 1 or December 1 with respect to a redemption pursuant to Section 4.4 or on
the next Interest Payment Date with respect to a redemption pursuant to, and in
accordance with, Section 4.3(c), as applicable. On each such March 1, June 1, September
1 or December 1 with respect to a redemption pursuant to Section 4.4 or on the next
Interest Payment Date with respect to a redemption pursuant to Section 4.3(c), the
Trustee shall withdraw from the Special Redemption Account and pay to the owners of
the Bonds the amounts to redeem the Bonds pursuant to Section 4.4 or Section 4.3(c), as
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CHIC 1308968.4
i
applicable. Notwithstanding the foregoing, any amounts contained in the Special
Redemption Account for a continuous period of thirty (30) months and which will not be
used to redeem Bonds on or before the next Interest Payment Date in accordance with the
immediately preceding sentence and Section 4.4 or Section 43(c), as applicable, shall be
used to pay debt service on the Bonds on the next Interest Payment Date. Any amounts
contained in the Special Redemption Account on the final maturity date of the Bonds
shall be used to pay outstanding debt service on the Bonds.
Section 7.2 Reserve Fund. There is hereby created and established with the Trustee a
separate and special fund of the City which shall be designated as "The Special Service Area
Number 2005 -108 Special Tax Bonds, Reserve Fund" (the "Reserve Fund "), which must be
maintained in an amount equal to the Reserve Requirement. The Reserve Requirement shall be
an amount equal to $ as reduced by the amount of any Reserve Fund Credit
pursuant to Section 7.1(e) (the "Reserve Requirement"). Amounts deposited in the Reserve
Fund shall be used solely for the purpose of - (i) making transfers to the Bond and Interest Fund to
pay the principal of, including mandatory sinking fund payments, and interest and any premium
on, all Bonds when due, in the event that moneys in the Bond and Interest Fund are insufficient
therefor, (ii) making any transfers to the Bond and Interest Fund if the balance in the Reserve
Fund exceeds the amount required to redeem all Bonds then outstanding, (iii) making transfers to
the Special Redemption Account pursuant to Section 7.1(e) or (iv) if the amount then on deposit
in the Reserve Fund is at least equal to the Reserve Requirement, for transfer in accordance with
the next paragraph.
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On the Business Day prior to each Interest Payment Date, moneys in the Reserve Fund in
j excess of the Reserve Requirement shall be transferred by the Trustee from the Reserve Fund to
the Improvement Fund on or prior to completion of the Special Services and thereafter to the
Bond and Interest Fund to be used for the payment of interest on Bonds on the next following
Interest Payment Date,
Section 7.3 Improvement Fund. There is hereby created and established with the
Trustee a separate and special fund of the City which shall be designated as "The Special Service
Area Number 2005 -108 Special Tax Bonds, Improvement Fund" (the "Improvement Fund ").
Moneys in the Improvement Fund shall be disbursed solely for the payment of the cost of
acquiring, constructing, installing and performing the Special Services. Disbursements from the
Improvement Fund shall be made by the Trustee upon receipt of a Disbursement Request of the
City substantially in the form attached as Exhibit D to this Indenture executed by an Authorized
Officer which shall (i) set forth the amount required to be disbursed, the purpose for which the
disbursement is to be made, state that such Special Services or portions thereof have been
completed in accordance with the terms of the Public Infrastructure Agreement, state that the
disbursement is for the payment of a Special Service, and include payment instructions to the
Trustee for the amount to be disbursed (which may provide for payment by the Trustee to a title
company acceptable to the Trustee and the Developer in the event a construction escrow is
utilized); and (ii) certify that no portion of the amount then being requested to be disbursed was
set forth in any previous request for disbursement. A copy of each Disbursement Request shall
be delivered by the Trustee to the Consultant.
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CHIC 1308968.4
On the date on which a certificate of an Authorized Officer of the City is delivered to the
Trustee certifying that the Special Services have been completed (the "Completion Date "), the
Trustee shall transfer all amounts remaining in the Improvement Fund to the Bond and Interest
Fund to be applied to the redemption of the Bonds pursuant to Section 4.3(b) hereof provided,
however, that any amounts transferred to be applied to the redemption of Bonds which do not
equal $1,000 or an integral multiple of $1,000 may be applied to pay interest owing on the Bonds
on the next succeeding Interest Payment Date; and provided further, however, that upon written
direction of an Authorized Officer an amount specified by the City may be transferred to the
Capitalized Interest Account upon delivery to the Trustee of an opinion of Bond Counsel to the
effect that the transfer of such amounts will not adversely affect the exclusion from gross income
of interest on the Bonds for federal income tax purposes and is permitted under Illinois law. All
investment earnings on amounts on deposit in the Improvement Fund prior to the Completion
Date shall be retained therein to pay the costs of the Special Services.
There is hereby created within the Improvement Fund established with the Trustee a
separate account designated the "Costs of Issuance Account." Amounts deposited in the Costs of
Issuance Account shall be used solely for the purpose of paying costs incurred in connection
with the issuance of the Bonds. Disbursements from the Costs of Issuance Account shall be
made by the Trustee upon receipt of a request of the City which shall (i) set forth the amount
required to be disbursed, the purpose for which the disbursement is to be made, that the
disbursement is a proper expenditure from the Costs of Issuance Account, and payment
instructions to the Trustee for the amount to be reimbursed; and (ii) certify that no portion of the
amount then being requested to be disbursed was set forth in any previous request for
disbursement. On the date which is six (6) months after the date of issuance of the Bonds, the
Trustee shall transfer all amounts remaining in the Costs of Issuance Account to the
Improvement Fund.
Section 7.4 Administrative Expense Fund.There is hereby created and established with
the Trustee a separate and special fund of the City which shall be designated as "The Special
Service Area Number 2005 -108 Special Tax Bonds, Administrative Expense Fund" (the
"Administrative Expense Fund"). Amounts in the Administrative Expense Fund shall be
withdrawn by the Trustee and paid to the City or its order upon receipt by the Trustee of a
written request from an Authorized Officer stating the amount to be withdrawn, that such amount
is to be used to pay an Administrative Expense, and the nature of such Administrative Expense.
On or prior to completion of the Special Services investment earnings on amounts on deposit in
the Administrative Expense Fund shall be transferred by the Trustee to the Improvement Fund
and thereafter shall be retained in the Administrative Expense Fund.
Section 7.5 Rebate Fund. There is hereby created and established with the Trustee a
separate and special fund of the City which shall be designated as "The Special Service Area
Number 2005 -108 Special Tax Bonds, Rebate Fund" (the "Rebate Fund "), into which there shall
be deposited, as necessary, and as directed by the City or a rebate consultant on behalf of the
City, investment earnings in the Bond and Interest Fund and the Reserve Fund to the extent
required so as to maintain the tax exempt status of interest on the Bonds. All rebates, special
impositions or taxes for such purpose payable to the United States of America (Internal Revenue
Service) shall be payable from the Rebate Fund.
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CHIC_1308968.4
i
Section 7.6 Investment of Funds. Moneys on deposit in Funds and Accounts
established hereunder may be invested from time to time in Qualified Investments pursuant to
directions from the City to the Trustee after consulting with the Developer provided that moneys
on deposit in the Special Redemption Account shall be invested in Qualified Investments having
a maturity of 180 days or less. Except as otherwise expressly provided herein, earnings or losses
on such investments shall be attributed to the Fund or Account for which the investment was
made. In the event that the Trustee does not receive directions from the City to invest funds held
hereunder, the Trustee shall invest such funds in a money market fund which invests in (i) short -
term securities issued or guaranteed by the United States Government, its agencies or
instrumentalities and/or (ii) repurchase agreements relating to such securities. The .Trustee is
hereby authorized to execute purchases and sales of Qualified Investments through the facilities
of its own trading or capital markets operations or those of any affiliated entity.
The Trustee shall send statements to the City and the Consultant on a
monthly basis reflecting activity in the funds and accounts established�pursuant to this Indenture
for the preceding month as required by Section 10.9 of this Indenture. Although the City j
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 Qualified
Investments are not required to be issued by the Trustee for each month in which a monthly
statement is rendered.
ARTICLE VIII
COVENANTS AND AGREEMENTS OF THE CITY
Section 8.1 Tax Covenants.
(a) The City covenants with the holders of the Bonds from time to time
outstanding that it (i) will take all actions which are necessary to be taken (and avoid any
actions which it is necessary to avoid being taken) so that interest on the Bonds will not
be or become included in gross income for federal income tax purposes under existing
law, including without limitation the Code; (ii) will take all actions reasonably within its
power to take which are necessary to be taken (and avoid taking any actions which are
reasonably within its power to avoid taking and which are necessary to avoid) so that
interest on the Bonds will not be or become included in gross income for federal income
tax purposes under the federal income tax laws as in effect from time to time; and
(iii) will take no action or, permit any action in the investment of the proceeds of the
Bonds, amounts in the Bond and Interest Fund or any other funds of the City which
would result in making interest on the Bonds subject to federal income taxes by reason of
causing the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code, or direct or permit any action inconsistent with the regulations under the Code as
promulgated and as amended from time to time and as applicable to the Bonds. The
Mayor, City Clerk and City Treasurer are authorized and directed to take such action as is
necessary in order to carry out the issuance and delivery of the Bonds including, without
limitation, to make any representations and certifications they deem proper pertaining to
the use of the proceeds of the Bonds and moneys in the Funds and Accounts established
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CHIC 1308968.4
hereunder in order to establish that the Bonds shall not constitute arbitrage bonds as so
defined.
(b) The City further covenants as follows with respect to the requirements of
Section 148(f) of the Code, relating to the rebate of "excess arbitrage profits" (the
"Rebate Requirement") to the United States:
(c) Unless an applicable exception to the Rebate Requirement is available to
the City, the City will meet the Rebate Requirement.
(i) Relating to applicable exceptions, the City shall make such
elections under the Code as it shall deem reasonable and in the best interests of
the City. If such election may result in a "penalty in lieu of rebate" as provided in
the Code, and such penalty is incurred (the "Penal "), then the City shall pay
such Penalty.
(ii) The City shall cause to be established, at such time and in such
manner as it shall deem necessary or appropriate hereunder, the Rebate Fund for
the Bonds, and the City shall further, not less frequently than annually, cause to
be transferred to the Rebate Fund the amount determined to be the accrued
liability under the Rebate Requirement or Penalty. The City shall cause to be paid
to the United States, without further order or direction from the Corporate
Authorities, from time to time as required, amounts sufficient to meet the Rebate
Requirement or to pay the Penalty.
(iii) Interest earnings in the Bond and Interest Fund and the Reserve
Fund are hereby authorized to be transferred, without further order or direction
from the Corporate Authorities, from time to time as required, to the Rebate Fund
for the purposes herein provided; and proceeds of the Bonds, investment earnings
or amounts on deposit in any of the other funds and accounts created hereunder
and any other funds of the City are also hereby authorized to be used to meet the
Rebate Requirement or to a the Penal but only if necessary after application
q pay t3', Y �'Y pp
of investment earnings as aforesaid and only as appropriated by the Corporate
Authorities.
Section 8.2 Lew and Collection of Taxes. The City covenants with the holders of the
Bonds from time to time outstanding that:
(a) it will take all actions, if any, which shall be necessary, in order further to
provide for the levy, extension, collection and application of the taxes levied by this
Indenture and the Bond Ordinance including enforcement of the Special Taxes as
described in clause (c) below;
(b) it will not take any action which would adversely affect the levy,
extension, collection and application of the taxes levied by this Indenture and the Bond
Ordinance, except to abate those taxes to the extent permitted by this Indenture and the
Special Tax Roll and Report;
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CHIC 1308968.4
(c) it will comply with all requirements of the Special Service Area Act, the
Bond Ordinance and other applicable present and future laws concerning the levy,
extension and collection of the taxes levied by this Indenture and the Bond Ordinance; in
each case so that the City shall be able to pay the principal of and interest on the Bonds as
they come due and replenish the Reserve Fund to the Reserve Requirement and it will
take all actions necessary to assure the timely collection of the Special Taxes, including
j without limitation, the enforcement of any delinquent Special Taxes by providing the
County of Kendall with such information as is deemed necessary to enable the County to
include any property subject to delinquent Special Taxes in the County Collector's annual
tax sale and in the event the tax lien is forfeited at such tax sale, by the commencement
and maintenance of an action to foreclose the lien of any delinquent Special Taxes all in
the manner provided by law; provided, however, that the obligation to institute any
foreclosure action against taxpayers other than a taxpayer owning at least five percent
(5 %) of the property in the Special Service Area shall only arise in the event the City
makes the determination that the proceeds from the foreclosure action have a
commercially reasonable expectation of exceeding the costs thereof, and !
!
(d) in the event the City approves any change in the plat of subdivision which
changes the density of the Special Service Area or otherwise becomes aware of a change
in density, it will provide prompt written notice to the Consultant of such fact .and the .
circumstances resulting in the change in density.
Section 8.3 Prover Books and Records. The City will keep, or cause the Trustee to
keep, proper books of record and accounts, separate from all other records and accounts of the
City, in which complete and correct entries shall be made of all transactions relating to the
deposits to and expenditure of amounts. disbursed from the Funds and Accounts created
hereunder and the Special Taxes. Such books of record and accounts shall at all times during
business hours be subject to the inspection of the holders of not less than ten percent (10 %) of
the principal amount of the Bonds then outstanding, or their representatives authorized in
writing. The City, or the Trustee on behalf of the City, upon written request will mail to the
Purchaser, the Developer and any Notice Beneficial Owner any information relating to the
Bonds, the Special Service Area or the Special Services, including, but not limited to, the annual
audits of the funds and accounts established under this Indenture for each and every year.
Section 8.4 Against Encumbrances. The City will not encumber, pledge or place any
charge or lien upon any of the Special Taxes or other amounts pledged to the Bonds superior to,
on a parity with, or junior to, the pledge and lien created in this Indenture for the benefit of the
Bonds, except as permitted by, or specifically set forth in, this Indenture.
Section 8.5 No Continuing- Disclosure Undertaking-. Based upon the fact that the
Bonds are being initially issued in minim denominations of $100,000 and that the Purchaser
has advised the City of its intention (as further described in the Limited Offering Memorandum)
to offer the Bonds to 35 or fewer sophisticated investors, the offering and sale of the Bonds is
exempt from the provisions of Rule 15c2 -12, in effect as of the date of this Indenture,
promulgated under the Securities and Exchange Act of 1934, as amended.
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CHIC 1308968.4
Section 8.6 Additional Information. The City agrees to provide, or cause the
Consultant to provide, to the Trustee (i) each of the reports, certificates and other information
required to be delivered by the Developer to the City pursuant to Section 6.1 of the Public
Infrastructure Agreement, (ii) a report or reports not later than December 31" each year
commencing December 31, 2006, which may be prepared by the Consultant, setting forth the
Special Tax Requirements for the current year and the immediately succeeding year and the
amount of taxes to be abated for the current year, the current year's collection of taxes,
delinquencies, tax sales, foreclosures, the Special Service Area's equalized assessed valuation,
the estimated new value -to -lien ratio and the current ad valorem property tax rate(s) and (iii) a
copy of the annual audited financial statements of the City.
Section 8.7 Public Infrastructure AIreement. The City agrees to take all actions which
are necessary to be taken to enforce the City's rights under the Public Infrastructure Agreement.
ARTICLE IX
DEFAULTS AND REMEDIES
Section 9.1 Events of Default. "Events of Default" under this Indenture are as
follows:
(a) Default shall be made by the City in the payment of the principal of or
premium, if any, on any Bond when and as the same shall become due and payable,
either at maturity or by proceedings for redemption or otherwise.
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(b) Default shall be made by the City in the payment of any installment of
interest on any Bond when and as such installment of interest shall become due and
payable.
(c) The City shall (1) commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or state
bankruptcy, insolvency or other similar law, (2) make an assignment for the benefit of its
creditors, (3) consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or (4) be adjudicated a bankrupt or have entered against it
any order for relief in respect of any involuntary case under the Federal bankruptcy laws,
as now or hereafter constituted, or any other applicable Federal or state bankruptcy,
insolvency or other similar law and such order shall continue in effect for a period of 60
days without stay or vacation.
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(d) A court of competent jurisdiction shall enter an order, judgment or decree
appointing a receiver of the City, or of the whole or any substantial part of its property, or
approving a petition seeking reorganization of the City under the Federal bankruptcy laws
or any other applicable Federal or state law or statute and such order, judgment or decree
shall not be vacated or set aside or stayed within 60 days from the date of the entry
thereof.
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CHIC_1308968.4
(e) Under the provisions of any other law for the relief or aid of debtors, any
court of competent jurisdiction shall assume custody or control of the. City or of the
whole or any substantial part of its property, and such custody or control shall not be
terminated or stayed within 60 days from the date of assumption of such custody or
control.
(f) The City shall default in the due and punctual performance of any other of
the covenants, conditions, agreements and provisions contained in the Bonds, the Bond
Ordinance or in this Indenture on the part of the City to be performed, and such default
shall continue for 30 days after written notice specifying such default and requiring the
same to be remedied shall have been given to the City by the Trustee (which may give
such notice whenever it reasonably determines that such a default exists and shall give
such notice at the written request of the holders of not less than 25% in principal amount
of the Bonds then outstanding).
Section 9.2 Remedies. Upon the occurrence of an Event of Default the Trustee may,
and upon the written request of the holders of 25% in principal amount of the outstanding Bonds
affected by the Event of Default and upon being indemnified as provided in Section 10.2(1)
hereof shall, proceed to protect and enforce its rights and the rights of the holders of the Bonds
by a suit, action or special proceeding in equity or at law, by mandamus or otherwise, either for
the specific performance of any covenant or agreement contained herein or in aid or execution of
any power herein granted or for any enforcement of any proper legal or equitable remedy as the
Trustee, being advised by counsel, shall deem most effective to protect and enforce the rights
aforesaid.
During the continuance of an Event of Default, all moneys received by the Trustee under
this Indenture from the City or from any other source shall be applied by the Trustee in
accordance with the terms. of Section 9.10 hereof. Upon the occurrence of an Event of Default
described in Section 9.1(a) or bf of this Indenture, which occurs during such time as amounts
remain on deposit in the Improvement Fund, upon the written request of the holders of 25% in
principal amount of the outstanding Bonds, the Trustee shall transfer any amounts on deposit in
the Improvement Fund to the Bond and Interest Fund to be applied by the Trustee in accordance
with Section 9.10 hereof, provided that such transfer may only occur in the event the City has
provided written notice to the Trustee that the Developer has abandoned construction of the
Special Services and the City has elected not to complete the Special Services.
Any judgment against the City shall be enforceable only against the amounts pledged
pursuant to this Indenture. There shall not be authorized any deficiency judgment against any
assets of, or the general credit of, the City, its officers or employees or independent contractors.
The Bonds shall not be subject to acceleration upon the occurrence of an Event of
Default.
Section 9.3 Notice of Default. The Trustee shall, within 10 days after the Trustee
receives notice or obtains knowledge of the occurrence of an Event of Default, mail to the City,
the Developer, the Notice Beneficial Owners and the Bondholders at the address shown on the
registration books of the City maintained by the Bond Registrar, notice of all Events of Default
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known to the Trustee unless such Events of Default shall have been cured before the giving of
such notice.
Section 9.4 Termination of Proceedings by Trustee. In case any proceedings taken by
the Trustee on account of any Event of Default shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and in every such case
the City, the Trustee and the Bondholders 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 9.5 Right of Bondholders to Control Proceedings. Anything in this Indenture
to the contrary notwithstanding, the holders of a majority in principal amount of the Bonds then
outstanding shall have the right, by an instrument in writing executed and delivered to the
Trustee, to direct the method and place of conducting all remedial proceedings to be taken by the
Trustee hereunder in respect of the Bonds; provided that such direction shall not be otherwise
than in accordance with law and the Trustee shall be indemnified to its satisfaction against the
costs, expenses and liabilities to be incurred therein or thereby.
Section 9.6 Right of Bondholders to Institute Suit. No holder of any of the Bonds
shall have any right to institute any suit, action or proceeding in equity or at law for the
execution of any trust hereunder, or for any other remedy hereunder or on the Bonds unless such
holder previously shall have given to the Trustee written notice of an Event of Default as
hereinabove provided, and unless also the holder, or holders, of 25% in principal amount of the
outstanding Bonds affected by the Event of Default shall have made written request of the
Trustee after the right to exercise such powers, or right of action, as the case may be, shall have
accrued, and shall have afforded the Trustee a reasonable opportunity either to proceed to
exercise the powers hereinbefore granted, or to institute such action, suit, or proceeding in its
name; and unless, also, there 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 have refused or neglected to comply 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 execution of the powers and trusts of
this Indenture or for any other remedy hereunder; it being understood and intended that no one or
more holders of the Bonds shall have any right in any manner whatever by his or their action to
affect, disturb or prejudice the security of this Indenture, or to enforce any right hereunder,
except in the manner herein provided, and that all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and for the equal benefit of all
holders of the outstanding Bonds.
Nothing in this Section 9.6 contained shall, however, affect or impair the right of any ,
Bondholder, which is absolute and unconditional, to enforce the payment of the principal of and
interest on the Bondholder's Bonds out of the Bond and Interest Fund, or the obligation of the
City to pay the same, out of the Bond and Interest Fund, at the time and place in the Bonds
expressed.
Section 9.7 Suits by Trustee. All rights of action under this Indenture, or under any of
the Bonds, enforceable by the Trustee, may be enforced by it without the possession of any of
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the Bonds or the production thereof at the trial or other proceeding relative thereto, and any such
suit, or proceeding, instituted by the Trustee shall be brought in its name for the ratable benefit of
the holders of the Bonds affected by such suit or proceeding, subject to the provisions of this
Indenture.
Section 9.8 Remedies Cumulative. No remedy herein conferred upon or reserved to
the Trustee or to the Bondholders is intended to be exclusive of any other remedy or remedies,
and each and every 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.
Section 9.9 Waiver of Default. No delay or omission of the Trustee or of any
Bondholder to exercise any right or power shall be construed to be a waiver of any such default,
or an acquiescence therein; and every power and remedy given by this Article IX to the Trustee
and the Bondholders, respectively, may be exercised from time to time, and as often as may be
deemed expedient.
Section 9.10 Am)lication of Monevs After Default. The City covenants that if an Event
of Default shall happen and shall not have been remedied, the Trustee shall apply moneys,
securities and funds on deposit in the Funds and Accounts established pursuant to Article VII or
received by the Trustee pursuant to any right given or action taken under the provisions of this
Section as follows and in the following order:
(a) To the payment of the reasonable and proper charges, expenses and
liabilities of the Trustee, the Bond Registrar and any paying agent, including the fees and
expenses of outside counsel for the Trustee, the Bond Registrar and any paying agent and
the payment of Administrative Expenses owed to the City or the Consultant.
(b) To the payment of the principal and interest then due on the Bonds as
follows:
(i) first, to the payment to the persons entitled thereto of all interest
then due or payable on the Bonds in the order of the maturity of such installments;
and
(ii) second, to the payment to the persons entitled thereto of the unpaid
installments of principal of any of the Bonds which have become due in the order
of the maturity of such installments.
Whenever moneys are to be applied by the Trustee pursuant to the provisions of this
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paragraph, such moneys shall be applied by the Trustee at such times, and from time to time, as
the Trustee in its sole discretion 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. The deposit of such moneys with the paying agent, or otherwise
setting aside such moneys, in trust for the proper purpose, shall constitute proper application by
the Trustee; and the Trustee shall incur no liability whatsoever to the City, to any Bondholder or
to any other person for any delay in applying any such funds, so long as the Trustee acts with
reasonable diligence, having due regard to the circumstances, and ultimately applies the same in
accordance with such provisions of this Indenture as may be applicable at the time of application
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by the Trustee. Whenever the Trustee shall exercise such discretion in applying such funds, it
shall fix the date (which shall be an Interest Payment Date unless the Trustee shall deem another
date more suitable) upon which such application is to be made and upon such date interest on the
amounts of principal paid on such date shall cease to accrue. The Trustee shall give such notice
as it may deem appropriate of the fixing of any such date and of the endorsement to be entered
on each Bond on which payment shall be made, and shall not be required to make payment to the
holder of any unpaid Bond until such Bond shall be presented to the Trustee for appropriate
endorsement, or some other procedure deemed satisfactory by the Trustee.
ARTICLE X
TRUSTEE
Section 10.1 ADnointment of the Trustee. The Trustee hereunder is hereby constituted
and appointed as the trustee of an express trust hereby created for the Bondholders. The further
rights and duties of the Trustee are set forth in this Article X.
Section 10.2 Performance of Duties. The Trustee shall perform such duties and only
such duties as are specifically set forth in this Indenture, using such care as a corporate trustee
ordinarily would use in performing trusts under a corporate indenture or trust or depositary
agreement.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct, except
that:
(a) The duties and obligations of the Trustee shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture against the
Trustee.
(b) In the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificate or opinion furnished to the Trustee conforming to
the requirements of this Indenture; but in the case of any such certificate or opinion
which by any provision hereof is specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not it
conforms to the requirements of this Indenture.
(c) The Trustee shall not be liable for any error of judgment made in good
faith by a responsible officer or officers of the Trustee unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts.
(d) The Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the holders of not less
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than a majority (or such larger percentage as is otherwise specifically required by the
terms hereof) in aggregate principal amount of all the Bonds at the time outstanding.
(e) None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur individual financial liability in
the exercise of any of its rights or powers.
(f) At any and all reasonable times, upon first providing 48 hours' notice to
the City, the Trustee, and its duly authorized agents, attorneys, experts, engineers,
accountants and representatives, shall have the right fully to inspect any and all of the
books, papers and records of the City pertaining to the Special Services and the Bonds,
and to copy such memoranda from and in regard thereto as may be desired.
(g) The Trustee shall not be required to give any bond or surety in respect of
the execution of the trusts and powers granted by this Indenture or otherwise in respect of
the premises.
(h) Notwithstanding anything elsewhere in this Indenture contained, the
Trustee shall have the right, but shall not be required, to demand, in respect of the
withdrawal of any cash or any action whatsoever within the purview of this Indenture,
any showings, certificates, opinions, appraisals or other information or corporate action
or evidence thereof, in addition to that by the terms hereof required as a condition of such
action by the Trustee, reasonably necessary to establish the right of the City to the
withdrawal of any cash or the taking of any other action by the Trustee.
(i) Before taking any action under Section 9.2. the Trustee may require that a
satisfactory indemnity bond or other security satisfactory to it be furnished by the party
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requesting that the Trustee take such action for the. reimbursement of all expenses to
which it may be put and to protect it against all liability, except liability which is
adjudicated to have resulted from the negligence or willful default of the Trustee in
connection with any action so taken or failure to act in accordance with this Indenture.
(j) All moneys received by the Trustee or any paying agent shall, until used
or applied or invested as herein provided, be held in trust for the purposes for which they
were received.
Section 10.3 Instruments Unon Which Trustee Mav Relv. Except as otherwise
provided in paragraph (b) hereof
(a) The Trustee may rely and shall be protected in acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent, order, bond or
other paper or document reasonably believed by it to be genuine and to have been signed
or presented by the proper party or parties.
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(b) Any notice, request, direction, election, order or demand of the City
mentioned herein shall be sufficiently evidenced by an instrument signed in the name of
the City by its Mayor or its City Clerk (unless other evidence in respect thereof be herein
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specifically prescribed); and any resolution of the Corporate Authorities may be
evidenced to the Trustee by a copy thereof certified by the City Clerk under the City seal.
(c) The Trustee may consult with reputable counsel (who may but need not be
counsel for the City) and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered by it hereunder in
good faith and in accordance with the opinion of such counsel.
(d) Whenever in the administration of the trusts under this Indenture, the
j Trustee shall deem it necessary or desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by a
certificate of the City; and such certificate of the City shall, in the absence of negligence
or bad faith on the part of the Trustee, be full warranty to the Trustee for any action taken
or suffered by it under the provisions of this Indenture upon the faith thereof.
Section 10.4 Trustee not Responsible for Recitals and Other Matters. The Trustee shall
not be responsible in any manner whatsoever for the correctness of the recitals herein or in the
Bonds (except the Trustee's certificate of authentication thereon), all of which are made by the
City solely; and the Trustee shall not be responsible or accountable in any manner whatsoever
for or with respect to the validity or execution or sufficiency of this Indenture, or of any
indenture supplemental hereto, or of the Bond Ordinance or the Bonds, or the sufficiency of the
taxes levied to pay the principal of and interest on the Bonds, or for the security afforded hereby
or for the validity of any securities at any time held hereunder, and the Trustee makes no
representation with respect thereto. The Trustee shall not be accountable for the use or
application by the City of the proceeds of any Bonds authenticated and delivered hereunder, or
for the use or application of any moneys paid over by the Trustee in accordance with any
provision of this Indenture.
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Section 10.5 Trustee Mav Acquire Bonds. The Trustee and its officers and directors
may acquire and hold, or become the pledgee of, Bonds and may otherwise deal with the City in
the manner and to the same extent and with like effect as though it were not Trustee hereunder.
Section 10.6 Oualification of Trustee. There shall at all times be a Trustee hereunder
which shall be a corporation organized and doing business under the laws of the United States or
any state thereof, authorized under such laws to exercise corporate trust powers, having a
combined capital, surplus and undivided profits of at least $25,000,000, and subject to
supervision or examination by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of any supervising or
ex aminin g authority above referred to, then for the purposes of this paragraph the combined
capital, surplus and undivided profits of such corporation shall be deemed to be its combined
capital, surplus and undivided profits as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this paragraph, the Trustee shall resign immediately in the manner and with the
effect specified in Section 10.7.
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Section 10.7 Resignation or Removal of Trustee and Appointment of Successor.
(a) The Trustee may at any time resign by giving written notice to the City,
the Developer, each Notice Beneficial Owner, and the Bondholders by first class mail to
the names and addresses shown on the list maintained by the Bond Registrar. Upon
receiving such notice of resignation, the City. shall promptly appoint a successor Trustee
by an instrument in writing executed by order of the City. If no successor Trustee shall
have been so appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Bondholder who has been
a bona fide holder of a Bond or Bonds for at least six months may, on behalf of himself
and all others similarly situated, petition any such court for the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
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(i) The Trustee shall cease to be eligible in accordance with the
provisions of Section 10.6 and shall fail to resign after written request therefor by
the City, by any Notice Beneficial Owner or by any Bondholder who has been a
bona fide holder of a Bond or Bonds for at least six months, or
(ii) The Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the City may remove the Trustee and appoint a successor Trustee
by an instrument in writing executed by order of the City or any Bondholder may, on
behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor Trustee.
(c) The holders of a majority in aggregate principal amount of all the Bonds at
the time outstanding may at any time remove the Trustee and appoint a successor Trustee
by an instrument or concurrent instruments in writing signed by such Bondholders. Such
successor Trustee shall be a corporation authorized under applicable laws to exercise
corporate trust powers, may be incorporated under the laws of the United States or of any
State within the United States. Such successor Trustee shall satisfy the minimum
combined capital, surplus and undivided profits requirement set forth in Section 10.6.
(d) The City, subject to the approval of the holders of a majority in aggregate
principal amount of all the Bonds at the time outstanding, may at any time remove the
Trustee and appoint a successor Trustee by an instrument in writing signed by the City
and accompanied by an instrument or concurrent instruments in writing signed by such
Bondholders approving such removal and appointment.
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(e) Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 10.7 shall become effective upon
acceptance of appointment by the successor Trustee as provided in Section 10.8.
Section 10.8 Concerning the Successor Trustee. Any successor Trustee appointed as
provided in Section 10.7 shall execute, acknowledge and deliver to the City and to its
predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts, duties and obligations of its predecessor in the trusts hereunder, with like effect as
if originally named as Trustee herein; but nevertheless on the written request of the City or the
request of the successor Trustee, the Trustee ceasing to act shall execute and deliver an
instrument transferring to such successor Trustee, upon the trusts herein expressed, all the rights,
powers and trusts of the Trustee so ceasing to act. Upon request of any such successor Trustee,
the City shall execute any and all instruments in writing more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and duties. Any Trustee ceasing to
act shall nevertheless be entitled to receive the amounts due it as compensation, reimbursement,
expenses and indemnity afforded to it by this Article X.
No successor Trustee shall accept appointment as provided in this Section 10.8 unless at
the time of such acceptance such successor Trustee shall be eligible under the provisions of
Section 10.6.
Upon the acceptance of appointment by a successor Trustee as provided in this
Section 10.8, the City shall mail a copy of such notice to each person whose name appears as an
owner of Bonds on the list maintained by the Bond Registrar and each Notice Beneficial Owner.
If the City fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of
the City.
Any banking association or corporation into which the Trustee may be merged, converted
or with which the Trustee may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any banking association or
corporation to which all or substantially all of the corporate trust business of the Trustee shall be
transferred, shall succeed to all the Trustee's rights, obligations and immunities hereunder
without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 10.9 Monthly Statements. The Trustee shall provide the Purchaser, the
Consultant, the Developer and the City, or their designees, a monthly statement, commencing on
April 1, 2006, itemizing all moneys received by it and all payments made by it under this
Indenture during the preceding monthly period and annual reports relating to the Funds and
Accounts created under this Indenture and such other information relating to the Bonds and the
Funds and Accounts maintained by the Trustee under this Indenture as the Purchaser, the
Developer and the City shall reasonably request.
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The Trustee shall also provide to (i) each Notice Beneficial Owner (until such time as it is
not a Beneficial Owner) and (ii) each other Beneficial Owner upon written request the following:
(a) copies of the monthly statements described above;
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(b) Copies of all notices or reports given to the City by the Trustee under this
Indenture;
(c) Copies of all notices given by the Trustee to, or requests for consent
requested by the Trustee from, the Bondholders;
(d) Notices, reports and financial statements delivered by the City to the
Trustee pursuant to this Indenture, including without limitation, pursuant to Section 8.6
of this Indenture;
(e) Any report, notice or communication in its ` possession given by the
Developer to the City pursuant to the Public Infrastructure Agreement, if any, and
pursuant to this Indenture including, but not limited to, information delivered to the
Trustee pursuant to Section 8.6 of this Indenture;
(f) Any notice required to be given to the Beneficial Owners under this
Indenture;
(g) Copies of all amendments and supplements to this Indenture; and ,
(h) The name and telephone number of the officer of the Trustee who will
provide information required to be delivered pursuant to this Section 10.9. if different
than the name and telephone number set forth in Section 13.2 hereof.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.1 Sunulemental Indentures Not Requiring Consent of Bondholders. The
City by the Corporate Authorities, and the Trustee from time to time and at any time, subject to
the conditions and restrictions in this Indenture contained,, including, without limitation, the
provisions of Section 11.6 hereof, may pass and accept an indenture or indentures supplemental
hereto, which indenture or indentures thereafter shall form a part hereof, for any one or more of
the following purposes:
(a) To add to the covenants and agreements of the City in this Indenture
contained, other covenants and agreements thereafter to be observed or to surrender,
restrict or limit any right or power herein reserved to or conferred upon the City;
(b) To grant to or confer upon the Trustee for the benefit of the owners of the
Bonds any additional rights, remedies, powers, authority or security that may lawfully be
granted to or conferred upon the owners or the Trustee;
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(c) To modify, amend or supplement this Indenture in such manner as to
permit, if presented, the qualification of this Indenture under the Trust Indenture Act of
1939 or any similar federal statute then in effect or under any state blue sky law; and
(d) To surrender any right, power or privilege reserved to or conferred upon
the City by the terms of this Indenture, provided that the surrender of such right, power or
privilege is not contrary to or inconsistent with the covenants and agreements of the City
contained in this Indenture.
Any supplemental indenture authorized by the provisions of this Section 11.1 may be
executed by the City, by the Corporate Authorities, and by the Trustee without the consent of any
Notice Beneficial Owners or the registered owners of any of the Bonds at the time outstanding,
but only upon receipt of an opinion of bond counsel if requested pursuant to the provisions of
Section 11.6, notwithstanding any of the provisions of Section 11.2, but the Trustee shall not be
obligated to accept any provision of such supplemental indenture to the extent that it affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 11.2 Sunnlemental Indentures Requiring Consent of Bondholders. With the
consent (evidenced as provided herein) of the Notice Beneficial Owners and the registered
owners of not less than a majority in aggregate principal amount of the Bonds, respectively, at
the time outstanding, but only upon receipt of an opinion of bond counsel if requested pursuant
to the provisions of Section 11.6. the City, by the Corporate Authorities may pass, and the
Trustee may accept from time to time and at any time an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this indenture or of any supplemental indenture; provided that no such
modification or amendment shall extend the maturity or reduce the principal of or the interest
rate on or otherwise alter or impair the obligation of the City to pay the principal, interest or
redemption premium, if any, at the time and place and at the rate and in the currency provided
therein of any Bond without the express consent of the registered owner of such Bond or permit
the creation of a preference or priority of any Bond or Bonds over any other Bond or Bonds, or
reduce the percentage of Bonds, respectively, required for the affirmative vote or written consent
to an amendment or modification, or deprive the registered owners of the Bonds (except as
aforesaid) of the right to payment of the Bonds, from the Special Taxes and the Foreclosure
Proceeds without the consent of the registered owners of all the Bonds (as the case may be) then
outstanding. Upon receipt by the Trustee of a certified copy of such Indenture and upon the
filing with the Trustee of evidence of the consent of Bondholders as aforesaid, the Trustee shall
accept such supplemental indenture, but the Trustee shall not be obligated to accept any
provision of such supplemental indenture to the extent that it affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
It shall not be necessary for the consent of the Bondholders under this paragraph to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
Promptly after the passage by the City and the acceptance by the Trustee of any
supplemental indenture pertaining to the Bonds pursuant to the provisions of this paragraph, the
City shall cause the Trustee to mail a notice by first class mail to the Bondholders, setting forth
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CHIC 1308968.4
in general terms the substance of such supplemental indenture, and that the supplemental
indenture has been consented to by the requisite percentage of the Bondholders. Any failure of
the City to give such notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 11.3 Supplemental Indenture to Modifv this Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article XI. and upon receipt of the
opinion of bond counsel if required by the provisions of Section 11.6, this Indenture shall be
modified and amended in accordance therewith and the respective rights, duties and obligations
under this Indenture of the City, the Trustee and all registered owners of Bonds, outstanding
thereunder shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modification and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 11.4 Trustee May Rely Unon Opinion of Counsel Re: Supplemental Indenture.
The Trustee may receive an opinion of counsel as conclusive evidence that any supplemental
indenture executed pursuant to the provisions of this Article XI complies with the requirements
of this Article XI.
Section 11.5 Notation. Bonds authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article XI may bear a notation, in form
approved by the Trustee, as to any matter provided for in such supplemental indenture, and if
such supplemental indenture shall so provide, new Bonds, so modified as to conform, in the
opinion of the Trustee and the Corporate Authorities, to any modification of this Indenture
contained in any such supplemental indenture, may be prepared by the City, authenticated by the
Trustee and delivered without cost to the registered owners of the Bonds then outstanding, upon
surrender for cancellation of such Bonds in equal aggregate principal amounts.
Section 11.6 Opinion of Bond Counsel. Prior to the adoption of a supplemental
indenture executed pursuant to the provisions of this Article XI the Trustee shall give written
notice by mail to the Developer, the Notice Beneficial Owners and the registered owners of all
Bonds outstanding at the addresses as set forth in the Register of the Bonds held by the Bond
Registrar of the substance of the proposed supplemental indenture. If within 10 days of the
Trustee's mailing such notice any Notice Beneficial Owner or registered owner of the Bonds
requests that an opinion of bond counsel be delivered to the effect that such supplemental
indenture will not adversely affect the exclusion from gross income of interest on the Bonds for
federal income tax purposes, such supplemental indenture shall not become effective until such
opinion has been delivered to the Trustee.
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ARTICLE XII
DEFEASANCE
Section 12.1 Defeasance.
(a) If the City shall pay or cause to be paid, or there shall otherwise be paid, to
the Bondholders of all Bonds the principal or redemption price, if applicable, and interest
due or to become due thereon, at the times and in the manner stipulated therein and in this
Indenture, then the pledge of the Trust Estate, and all covenants, agreements and other
obligations of the City to the Bondholders, shall thereupon cease, terminate and become
void and be discharged and satisfied. In such event, the Trustee shall cause an
accounting for such period or periods as shall be requested by the City to be prepared and
filed with the City and, upon the request of the City, shall execute and deliver to the City
all such instruments as may be desirable to evidence such discharge and satisfaction, and
the Trustee shall pay over or deliver to the City all moneys or securities held pursuant to
this Indenture which are not required for the payment of principal or redemption price, if
applicable, of and interest on the Bonds. If the City shall pay or cause to be paid, or there
shall otherwise be paid, to the Bondholders of any outstanding Bonds the principal or
redemption price and interest due or to become due thereon, at the times and in the
manner stipulated therein and in this Indenture, such Bonds shall cease to be entitled to
any lien, benefit or security under this Indenture, and all covenants, agreements and
obligations of the City to the Bondholders of such Bonds shall thereupon cease, terminate
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and become void and be discharged and satisfied.
(b) Bonds or interest installments for the payment or redemption of which
moneys shall have been set aside and shall be held in trust by the Trustee (through
deposit by the City of funds for such payment or redemption or otherwise) at the maturity
or redemption date thereof shall be deemed to have been paid within the meaning and
with the effect expressed in subsection (a) of this Section 12.1. In addition, any
outstanding Bonds shall, prior to the maturity or redemption date thereof, be deemed to
have been paid within the meaning and with the effect expressed in subsection (a) of this
Section 12.1 upon compliance with the provisions of subsection (c) of this Section 12.1.
(c) Subject to the provisions of subsection (d) of this Section 12.1. any
outstanding Bonds shall, prior to the maturity or redemption date thereof, be deemed to
have been paid within the meaning and with the effect expressed in subsection (a) of this
Section 12.1 if-
(i) in case any of said Bonds are to be redeemed on any date prior to
their maturity, the City shall have given to the Trustee irrevocable instructions
accepted in writing by the Trustee to give as provided in Section 4.5 notice of
redemption of such Bonds on said date;
(ii) there shall have been deposited with the Trustee either moneys in
an amount which shall be sufficient or Defeasance Securities, the principal of and
the interest on which when due will provide moneys which, together with the
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CHIC 1308968.4
moneys, if any, deposited with the Trustee at the same time, shall be sufficient, to
pay when due the principal or redemption price, if applicable, and interest due and
to become due on said Bonds on or prior to the redemption date or maturity date
thereof, as the case may be; and
(iii) in the event said Bonds do not mature, are not by their terms
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subject to redemption or, under the plan of refunding applicable thereto, are not to
be redeemed, in each case, within the next succeeding ninety (90) days, the City
shall have given the Trustee in form satisfactory to it irrevocable instructions to
give, as soon as practicable, by first -class mail, postage prepaid, to the owners of
such Bonds at their last addresses appearing on the books of the City kept at the
office of the Bond Registrar a notice that the deposit required by (ii) above has
been made with the Trustee and that said Bonds are deemed to have been paid in
accordance with this Section 12.1 and stating such maturity or redemption date
upon which moneys are to be available for the payment of the principal or
redemption price, if applicable, on said Bonds.
(d) Anything in this Indenture to the contrary notwithstanding, any moneys
held in trust for the payment and discharge of any of the Bonds which remain unclaimed
for one year after the date when such Bonds have become due and payable, either at their
stated maturity dates or by call for earlier redemption shall be repaid to the City, as its
absolute property and free from trust, and the Trustee shall thereupon be released and
discharged, with respect thereto and the Bondholders shall look only to the City for the
payment of such Bonds; provided, however, that before being required to make any such
payment to the City, the Trustee shall, at the expense of the City, (i) give to the owners of
such Bonds as to which any moneys remain unclaimed, by first class mail, postage
prepaid, at the last address of such owners appearing on the books of the City kept at the
office of the Bond Registrar and (ii) cause to be published one time in an Authorized
Newspaper, a notice that said moneys remain unclaimed and that, after a date named in
said notice, which date shall be not less than thirty (30) days after the date of the
publication of such notice, the balance of such moneys then unclaimed will be returned to
the City.
(e) Upon the payment or defeasance of all outstanding Bonds as provided in
this Article XII, the Trustee and the City shall execute a Satisfaction of Tax Lien
substantially in the form of Exhibit C hereto for all Parcels for which a satisfaction of tax
lien has not previously been delivered and the City shall file or cause to be filed such
Satisfaction of Tax Lien with the Recorder of Deeds of Kendall County, Illinois.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Severabilitv. If any provision of this Indenture shall be held or deemed to
be illegal, inoperative or unenforceable under applicable law or interpreted in such manner as to
j be prohibited by or be held invalid under such law, such provision shall be ineffective to the
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CHIC 1308968.4
l
extent of such prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Indenture.
Section 13.2 Notices .Except as otherwise provided in this Indenture, all notices,
certificates or other communications hereunder shall be sufficiently given and shall be deemed
given when personally delivered or mailed by certified mail, postage prepaid, or when sent by
telecopy (receipt confirmed by telephone) or telegram, addressed as follows:
If to the City:
United City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
Attention: Mayor and City Attorney
Telephone: 630 -553 -8534
Telecopier: 630 -553 -7575
If to the Trustee:
The Bank of New York Trust Company, N.A.
Two North LaSalle Street, Suite 1020
Chicago, Illinois 606026
Attention:
Telephone: 312 - 827 -8526 (Kristine Brutsman);
312- 827 -8557 (John Prendiville)
Telecopier: 312- 827 -8522
If to the Developer:
Pulte Homes
2250 Point Boulevard, Suite 401
Elgin, IL 60123
Attention: David Carrier and Matthew Cudney
Telephone: 847- 841 -3535 (David Carrier); 847 - 841 -3583 (Matthew Cudney)
Telecopier: 847 - 783 -0879 (David Carrier); 847 - 783 -0870 (Matthew Cudney)
If to the Purchaser:
William Blair & Company, L.L.C.
222 West Adams Street
Chicago, Illinois 60606
Attention: Peter J. Raphael
Telephone: 312-364-8386
Telecopier: 312-236-0174
Section 13.3 Holidays.If any date for the payment of an amount hereunder or the taking
of any other action required or permitted to be taken hereunder, is not a Business Day, then such
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CHIC 1308968.4
payment shall be due, or such action shall or may be taken, as the case may be, on the first
Business Day thereafter with the same force and effect as if done on the nominal date_ provided
in this Indenture.
Section 13.4 Execution of Countervarts.This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 13.5 Avvlicable Law.This Indenture shall be governed by and construed in
accordance with the internal laws of the State of Illinois.
Section 13.6 Immunity of Officers. Emvlovees. Elected Officials of Citv.No recourse
shall be had for the payment of the principal of or premium, if any, or interest on any of the
Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained
in this Indenture or any agreement supplemental hereto, against any past, present or future .
mayor, trustee or other officer, director, member, employee, attorney or agent of the City, or any
incorporator, officer, director, member, trustee, employee or agent of any successor corporation
or body politic, as such, either directly or through the City or any successor corporation or body
politic, under any rule of law or equity, statute or constitution or by the enforcement of any
assessment or penalty or otherwise, and all such liability of any such incorporators, officers,
directors, trustees, members, employees or agents, as such, is hereby .expressly waived and
released as a condition of and consideration for the execution of this Indenture and the issuance
of any of the Bonds.
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CHIC 1308968.4
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IN WITNESS WHEREOF, the United City of Yorkville, Illinois has caused these
presents to be signed in its name and on its behalf by its Mayor and its corporate seal to be
hereunto affixed and attested by its City Clerk and to evidence its acceptance of the trusts hereby
created The Bank of New York Trust Company, N.A. has caused these presents to be signed in
its name and on its behalf by its Authorized Officer, its official seal to be hereunto affixed and
the same to be attested by its Authorized Officer, all as of the day and year first above written.
UNITED CITY OF YORKVILLE, ILLINOIS
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B y :
Mayor
[SEAL]
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Attest:
By:
City Clerk
TIIE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee
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By:
Authorized Officer
[SEAL] j
Attest:
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By:
Authorized Officer
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CHIC 1308968.4
EXHIBIT A
UNITED CITY OF YORKVILLE
SPECIAL SERVICE AREA NUMBER 2005 -108
Lie al Descriation
PARCEL 1:
THAT PART OF THE WEST HALF OF SECTION 22, TOWNSHIP 37
NORTH, RANGE 7, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS
FOLLOWS: COMMENCING AT AN EXISTING IRON PIPE STAKE SAID TO BE OVER
THE ORIGINAL LOCATION OF A STONE IN THE CENTER LINE OF THE BRISTOL
AND OSWEGO ROAD, PREVIOUSLY DESCRIBED AS BEING 23.05 CHAINS WEST
AND NORTH 35 DEGREES 30 MINUTES WEST 11.02 CHAINS FROM THE SOUTHEAST
CORNER OF SAID SECTION 22; THENCE NORTH 34 DEGREES 59 MINUTES 00
SECONDS WEST, ALONG A LINE FORMING AN ANGLE OF 93 DEGREES 23 MINUTES j
07 SECONDS WITH THE CENTERLINE OF U.S. ROUTE 34, MEASURED FROM
NORTHEAST TO NORTHWEST, 2,054.60 FEET FOR POINT OF BEGINNING; THENCE
SOUTH 52 DEGREES 08 MINUTES 00 SECONDS WEST, 825.40 FEET; THENCE NORTH
38 DEGREES 06 MINUTES 00 SECONDS WEST, 1,803.88 FEET TO THE CENTER LINE
OF KENNEDY ROAD; THENCE NORTHEASTERLY ALONG SAID CENTER LINE,
1,581.49 FEET TO A POINT WHICH IS 350.0 FEET SOUTHWESTERLY OF, AS
MEASURED ALONG SAID CENTER LINE, THE MOST EASTERLY CORNER OF
BRISTOL LAKE SUBDIVISION; THENCE SOUTH 38 DEGREES 15 MINUTES 40
SECONDS EAST, 1,639.93 FEET TO A LINE DRAWN NORTH 52 DEGREES 45 MINUTES
17 SECONDS EAST FROM THE POINT OF BEGINNING; THENCE SOUTH 52 DEGREES
45 MINUTES 17 SECONDS WEST, 750.69 FEET TO THE POINT OF BEGINNING, IN
BRISTOL TOWNSHIP, KENDALL COUNTY, ILLINOIS.
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PARCEL 2:
THAT PART OF THE SOUTH HALF OF SECTION 15 AND THAT PART OF
THE NORTH HALF OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF THE
THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE
SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION, AS PER THE PLAT
THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT BOOK 10 AT PAGE 58
ON MAY 10, 1962; THENCE NORTHWESTERLY ALONG THE NORTHEASTERLY LINE
OF SAID SUBDIVISION 1988.0 FEET TO THE NORTHEASTERLY CORNER OF SAID
SUBDIVISION; THENCE NORTHWESTERLY ALONG A LINE MAKING AN ANGLE OF
180 DEGREES 13 MINUTES 25 SECONDS MEASURED COUNTER - CLOCKWISE FROM
THE LAST DESCRIBED COURSE, A DISTANCE OF 895.02 FEET TO AN EXISTING
IRON PIPE STAKE; THENCE EASTERLY ALONG AN OLD FENCE LINE FORMING AN
INTERIOR ANGLE OF 58 DEGREES 15 MINUTES 28 SECONDS WITH THE LAST
DESCRIBED COURSE, A DISTANCE OF 1298.88 FEET (19.68 CHAINS) TO AN IRON
PIPE STAKE HEREWITH PLACED; THENCE SOUTHEASTERLY ALONG AN OLD
ESTABLISHED LINE OF OCCUPATION FORMING AN INTERIOR ANGLE OF 124
DEGREES 23 MINUTES 38 SECONDS WITH THE LAST DESCRIBED COURSE A
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CHIC_1308968.4
DISTANCE OF 2185.47 FEET TO AN EXISTING IRON PIPE STAKE ON THE CENTER
LINE OF KENNEDY ROAD WHICH IS 1213.59 FEET NORTHEASTERLY FROM THE
POINT OF BEGINNING, AS MEASURED ALONG SAID CENTER LINE; THENCE
SOUTHWESTERLY ALONG SAID CENTER LINE 1213.59 FEET TO THE POINT OF
BEGINNING, IN THE TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS.
PARCEL 3:
THAT PART OF THE NORTH HALF OF SECTION 22, TOWNSHIP 37
NORTH, RANGE 7, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS
FOLLOWS: BEGINNING AT THE SOUTHEASTERLY CORNER OF BRISTOL LAKE
SUBDIVISION AS PER THE PLAT THEREOF FILED FOR RECORD AS DOCUMENT
137733 IN PLAT BOOK 10 AT PAGE 58 ON MAY 10, 1962; THENCE NORTHEASTERLY
ALONG THE CENTER LINE OF KENNEDY ROAD, WHICH MAKES AN ANGLE OF 88
DEGREES 58 MINUTES 47 SECONDS WITH THE NORTHEASTERLY LINE OF SAID
SUBDIVISION, MEASURED CLOCKWISE THEREFROM, A DISTANCE OF 1213.59
FEET; THENCE SOUTHERLY ALONG AN OLD EXISTING LINE OF OCCUPATION
FORMING AN INTERIOR ANGLE OF 94 DEGREES 54 MINUTES 43 SECONDS WITH
THE LAST DESCRIBED COURSE, A DISTANCE OF 1228.39 FEET; THENCE
SOUTHWESTERLY PARALLEL WITH THE AFORESAID CENTER LINE OF KENNEDY
ROAD, 1348.57; THENCE NORTHWESTERLY ALONG A LINE FORMING AN INTERIOR
ANGLE OF 88 DEGREES 37 MINUTES 37 SECONDS WITH THE LAST DESCRIBED
COURSE A DISTANCE OF 1224.23 FEET TO A POINT ON THE SOUTHEASTERLY LINE
OF SAID BRISTOL LAKE SUBDIVISION WHICH IS 0.46 FEET SOUTHWESTERLY
FROM THE POINT OF BEGINNING; THENCE NORTHEASTERLY ALONG SAID
SOUTHEASTERLY LINE 0.46 FEET TO THE POINT OF BEGINNING, IN THE
TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS (EXCEPTING THEREFROM
THAT LAND CONVEYED TO KENNETH D. DOTY, JR., IN DEED RECORDED AS
DOCUMENT NUMBER R85 -5973, DESCRIBED AS FOLLOWS: THAT PART OF THE
NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF
THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS: BEGINNING AT THE
SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION; THENCE
NORTHEASTERLY ALONG THE CENTER LINE OF KENNEDY ROAD, 299.54 FEET;
THENCE SOUTHEASTERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE,
287.11 FEET; THENCE SOUTHWESTERLY, AT RIGHT ANGLES TO THE LAST
DESCRIBED COURSE, 306.88 FEET TO THE EASTERLY LINE OF A TRACT OF LAND
CONVEYED TO HERBERT L. RUCKS BY A WARRANTY DEED RECORDED AUGUST
1, 1966 IN BOOK 149 ON PAGE 303; THENCE NORTHWESTERLY ALONG SAID
EASTERLY LINE TO A POINT ON SAID CENTER LINE WHICH IS 0.46 FEET
SOUTHWESTERLY OF THE POINT OF BEGINNING; THENCE NORTHEASTERLY
ALONG SAID CENTER LINE, 0.46 FEET TO THE POINT OF BEGINNING, IN BRISTOL
TOWNSHIP, KENDALL COUNTY, ILLINOIS).
PARCEL 4:
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CHIC 1308968.4
THAT PART OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF
THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT
THE SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION AS PER THE
PLAT THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT BOOK 10 AT
PAGE 58 ON MAY 10, 1962; THENCE NORTHEASTERLY ALONG THE CENTER LINE
OF KENNEDY ROAD WHICH MAKES AN ANGLE OF 88 DEGREES 58 MINUTES 47
SECONDS WITH THE NORTHEASTERLY LINE OF SAID SUBDIVISION, MEASURED
CLOCKWISE THEREFROM, A DISTANCE OF 1213.59 FEET; THENCE SOUTHERLY
ALONG AN OLD EXISTING LINE OF OCCUPATION FORMING AN INTERIOR ANGLE
OF 94 DEGREES 54 MINUTES 43 SECONDS WITH THE LAST DESCRIBED COURSE, A
DISTANCE OF 1228.39 FEET; THENCE SOUTHWESTERLY PARALLEL WITH THE
AFORESAID CENTER LINE OF KENNEDY ROAD, 1364.57 FEET FOR THE POINT OF
BEGINNING; THENCE NORTHEASTERLY ALONG THE LAST DESCRIBED COURSE
1348.57 FEET TO THE PENULTIMATE DESCRIBED POINT; THENCE
SOUTHEASTERLY ALONG A LINE FORMING AN INTERIOR ANGLE OF 94 DEGREES
54 MINUTES 43 SECONDS WITH THE LAST DESCRIBED COURSE, A DISTANCE OF
1402.38 FEET; THENCE SOUTHWESTERLY ALONG A LINE FORMING AN INTERIOR
ANGLE OF 84 DEGREES 52 MINUTES 28 SECONDS WITH THE LAST DESCRIBED
COURSE (BEING A LINE DRAWN PARALLEL WITH THE CENTER LINE OF U.S.
HIGHWAY ROUTE 34) A DISTANCE OF 2301.24 FEET; THENCE NORTHWESTERLY
ALONG A LINE DRAWN NORTH 35 DEGREES 30 MINUTES WEST FROM A POINT ON
THE SOUTHERLY LINE OF SAID SECTION 22 WHICH IS 23.03 CHAINS WEST OF THE
SOUTHEAST CORNER OF SAID SECTION 22 (SAID LINE FORMING AN INTERIOR
ANGLE OF 93 DEGREES 23 MINUTES 07 SECONDS WITH THE LAST DESCRIBED
COURSE) A DISTANCE OF 914.67 FEET; THENCE NORTHEASTERLY ALONG A LINE
FORMING AN INTERIOR ANGLE OF 92 DEGREES 15 MINUTES 44 SECONDS WITH
THE LAST DESCRIBED COURSE 877.73 FEET; THENCE NORTHWESTERLY ALONG A
LINE FORMING AN INTERIOR ANGLE OF 263 DEGREES I I MINUTES 34 SECONDS
WITH THE LAST DESCRIBED COURSE, A DISTANCE OF 392.38 TO THE POINT OF
j BEGINNING, IN THE TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS.
PARCEL 5:
THAT PART OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF
THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT
THE SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION AS PER THE
PLAT THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT BOOK 10,
PAGE 58 ON MAY 10, 1962; THENCE NORTHEASTERLY ALONG THE CENTER LINE
OF KENNEDY ROAD FORMING AN ANGLE OF 88 DEGREES 58 MINUTES 47
SECONDS WITH THE NORTHEASTERLY LINE OF SAID SUBDIVISION, MEASURED
CLOCKWISE THEREFROM, A DISTANCE OF 1213.59 FEET; THENCE SOUTHERLY
ALONG AN OLD EXISTING LINE OF OCCUPATION FORMING AN INTERIOR ANGLE
OF 94 DEGREES 54 MINUTES 43 SECONDS WITH THE LAST DESCRIBED COURSE,
2630.77 FEET FOR THE POINT OF BEGINNING; THENCE SOUTHEASTERLY ALONG
THE PROLONGATION OF THE LAST DESCRIBED COURSE 1142.51 FEET TO THE
CENTER LINE OF U.S. HIGHWAY ROUTE 34; THENCE SOUTHWESTERLY ALONG
SAID CENTER LINE FORMING AN INTERIOR ANGLE WITH THE LAST DESCRIBED
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CHIC 1308988.4
COURSE OF 84 DEGREES 52 MINUTES 28 SECONDS, 2336.0 FEET TO AN EXISTING
IRON PIPE STAKE SAID TO BE OVER THE ORIGINAL LOCATION OF A STONE IN THE
CENTER LINE OF THE ORIGINAL BRISTOL AND OSWEGO ROAD PREVIOUSLY
DESCRIBED AS BEING 23.05 CHAINS WEST AND THENCE NORTH 35 DEGREES 30
MINUTES WEST 11.02 CHAINS FROM THE SOUTHEAST CORNER OF SAID SECTION
22; THENCE NORTH 35 DEGREES 30 MINUTES WEST ALONG A LINE FORMING AN
INTERIOR ANGLE OF 93 DEGREES 23 MINUTES 07 SECONDS WITH THE LAST
DESCRIBED COURSE 1139.93 FEET TO A LINE DRAWN SOUTHWESTERLY
PARALLEL WITH SAID CENTER LINE OF SAID ROUTE NO. 34 FROM THE POINT OF
BEGINNING; THENCE NORTHEASTERLY ALONG SAID PARALLEL LINE FORMING
AN INTERIOR ANGLE OF 86 DEGREES 36 MINUTES 53 SECONDS WITH THE LAST
DESCRIBED COURSE 2301.24 FEET TO THE POINT OF BEGINNING, IN THE
TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS.
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL:
THAT PART OF THE SOUTH HALF OF SECTION 22, TOWNSHIP 37
NORTH, RANGE 7, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS
FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF LOT 27, IN BRISTOL
LAKE SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED AS
DOCUMENT 137733 IN PLAT BOOK 10, AT PAGE 58, ON MAY 10, 1962; THENCE
SOUTH 33 DEGREES 58 MINUTES 14 SECONDS EAST 33.00 FEET TO THE
CENTERLINE OF KENNEDY ROAD; THENCE NORTH 55 DEGREES 00 MINUTES 21
SECONDS EAST 299.54 FEET AS MEASURED ALONG SAID CENTERLINE; THENCE
SOUTH 34 DEGREES 59 MINUTES 39 SECONDS EAST 287.11 FEET; THENCE SOUTH
55 DEGREES 00 MINUTES 21 SECONDS WEST 306.92 FEET; THENCE SOUTH 33
DEGREES 37 MINUTES 35 SECONDS EAST 1,329.42 FEET; THENCE SOUTH 47
DEGREES 27 MINUTES 46 SECONDS EAST 1,247.97 FEET TO THE POINT OF
BEGINNING; THENCE SOUTH 34 DEGREES 46 MINUTES 42 SECONDS EAST 65.00
FEET; THENCE SOUTH 27 DEGREES 32 MINUTES 48 SECONDS EAST 238.32 FEET;
THENCE SOUTH 34 DEGREES 46 MINUTES 42 SECONDS EAST 588.35 FEET TO THE
NORTHERLY RIGHT OF WAY LINE OF U.S. ROUTE 34 PER GRANT DATED APRIL 13,
1923 AND RECORDED APRIL 18, 1923 IN BOOK 76, PAGE 82, AND BY GRANT DATED
APRIL 7, 1923 AND RECORDED APRIL 18, 1923 IN DEED RECORDED IN BOOK 76,
PAGE 30; THENCE SOUTH 55 DEGREES 12 MINUTES 58 SECONDS WEST 997.93 FEET
AS MEASURED ALONG SAID RIGHT OF WAY LINE; THENCE NORTH 38 DEGREES 09
MINUTES 48 SECONDS WEST 891.55 FEET; THENCE NORTH 55 DEGREES 13
MINUTES 34 SECONDS EAST 1,080.56 FEET TO THE POINT OF BEGINNING, ALL IN
KENDALL COUNTY, ILLINOIS.
PINS:
Parcel 1: 02 -22 -176 -004
Parcel 2: 02 -22 -127 -001 and 02 -15- 376 -001
Parcel 3: 02 -22- 251 -002
Parcel 4: 02 -22 -251 -002
Parcel 5: 02- 22-400 -001
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CHIC 308968.4
EXHIBIT B
UNITED STATES OF AMERICA
STATE OF ILLINOIS COUNTY OF KENDALL
UNITED CITY OF YORKVILLE
KENDALL COUNTY, ILLINOIS
SPECIAL SERVICE AREA NUMBER 2005 -108
SPECIAL TAX BOND
SERIES 2006
(AUTUMN CREEK PROJECT)
Bond No. Principal Amount: $
Date of Bond: , 2006 Interest Rate: %
CUSIP: Date of Maturity: March 1, 2036
Registered Owner: Cede & Co.
The United City of Yorkville, Kendall County, Illinois (the "C "), for value received,
j promises to pay to the Registered Owner specified above or registered assigns, upon presentation
and surrender of this bond at the office of The Bank of New York Trust Company, N.A.,
Chicago, Illinois, as Trustee (the " Trustee ") the Principal Amount of this bond specified above
on the Date of Maturity specified above and to pay the Registered Owner of this bond interest on
that sum at the Interest Rate per year specified above from the Date of Bond specified above to
the Date of Maturity specified above, payable semiannually on March 1 and September 1, with
the first interest payment date being September 1, 2006. Interest shall be computed on the basis
of a 360 -day year of twelve 30 -days months. Interest on this bond shall be payable on each
interest payment date by check or draft of the Trustee mailed to the person in whose name this
bond is registered at the close of business on the 15th day of the month preceding such interest
payment date. During such time as this bond is registered so as to participate in a securities
depository system with The Depository Trust Company (" principal of and interest on
this Bond shall be payable by wire transfer pursuant to instructions from DTC. The principal of,
interest on and redemption premium on this bond are payable in lawful money of the United
States of America. No interest shall accrue on this bond after its Date of Maturity unless this
bond shall have been presented for payment at maturity and shall not then have been paid.
This bond is one of an authorized issue of bonds in the aggregate principal amount of
$ . This bond and the issue of which it is a part (together, the " Bonds ") are
issued pursuant to the provisions of the "Special Service Area Tax Law," 35 ILCS §200/27 -5 et
seq., as amended, and the provisions of the Local Government Debt Reform Act, 30 ILCS
§350/1 et seq., as amended, and the principal of and interest on the Bonds are payable from
CHIC 1308968.4
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special taxes (the "Special Taxes ") levied on all taxable real property within the United City of
Yorkville Special Service Area Number 2005 -108 (the "Special Service Area ") pursuant to a
special tax roll.
The Bonds are being issued for the purpose of paying a portion of the costs of special
services to be provided to the Special Service Area, all as more fully described in an ordinance
adopted by the Mayor and City Council of the City on February 14, 2006 (the " Bond
Ordinance ") and a Trust Indenture dated as of March 1, 2006 between the City and the Trustee
(the "Indenture "), to all the provisions of which the holder by the acceptance of this bond
assents. Terms not otherwise defined herein shall have the meanings ascribed to such terms in
the Indenture. The Bonds, together with the interest thereon, are limited obligations of the City,
payable solely from the collection of the Special Taxes and other moneys deposited in certain
Funds and Accounts established pursuant to the Indenture. For the prompt payment of the
principal of and interest on this bond the Special Taxes are hereby irrevocably pledged. THE
BONDS DO NOT CONSTITUTE GENERAL OBLIGATIONS OF THE, CITY AND NEITHER
THE FULL FAITH AND CREDIT NOR THE UNLIMITED TAXING OWER OF THE CITY
SHALL BE PLEDGED AS SECURITY FOR THE PAYMENT OF THE BONDS.
The Bonds are subject to mandatory sinking fund redemption and final payment at a price
of par plus accrued interest, without premium, to the extent set forth in the Indenture and as
described below, on March 1, of the years and in the amounts as follows:
Year Amount
The City covenants that it will redeem the Bonds pursuant to the mandatory sinking fund
redemption requirements for the Bonds to the extent amounts are on deposit in the Bond and
Interest Fund.
The Bonds are also subject to optional redemption prior to maturity at the option of the
City, in whole or in part, on any date on or after March 1, 2016, at a redemption price (expressed
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CHIC 308968.4
as a percentage of the principal amount of the Bonds to be redeemed), as set forth below, plus
accrued and unpaid interest to the date of redemption:
Redemption Dates Redemption Prices
March 1, 2016 through 102%
February 28, 2017
March 1, 2017 through 101
February 28, 2018
March 1, 2018 and thereafter 100
Any optional redemption of Bonds shall be applied, to the extent possible, to reduce pro rata the
amount required to be redeemed by mandatory sinking fluid redemption pursuant to the
Indenture, and so as to maintain the proportion of principal maturing or subject to mandatory
sinking fund redemption in each year to the total original principal amount of Bonds.
The Bonds are also subject to mandatory redemption on any Interest Payment Date, in
part, at a redemption price equal to the principal amount to be redeemed, together with accrued
interest to the date fixed for redemption, without premium, from amounts in the Bond and
Interest Fund consisting of the proceeds received by the City in connection with a condemnation
of any of the special services or any other property owned by or dedicated to the City within the
Special Service Area and allocable to the Bonds as determined by the Consultant and which
proceeds are not used by the City to rebuild the Special Services to the extent so identified by the
City and as provided in the Indenture.
The Bonds are subject to redemption on any Interest Payment Date, in part, at a
redemption price equal to the principal amount to be redeemed, together with accrued interest to
the date fixed for redemption, without premium, from amounts transferred from the
Improvement Fund to the Bond and Interest Fund.
The Bonds are subject to mandatory redemption on any Interest Payment Date, in whole
or in part, at a redemption price equal to the principal amount to be redeemed, together with
accrued interest to the date fixed for redemption, without premium, in the event of a mandatory
prepayment of the Special Taxes upon a reduction in the Maximum Parcel Special Tax such that
the annual debt service coverage ratio calculated pursuant to Section VI G of the Special Tax
Roll and Report (as defined in the Indenture) is less than 110% as a result of a change in the
expected number of single family lots or townhome units to be built within the Special Service
Area or any other event that reduces the total of the Maximum Parcel Special Tax such that the
annual debt service coverage ratio calculated pursuant to Section VI G of the Special Tax Roll
and Report (as defined in the Indenture) is less than 110% as described in, and in the amounts set
forth in, Section VI G of the Special Tax Roll and Report.
The Bonds are also subject to mandatory redemption on any March 1, June 1, September
1 or December 1, in part, from amounts available for disbursement from the Special Redemption
Account and from amounts transferred from the Reserve Fund and the Capitalized Interest
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CHIC 1308968.4
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Account to the Special Redemption Account in connection with prepayments of the Special Tax,
at a redemption price (expressed as a percentage of the principal amount of the Bonds to be
redeemed), as set forth below, together with accrued interest on such Bonds to the date fixed for
redemption:
Redemption Dates Redemption Prices
On or prior to 103%
February 29, 2016
March 1, 2016 through 102
February 28, 2017
March 1, 2017 through 101
February 28, 2018
March 1, 2018 and thereafter 100
Any mandatory redemption of the Bonds in part from proceeds from condemnation,
proceeds transferred from the Improvement Fund to the Bond and Interest Fund or prepayments
of the Special Taxes shall be applied to reduce pro rata the amount of Bonds required to be I
redeemed by mandatory sinking fund redemption pursuant to the Indenture, and so as to maintain
the proportion of principal maturing or subject to mandatory sinking fund redemption in each
year to the total original principal amount of Bonds.
If less than all the Bonds of any maturity are to be redeemed on any redemption date, the
Bond Registrar named below will assign to each Bond of the maturity to be redeemed a
distinctive number for each $1,000 of principal amount of that Bond. The Bond Registrar will
then select by lot from the numbers so assigned, using such method as it shall deem proper in its
discretion, as many numbers as, at $1,000 per number, shall equal the principal amount of Bonds
of that maturity to be redeemed; provided that following any redemption, no Bonds shall be
outstanding in an amount less than the minimum Authorized Denomination except (a) as
necessary to effect the mandatory sinking fund redemption of Bonds as provided in the Indenture
or (b) to effect a special mandatory redemption from optional prepayments when the total
aggregate principal amount of the Bonds outstanding is $100,000 or less.
Notice of the redemption of any Bonds, which by their terms shall have become subject
to redemption, will be given to the Notice Beneficial Owners, as defined in the Indenture, and
the registered owner of each Bond called for redemption in whole or in part not less than 30 or
more than 60 days before any date established for redemption of Bonds, by the Bond Registrar,
on behalf of the City, by registered or certified mail sent to the registered owner's last address, if
any, appearing on the registration books kept by the Bond Registrar. All notices of redemption
shall include at least the designation, date and maturities of Bonds called for redemption, CUSIP
Numbers, if available, and the date of redemption. In the case of a Bond to be redeemed in part
only, the notice will also specify the portion of the principal amount of the Bond to be redeemed.
The mailing of the notice specified above to the registered owner of any Bond will be a condition
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CHIC 1308968.4
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precedent to the redemption of that Bond, provided that any notice which is mailed in accordance
with the Indenture will be conclusively presumed to have been duly given whether or not the
owner received that notice. The failure to mail notice to the owner of any Bond, or any defect in
that notice, shall not affect the validity of the redemption of any other Bonds.
This bond is negotiable, subject to the following provisions for registration and
registration of transfer. The City maintains books for the registration and registration of transfer
of Bonds at the office of the Trustee, as Bond Registrar. This bond is fully registered on those
books in the name of its owner, as to both principal and interest, and transfer of this bond may be
registered on those books upon surrender of this bond to the Bond Registrar by the registered
owner or his or her attorney duly authorized in writing together with a written instrument of
transfer satisfactory to the Bond Registrar duly executed by the registered owner or his or her
duly authorized attorney. Upon surrender of this bond for registration of transfer, a new bond or
bonds in the same aggregate principal amount and of the same maturity will be issued to the
transferee as provided in the Indenture.
This bond may be exchanged, at the option of the Registered Owner, for an equal
aggregate principal amount of bonds of the same maturity of any other Authorized
Denominations, upon surrender of this bond at the office of the Bond Registrar with a written
instrument of transfer satisfactory to the Bond Registrar duly executed by the Registered Owner
or his or her duly authorized attorney.
For every exchange or registration of transfer of this bond, the City or the Bond Registrar
may make a charge sufficient to reimburse it for any tax, fee or other governmental charge, other
than one imposed by the City, required to be paid with respect to that exchange or registration of
transfer, and payment of that charge by the person requesting exchange or registration of transfer
shall be a condition precedent to that exchange or registration of transfer. No other charge may
be made by the City or the Bond Registrar as a condition precedent to exchange or registration of
transfer of this bond.
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The Bond Registrar shall not be required to exchange or register the transfer of any Bond
following the close of business on the 15th day of the month preceding any interest payment date
on such Bond, nor to transfer or exchange any Bond after notice calling such Bond for
redemption has been mailed, nor during a period of 15 days next preceding mailing of a notice of
redemption of any Bonds.
The City, the Trustee and the Bond Registrar may deem and treat the registered owner of
this bond as its absolute owner, whether or not this bond is overdue, for the purpose of receiving
payment of the principal of or interest on this bond and for all other purposes, and neither the
City, the Bond Registrar nor the Trustee shall be affected by any notice to the contrary. Payment
of the principal of and interest on this bond shall be made only to its registered owner, and all
such payments shall be valid and effective to satisfy the obligation of the City on this bond to the
extent of the amount paid.
All conditions which by law must have existed or must have been fulfilled in the issuance
of this bond existed and were fulfilled in compliance with law. Provision has been made for the
levy, collection and segregation of the Special Taxes sufficient to pay and discharge the principal
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CHIC 1308968.4
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of this bond at maturity and to pay interest on this bond as it falls due. The issuance of the
Bonds by the City will not cause the City to exceed or violate any applicable limitation or
condition respecting the issuance of bonds imposed by the law of the State of Illinois or by any
indenture, ordinance or resolution of the City. The Bonds are issued for purposes for which the
City is authorized by law to issue bonds including but not limited to the payment of a portion of
the costs of the special services to be provided to the Special Service Area, making deposits to a
reserve fund, administrative expense fund and a capitalized interest account, and paying costs of
the City in connection with the issuance of the Bonds.
This bond shall not be valid for any purpose unless and until the certificate of
authentication on this bond shall have been duly Y executed b the Trustee.
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CHIC 308968.4
IN WITNESS WHEREOF, the United City of Yorkville, Kendall County, Illinois, by its
Mayor and City Council, has caused this bond to be executed by the manual or facsimile
signature of its Mayor and attested by the manual or facsimile signature of its City Clerk and has
caused its corporate seal to be affixed to this bond (or a facsimile of its seal to be printed on this
bond), all as of the Date of Bond specified above.
UNITED CITY OF YORKVILLE, ILLINOIS
By:
Mayor
(SEAL)
ATTEST:
City Clerk
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CHIC 1308968.4
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CERTIFICATE OF AUTHENTICATION
Date of Authentication:
This bond is one of the bonds described in the Indenture authorizing the issuance of
$ United City of Yorkville, Kendall County, Illinois Special Service Area
Number 2005 -108 Special Tax Bonds, Series 2006 (Autumn Creek Project).
THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee
By:
Authorized Officer
FORM OF ASSIGNMENT
For Value Received, the undersigned sells, assigns and transfers to
this bond and all rights and title under this bond, and irrevocably constitutes and appoints
attorney to transfer this bond on the books kept for registration of
this bond.
Dated:
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CHIC 1308968.4
EXHIBIT C
(The Above Space For Recorder's Use Only)
This Document was
prepared by and after
recording return to:
[Insert name and address
of Trustee]
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SATISFACTION OF TAX LIEN
The undersigned duly elected and acting Mayor of the United City of Yorkville, Kendall
County, Illinois (the "C "), in consideration of the receipt of the sum of $ , hereby
acknowledges and certifies that special taxes levied and to be extended in accordance with the
Special Tax Roll approved by the Mayor and City Council of the City pursuant to Ordinance No.
2006- (the "Establishim Ordinance ") are paid and the lien of such taxes satisfied with
respect to the following lots in the City's Special Service Area Number 2005 -108 (the "
legally described on Exhibit A attached hereto:
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Lot PIN
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The undersigned further certifies that pursuant to Exhibit B of the United City of
Yorkville Special Service Area Number 2005 -108 Special Tax Roll and Report attached to and
incorporated in the Establishing Ordinance as Exhibit E (the "Special Tax Roll and Report"), j
upon payment of the prepayment amount as calculated pursuant to the Special Tax Roll and
Report, the Consultant shall cause the satisfaction of tax lien to be recorded within 30 working
days of receipt of prepayment.
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Dated:
UNITED CITY OF YORKVILLE
By:
Title:
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CHIC 1308968.4
Approved by:
DAVID TAUSSIG & ASSOCIATES, INC.
By:
Title:
The Trustee hereby acknowledges receipt of the sum of $
as Trustee
By:
Title:
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CHIC 1308968.4
STATE OF ILLINOIS )
SS.
COUNTY OF )
I, , a Notary Public in and for such County and State
aforesaid, do hereby certify that , personally known to me
to be the Mayor of the United City of Yorkville, Illinois, whose name is subscribed to the
foregoing Satisfaction, appeared before me this day in person and acknowledged that as such
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officer he signed and delivered the foregoing Satisfaction as such officer of the United City of
Yorkville, Illinois, as his free and voluntary act, and as the free and voluntary act and deed of
such City, for the uses and purposes therein set forth.
Given under my hand and notarial seal, this day of ,
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Notary Public
Commission expires:
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CHIC 1308968.4
}
EXHIBIT D
DISBURSEMENT REOUEST
TO: The Bank of New York Trust Company, N.A., as Trustee
Two North LaSalle Street, Suite 1020
Chicago, Illinois 60606
RE. $
United City of Yorkville
Kendall County, Illinois
Special Service Area Number 2005 -108
Special Tax Bonds, Series 2006
(Autumn Creek Project)
Amount Requested: j
Total Disbursements to Date:
1. Each obligation for which a disbursement is hereby requested is described in reasonable
detail in Schedule I hereto together with the name and address of the person, firm, or
corporation to whom payment is due, which may include the Developer for
reimbursement of amounts expended, and any other payment instructions.
2. The bills, invoices, or statements of account for each obligation referenced in Schedule I
are attached hereto as Schedule II.
3. The Issuer hereby certifies that:
a. This written requisition is for payment of costs in connection with the issuance of
the above - referenced Bonds and the specific purpose for which this request is
made is described in Schedule I.
b. The disbursement is for payment of a Special Service.
C. Such Special Service has been completed in accordance with the terms of the
Public Infrastructure Agreement.
d. Payment instructions sufficient to make the requested payment are set forth in
Schedule I.
e. No portion of the amount being requested to be disbursed was set forth in any
previous request for disbursement.
f. As a condition to the disbursement, the Title Company shall issue an endorsement
to the title policy in the amount requested to be disbursed.
CHIC_1308968.4
4. All capitalized terms herein shall have the meanings assigned to them in the Trust
Indenture for the above- referenced Bonds dated as of March 1, 2006 (the "Trust
Indenture ") by and between the United City of Yorkville, Kendall County, Illinois and
The Bank of New York Trust Company, N.A., as Trustee.
By:
Authorized Officer
cc: David Taussig & Associates
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CHIC_1308968.4
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EXHIBIT E
CONTINUING DISCLOSURE AGREEMENT
$
UNITED CITY OF YORKVILLE
KENDALL COUNTY, ILLINOIS
SPECIAL SERVICE AREA NUMBER 2005 -108
SPECIAL TAX BONDS, SERIES 2006
(AUTUMN CREEK PROJECT)
This Continuing Disclosure Agreement (the "Agreement ") is executed and delivered by
the United City of Yorkville, Kendall County, Illinois (the "C ") and
with its principal office at as Dissemination Agent (the "Dissemination Agent ")
in connection with the issuance by the City of $ aggregate principal amount of
Special Service Area Number 2005 -108 Special Tax Bonds, Series 2006 (Autumn Creek Project)
(the " Bonds "). The Bonds are being issued pursuant to a Trust Indenture dated as of March 1,
2006 between the City and The Bank of New York Trust Company, N.A., as trustee (the
"Indenture "). The City and the Dissemination Agent covenant and agree as follows:
Section 1. Purnose of the Agreement. This Agreement is being executed and
delivered by the City and the Dissemination Agent for the benefit of the holders and Beneficial
Owners of the Bonds and in order to assist the Participating Underwriter in complying with
S.E.C. Rule 15c2- 12(b)(5).
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Section 2. Definitions. In addition to the definitions set forth in the Indenture, which
apply to any capitalized term used in this Agreement unless otherwise defined in this Section, the
following capitalized terns shall have the following meanings:
"Annual Report" shall mean any Annual Report provided by an Obligated Person
pursuant to, and as described in, Sections 3 and 4 of this Agreement.
"Beneficial Owner" shall mean any person which (a) has the power, directly or indirectly,
to vote or consent with respect to, or to dispose of ownership of, any Bonds (including persons
holding Bonds through nominees, depositories or other intermediaries), or (b) is treated as the
owner of any Bonds for federal income tax purposes.
"Disclosure Renresentative" shall mean the City Administrator or his or her designee, or
such other officer or employee as the City shall designate in writing to the Dissemination Agent
from time to time.
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"Dissemination Agent" shall mean initially or any successor Dissemination
Agent appointed by the City pursuant to Section 7 of this Agreement to serve as Dissemination
Agent and which has filed with the City a written acceptance of such designation.
"Listed Events" shall mean any of the events listed in Section 5 of this Agreement.
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CHIC 308968.4
"National Renositorv" or "NRMSIR" shall mean any Nationally Recognized Municipal
Securities Information Repository for purposes of the Rule, The National Repositories currently
approved by the Securities and Exchange Commission are set forth in Exhibit A.
"Obligated Person" shall mean the City.
"Participating Underwriter" shall mean any of the original underwriters of the Bonds and
any remarketing agent approved in writing by the City who is retained by the City to remarket
the Bonds and who is required to comply with the Rule in connection with the remarketing of the
Bonds.
"Repositorv" shall mean each National Repository and each State Repository.
" Rule " shall mean Rule 15c2- 12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from time
to time.
"State Repository" shall mean any public or private repository or entity designated by the
State of Illinois as a state repository for the purpose of the Rule and recognized as such by the
Securities and Exchange Commission. As of the date of this Agreement, there is no State
Repository.
Section 3. Provision of Annual. Reports.
(a) Within 210 days after the end of each fiscal year of the Obligated Person
(which currently ends 1, commencing with the first fiscal year after the Rule
becomes applicable to the Bonds, the Obligated Person shall, or shall cause the
Dissemination Agent to, provide to each Repository, an Annual Report which is
consistent with the requirements of Section 4 of this Agreement. The Annual Report may
be submitted as a single document or as separate documents comprising a package, and
may cross - reference other information as provided in Section 4 of this Agreement,
provided that the audited financial statements of the Obligated Person may be submitted
separately from the balance of the Annual Report and later than the date required above
for the filing of the Annual Report if they are not available by that date. If the Obligated
Person's fiscal year changes, it shall give notice of such change in the same manner as for
a Listed Event under Section 5 of this Agreement.
(b) Not later than ten (10) business days prior to the date required in
subsection (a), the Obligated Person shall provide the Annual Report to the
Dissemination Agent. If the Obligated Person is unable to provide to the Repositories an
Annual Report by the date required in subsection (a), the Dissemination Agent shall send
a notice to the State Repository, if any, and to each National Repository or the Municipal
Securities Rulemaking Board in substantially the form attached as Exhibit B.
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CHIC_1306968.4
(c) The Dissemination Agent shall:
(i) determine each year, prior to the date for providing the Annual
Report the name and address of each National Repository and State
Repository, if any, and
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(ii) file a report with the Obligated Person certifying that the Annual
Report has been provided pursuant to this Agreement, stating the
date it was provided and listing all the Repositories to which it was
provided.
Section 4. Content of Annual Renorts. The City's Annual Report shall contain or
incorporate by reference the following items:
(a) The City's audited financial statements for the prior fiscal year, prepared
in accordance with generally accepted auditing standards and the standards for financial
audits contained in Government Auditing Standards (1988 Revision), issued by the
Comptroller General of the United States. The City may from time to time, in order to
comply with federal or State legal requirements, modify the basis upon which its
financial statements are prepared. Notice of any such modification shall be provided to
(i) either each NRMSIR or the Municipal Securities Rulemaking Board and (ii) the State
Repository, if any, and shall include a reference to the specific federal or State law or
regulation describing such accounting basis. If the City's audited financial statements are
not available by the time the Annual Report is required to be filed pursuant to
Section 1(a), the Annual Report shall contain unaudited financial statements and the
audited financial statements shall be filed in the same manner as the Annual Report when
j they become available.
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If a change is made to the basis on which financial statements are prepared, the
annual financial information for the year in which the change is made shall present a
comparison between the financial statements or information prepared on the basis of the
new accounting principles and those prepared on the basis of the former accounting
principles. Such comparison shall include a qualitative and, to the extent reasonably
feasible, quantitative discussion of the differences in the accounting principles and the
impact of the change in the accounting principles on the presentation of the financial
information.
(b) The Annual Report shall include financial information and operating data
relating to the City updating the financial information and operating data presented in the
Limited Offering Memorandum dated , 2006 relating to the Bonds (the
"Offering Memorandum ") under the following captions (provided, however, that the
updating information may be provided in such format as the City deems appropriate; and
provided further, that if a new disclosure document is prepared at or prior to the time the
Rule becomes applicable to the Bonds, the City and the Participating Underwriters, who
are subject to the Rule, may select such other financial information and operating data
presented in such disclosure document in addition to, or in lieu of, the information
described below):
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CHIC 1308968.4
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"DEBT SERVICE REQUIREMENTS —
— Expected Special Tax and Debt Service Coverage"
[adjusted to reflect actual debt service and debt service
reserve earnings]
"SECURITY AND SOURCE OF PAYMENT FOR THE BONDS —
Representative Property Taxes"
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"THE CITY —
— General Description — the estimated population and median family income
statistics; major employers in the county; average annual unemployment
rates; median home values
— Number of Residential Building Permits"
— [Equalized Assessed Value "]
If the City changes its fiscal year, the City shall send, or cause to be sent, notice of
such change to (A) either each NRMSIR or the Municipal Securities Rulemaking Board
and (B) the National Repository, if any.
(c) The Annual Report shall include a copy of the Trustee's annual report
pursuant to Section 10.9 of the Indenture showing the Special Taxes received, and all
disbursements from the Funds and Accounts administered by the Indenture, including the
balances in all Funds and Accounts relating to the Bonds and the Special Services as of
the end of such fiscal year.
(d) The Annual Report shall include a copy of the semi - annual reports
regarding collection of taxes, delinquencies, tax sales and foreclosures delivered by the
Consultant pursuant to Section of the Agreement for Administrative Services for
the prior fiscal year.
Any or all of the items listed above may be incorporated by specific reference to other
documents, including official statements of debt issues of the City or related public entities,
which have been submitted to each of the Repositories or the Securities and Exchange
Commission. If the document incorporated by reference is a final official statement, it must be
available from the Municipal Securities Rulemaking Board. The City shall clearly identify each
such other document so incorporated by reference.
The City will also provide, or cause to be provided, in a timely manner, to (i) either each
NRMSIR or the Municipal Securities Rulemaking Board and (ii) the National Repository, if any,
notice of a failure to satisfy the requirements of this Section.
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CHIC 1308968.4
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Section 5. Reporting of Significant Events.
(a) Pursuant to the provision of this Section 5, the Dissemination Agent shall
give, or cause to be given, notice of the occurrence of any of the following events with
respect to the Bonds, if material:
(i) Principal or interest payment delinquencies,
(ii) Non - payment related defaults,
(iii) Modification to rights of owners of the Bonds,
(iv) Optional, contingent or unscheduled calls of the Bonds,
(v) Defeasances,
(vi) Rating Changes,
(vii) Adverse tax opinions or events affecting the tax- exempt status of
the Bonds,
(viii) Unscheduled draws on any reserve fund for the Bonds reflecting
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financial difficulties,
(ix) Unscheduled draws on any credit enhancements reflecting
financial difficulties,
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failure to perform,
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(xi) Release, substitution or sale of property (other than the sale of
homes in the ordinary course) securing repayment of the Bonds.
(b) The Dissemination Agent shall, within one business day of obtaining
actual knowledge of the occurrence of any of the Listed Events, contact the Disclosure
Representative, inform such person of the event and request that the City promptly notify
the Disseminating Agent in writing whether or not to report the event pursuant to
subsection (f).
(c) Whenever the Obligated Person obtains knowledge of the occurrence of a
Listed Event, whether because of notice from the Dissemination Agent pursuant to
subsection (b) or otherwise, the Obligated Person shall as soon as possible determine if
such event would be material under applicable federal securities laws.
(d) If the Obligated Person determines that knowledge of the occurrence of a
Listed Event would be material under applicable federal securities laws, the Obligated
Person shall promptly notify the Dissemination Agent in writing. Such notice shall
! instruct the Dissemination Agent to report the occurrence pursuant to subsection (f).
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CHIC 1308968.4
(e) If in response to a request under subsection (b), the City determines that
the Listed Event would not be material, the City shall so notify the Dissemination Agent
in writing and instruct the Dissemination Agent not to report the occurrence pursuant to
subsection (f).
(f) If the Dissemination Agent has been instructed by the City to report the
occurrence of a Listed Event, the Dissemination Agent shall file a notice of such
occurrence with the State Repository, if any, and the Municipal Securities Rulemaking
Board or each National Repository. Notwithstanding the foregoing, notice of Listed
Events described in subsections (a)(4) and (5) need not be given under this subsection
any earlier than the notice, if any, of the underlying event is given to holders of affected
Bonds pursuant to the Indenture.
(g) Any filing made or notice provided by the Obligated Person or the
Dissemination Agent in accordance with this Agreement to a Central Post Office by
electronic or other means shall satisfy the requirements of this Agreement with respect to
filings required to be made to each and every NRMSIR and the Obligated Person or
Dissemination Agent shall not be required to make separate filings with any of the
NRMSIRs.
Any required filing under this Agreement to any of the NRMSIRs as set forth in
this section (g) may be made solely by transmitting such filing to the Texas Municipal
Advisory Council (the "MAC ") "Post Office" as provided at
http: / /www.disclosureusa.org unless the United States Securities and Exchange
Commission has withdrawn the interpretive advice in its letter to the MAC dated
September 7, 2004.
Section 6. Termination of Revorting Obligation. The Obligated Person's obligations
under this Agreement shall terminate upon the legal defeasance, prior redemption or payment in
j full of all of the Bonds. If such termination occurs prior to the final maturity of the Bonds, the
Obligated Person shall give notice of such termination in the same manner as for a Listed Event
under Section 5.
Section 7. Dissemination Agent. The Obligated Person may, from time to time,
appoint or engage a Dissemination Agent to assist it in carrying out its obligations under this
Agreement and may discharge any such Dissemination Agent, with or without appointing a
successor Dissemination Agent. The Dissemination Agent shall not be responsible in any
manner for the content of any notice or report prepared by an Obligated Person pursuant to this
Agreement.
Section 8. Amendment. Waiver. Notwithstanding any other provision of this
Agreement, the Obligated Person and the Dissemination Agent may amend this Agreement (and
the Dissemination Agent shall agree to any amendment so requested by the Obligated Person),
and any provision of this Agreement may be waived, provided that the following conditions are
satisfied:
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CHIC_1308968.4
(a) If the amendment or waiver relates to the provisions of Sections 3(a), 4 or
5(a), it may only be made in connection with a change in circumstances that arises from a
change in legal requirements, change in law, or change in the identity, nature or status of
an obligated person with respect to the Bonds;
(b) The undertaking, as amended or taking into account such waiver, would
not in the opinion of nationally recognized bond counsel or counsel expert in federal
securities law in and of itself cause the undertakings therein to violate the Rule, taking
into account any subsequent change in or official interpretation of the Rule.
In the event of any amendment or waiver of a provision of this Agreement, the Obligated
Person shall describe such amendment in the next Annual Report, and shall include, as
applicable, a narrative explanation of the reason for the amendment or waiver and its impact on
the type (or in the case of a change of accounting principles, on the presentation) of financial
information or operating data being presented by the Obligated Person.
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Section 9. Additional Information. Nothing in this Agreement shall be deemed to
prevent the Obligated Person from disseminating any other information, using the means of
dissemination set forth in this Agreement or any other means of communication, or including
any other information in any Annual Report or notice of occurrence of a Listed Event, in
addition to that which is required by this Agreement. If the Obligated Person chooses to include
any information in any Annual Report or notice of occurrence of a Listed Event in addition to
that which is specifically required by this Agreement, the Obligated Person shall have no
obligation under this Agreement to update such information or include it in any future Annual
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Report or notice of occurrence of a Listed Event.
Section 10. Default If the Obligated Person or the Dissemination Agent fails to
comply with any provision of this Agreement, the Dissemination Agent or any holder or
Beneficial Owner of Bonds may take' such actions as may be necessary and appropriate,
including seeking mandate or specific performance by court order, to cause the Obligated Person
or the Dissemination Agent to comply with its obligations under this Agreement. A default
under this Agreement shall not be deemed a default under the Indenture and the sole remedy
under this Agreement in the event of any failure of the Obligated Person or the Dissemination
Agent to comply with this Agreement shall be an action to compel performance.
Section 11. Duties. Immunities and Liabilities of Dissemination Agent. The
Dissemination Agent shall have only such duties as are specifically set forth in this Agreement
and the Obligated Person, to the extent permitted by law, agrees to indemnify and save the
Dissemination Agent, its officers, directors, employees and agents, harmless against any loss,
expense and liabilities which it may occur arising out of or in the exercise or performance of its
powers and duties hereunder, including the costs and expenses (including attorneys fees) of
defending against any claim of liability, but excluding liabilities due to the Dissemination
Agent's negligence or willful misconduct. The obligations of the Obligated Person under this
Section shall survive resignation or removal of the Dissemination Agent and payment of the
Bonds.
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CHIC 1308968.4
Section 12. Beneficiaries. This Agreement shall inure solely to the benefit of the
Obligated Person, the Dissemination Agent, the Participating Underwriter and the holders and
Beneficial Owners of the Bonds, and shall create no rights in any other person or entity.
Section 13. Countemarts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original, but such
counterparts shall together constitute but one and the same instrument.
[The rest of this page is intentionally left blank.]
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Date: , 200
UNITED CITY OF YORKVILLE
By.
Title:
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as Dissemination
j Agent
By:
Title:
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CHIC 1308968.4
EXHIBIT A
Nationally Recognized Municipal Securities Information Repositories approved by the
Securities and Exchange Commission as of the date of this Agreement:
Bloomberg Municipal Repository
100 Business Park Drive
Skillman, New Jersey 08558
Phone: (609) 279 -3225
Fax: (609) 279 -5962
E -mail: Munis @Bloomberg.com
DPC Data Inc.
One Executive Drive
Fort Lee, New Jersey 07024
Phone: (201) 346 -0701
Fax: (201) 947 -0107
E -mail: nrmsir @dpcdata.com
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FT Interactive Data
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CHIC_1308968.4
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EXHIBIT B
NOTICE OF FAILURE TO FILE ANNUAL REPORT
Name of Obligated Person: United City of Yorkville, Kendall County, Illinois
Name of Bond Issue: $ Special Service Area Number 2005 -108
Special Tax Bonds, Series 2006 (Autumn Creek Project)
Date of Issuance: , 2006
NOTICE IS HEREBY GIVEN that as an Obligated Person under Rule 15c2-
12(b)(5) has not provided an Annual Report with respect to the above -named Bonds as required
by the Indenture authorizing the issuance of the Bonds. The Obligated Person anticipates that
the Annual Report will be filed by
Dated:
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Dissemination Agent
By:
Title:
CHIC 1308968.4
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Exhibit C
Bond Purchase Agreement
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CH12 603856.3
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United City of Yorkville
Kendall County, Illinois
Special Service Area Number 2005 -108
Special Tax Bonds, Series 2006 (Autumn Creek Project)
BOND PURCHASE AGREEMENT
,2006
United City of Yorkville, Illinois Pulte Home Corporation
800 Game Farm Road 2250 Point Boulevard, Suite 401
Yorkville, Illinois 60560 Elgin, Illinois 60123
Ladies and Gentlemen:
The undersigned, William Blair & Company L.L.C. (the "Purchaser "), offers to enter into
the following agreement (this "Contract") with the United City of Yorkville, Illinois (the "City "),
which upon acceptance by both the City and by the Developer (as defined below) will be binding
upon each of the City, the Developer and the Purchaser. Capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the Indenture (as hereinafter
defined) and the Limited Offering Memorandum (as hereinafter defined).This offer is made
subject to acceptance by the City and by the Developer on or before 1:00 P.M., Chicago time, on
the date hereof, and, if not so accepted, will be subject to withdrawal by the Purchaser upon
notice delivered to the City and the Developer at the addresses set forth above at any time prior
to the acceptance hereof by the City and the Developer. This offer is also subject to the
following provisions:
1. Definitions.
For purposes of this Contract, the following terms have the meanings specified in this
section, unless another meaning is plainly intended:
(A) "Act" means the Special Service Area Tax Law of the State of Illinois, 35
ILCS 200/27 -5 et seq., as amended.
(B) "Ancillary Documents" means the Bond Ordinance, the Indenture, the Tax
Agreement, the Limited Offering Memorandum, the Public Infrastructure Agreement, the
Annexation Agreement and the Declaration of Consent (all as hereinafter defined) and all other
agreements and certificates executed and delivered in connection with the issuance and sale of
the Bonds.
(C) "Annexation Agreement" means the Annexation Agreement and Planned
Development Agreement dated as of April 12, 2005, by and among the City and the Developer.
(D) "Appraisal" means the Market Value Appraisal dated as of ,
2006 prepared by
(E) "Area" means the United City of Yorkville Special Service Area Number
2005 -108 created pursuant to the Establishing Ordinance.
(F) "Bond Ordinance" means Ordinance No. adopted by the
corporate authorities of the City on , 2006 relating to the Bonds.
(G) "Bonds" means the interest - bearing, tax exempt obligations issued by the
City pursuant to the Bond Ordinance and called the United City of Yorkville, Kendall County,
Illinois, Special Service Area Number 2005 -108 Special Tax Bonds, Series 2006 (Autumn Creek
Project) in the aggregate principal amount of $15,000,000.
(H) "Business Day" means any day other than a Saturday, Sunday, legal
holiday or a day on which banking institutions are required or authorized by law to be closed in
the City of Chicago or the State of Illinois or a day on which the New York Stock Exchange is
closed.
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(I) "City" means the United City of Yorkville, Kendall County, Illinois.
(J) "Closing" means the Closing as defined in Section 2(B) herein held on the
Closing Date.
(K) "Closing Date" means , 2006 or such earlier or later date as
the City, the Developer and the Purchaser shall mutually agree upon, and refers to the date on
which the transaction by which the City causes the Trustee to deliver the Bonds to the Purchaser j
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and the Bonds are paid for by the Purchaser pursuant to this Contract.
(L) "Code" means the Internal Revenue Code of 1986, as amended.
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(M) "Contract" means this Bond Purchase Agreement.
(N) "Declaration of Consent" means the Declaration of Consent of the
Developer relating to the creation of the Area and the imposition of the Special Taxes.
(0) "Developer" means Pulte Home Corporation, a Michigan corporation.
(P) "Developer Information" means the information in the Limited Offering
Memorandum under the captions "INTRODUCTORY STATEMENT" (except the penultimate
paragraph therein); "THE BONDS'; "PLAN OF FINANCE "; "SECURITY AND SOURCE OF
PAYMENT FOR THE BONDS'; "SUMMARY OF THE PUBLIC INFRASTRUCTURE
AGREEMENT"; "SUMMARY OF ANNEXATION AGREEMENT AND PLANNED
DEVELOPMENT AGREEMENT "; "THE SPECIAL SERVICE AREA AND SPECIAL TAX";
"PROPOSED DEVELOPMENT"; "RISK FACTORS"; "CONTINUING INFORMATION -The
Developer"; "NO LITIGATION — The Developer"; and Appendices A, D and E attached thereto.
(Q) "Establishing Ordinance" means Ordinance No. adopted by
the corporate authorities of the City on establishing the United City of
Yorkville, Illinois Special Service Area Number 2005 -108.
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(R) "Governmental Body" means any federal, state, municipal, or other
governmental department, commission, board, bureau, agency or instrumentality, domestic or
foreign.
(S) "Indenture" means the Trust Indenture dated as of March 2006
between the City and the Trustee and any amendments and supplements thereto, pursuant to
which the Bonds will be issued.
(T) "Limited Offering Memorandum" means the Limited Offering
Memorandum of the City and the Developer (including each Appendix thereto) relating to the
Bonds dated March 2006.
(U) "Market Absorption Study" means the study entitled "Management
Decision Report, Absorption Analysis" dated as of January 2006 prepared by Metrostudy.
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(V) "Notice Beneficial Holders" has the meaning given m the Indenture.
(W) "Plans" means the plans and specifications pursuant to which the Project
will be constructed.
(X) "Pledged Funds" means the Special Tax and the moneys and funds
pledged to the payment of the Bonds pursuant to the Bond Ordinance and Indenture.
(Y) "Project" means the development of 317 single family detached homes,
and 258 townhomes proposed by the Developer for the Area.
(Z) "Proposing Ordinance" means Ordinance No. 2005 -101 adopted by the
corporate authorities of the City on December 27, 2005 proposing to establish the United City of
Yorkville, Illinois Special Service Area Number 2005 -108.
(AA) "Public Infrastructure Agreement" means the Public Infrastructure
Agreement and all schedules and exhibits thereto made as of 2006 by and
between the City and the Developer.
(BB) "Purchaser" means William Blair & Company L.L.C.
(CC) " Pulte" means Pulte Home Corporation, a Michigan corporation.
(DD) "Special Services" means the acquisition and construction of certain
public improvements to be constructed by the Developer and dedicated to the City, which are as
defined and further described in the Limited Offering Memorandum.
(EE) "Tax Agreement" means the Tax Compliance Certificate and Agreement
dated the Closing Date, executed by the City and the Trustee in connection with the Bonds.
(FF) "Trustee" means the Bank of New York Trust Company, N.A., as Trustee
under the Bond Ordinance.
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2. Purchase and Sale of the Bonds.
(A) Sale of Bonds. Upon the terms and conditions and upon the basis of the
representations, warranties and agreements herein, the Purchaser hereby agrees to purchase from
the City for a limited offering, and the City hereby agrees to sell to the Purchaser for such
purpose, all, but not less than all, of the $15,000,000 aggregate principal amount of Bonds, at a
purchase price equal to $ , which reflects an Underwriter's discount of
$ . The Bonds shall be due on March 1, 2036, and shall bear interest at the rate of
%. The Bonds shall be issued pursuant to the Bond Ordinance. The Bonds shall be
dated, shall mature and be subject to mandatory redemption on such dates and in such amounts,
shall bear interest at such rates, shall be offered at the initial offering prices and shall be subject
to such other terms and conditions, all as described in the Limited Offering Memorandum and
the Bond Ordinance and the Indenture.
(B) Closing The purchase and sale of the Bonds shall take place on the
Closing Date at the offices of Foley & Lardner LLP, Chicago, Illinois. At the Closing, as
defined below, the Purchaser will accept the delivery of the Bonds duly executed by the City,
together with other documents herein mentioned, and will make payment therefor as provided
herein by immediately available funds payable to the order of the Trustee for the account of the
city.
The payment for the Bonds and delivery of the Bonds, as herein described, is herein
called the "Closing."
3. Citv's Pre - Closing Deliveries.
(A) Prior to the Closing Date, the City shall have delivered or caused to be
delivered to the Purchaser an executed copy of the Limited Offering Memorandum, executed on
behalf of the City by its City Mayor.
(B) Prior to the Closing Date, the City shall have delivered or caused to be
delivered to the Purchaser a certified copy of the Establishing Ordinance, the Bond Ordinance,
and such other ordinances of the City which shall include the authorization of the execution,
delivery and performance of this Contract, the Bonds and the other Ancillary Documents to
which the City is a party, among other things, together with such reasonable number of copies of
each of the foregoing as the Purchaser shall request.
(C) The City hereby authorizes any and all of the material described above in
Subsections A and B of this Section 3 and the Ancillary Documents, the information contained in
the Limited Offering Memorandum and the Bond Ordinance and all other instruments,
documents and agreements delivered pursuant to Section 8 of this Contract or in connection with
the transactions contemplated hereby, for use in connection with the offering and sale of the
Bonds. The City hereby ratifies, approves, and consents to the use and distribution by the
Purchaser, prior to or after the date hereof, of the Limited Offering Memorandum in connection
with the offering of the Bonds. The City hereby agrees to furnish such information, execute such
instruments and take such other action at the expense of and in cooperation with the Purchaser as
the Purchaser may deem reasonably necessary in order to qualify the Bonds for offering and sale
under the "Blue Sky" or other securities laws and regulations of such states and other
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jurisdictions of the United States as the Purchaser may designate; provided, however, that the
City shall not be required to execute a special or general consent to service of process or qualify
as a foreign corporation in connection with any such qualification in any jurisdiction.
4. Representations and Warranties of the Citv.
The City represents and warrants to and agrees with the Purchaser that:
(A) Cites. The City is a non -home rule unit, municipal corporation duly
organized and validly existing and is in good standing under the laws and the Constitution of the
State of Illinois. The City is authorized and empowered by the Act and the Bond Ordinance and
such other ordinances of the City as have been duly adopted, by the City, to enter into the
transactions contemplated by this Contract, the Bond Ordinance, the Limited Offering
Memorandum, and the Ancillary Documents to which the City is or is to be a party. The
adoption of each of the Bond Ordinance and the Establishing Ordinance and the execution,
delivery and performance by the City of this Contract, the Ancillary Documents to which the
City is or is to be a party and the issuance of the Bonds are within the legal right, power and
authority of the City, have been duly and validly authorized by all necessary proceedings of the
City, and such execution, delivery and performance by the City as of the date of this Contract
and as of the Closing Date do not and will not contravene, or constitute a breach of or default
(with due notice or the passage of time or both) under, any provision of law, ordinance or
regulation applicable to the City, or any provision of the municipal code or other rules and
procedures of the City, or any judgment, order, decree, agreement or instrument binding on it or,
except as described in the Limited Offering Memorandum, result in the creation of any lien or
other encumbrance on any asset of the City. This Contract and the Bond Ordinance each
constitute, and the Ancillary Documents to which the City is or is to be a party, when executed
and delivered by the City and any other parties thereto, will constitute valid and binding
agreements of the City enforceable against the City in accordance with their respective terms,
except to the extent limited by bankruptcy, reorganization, or other similar laws affecting
creditors' rights generally and by the availability of equitable remedies, and the Bonds, when
issued and delivered by the City in accordance with this Contract and the Bond Ordinance will
have been duly authorized and issued and will constitute valid and binding obligations of the
City enforceable against the City in accordance with their terms, except to the extent limited by
bankruptcy, reorganization, or other similar laws affecting the enforcement of creditors' rights
generally and by the availability of equitable remedies. When delivered to and paid for by the
Purchaser at the Closing in accordance with the provisions of this Contract, the Bonds will
conform in all material respects to the description thereof contained in the Limited Offering
Memorandum.
(B) Use of Proceeds. The City will not take or omit to take any action which
will in any way cause or result in the proceeds from the sale of the Bonds being applied other
than as provided in the Bond Ordinance and as described in the Limited Offering Memorandum.
Such proceeds will not be used by the City in a manner that would cause the Bonds to be
"arbitrage bonds" within the meaning of the Code, or any successor thereto, and the applicable
regulations promulgated or proposed thereunder.
(C) Governmental Authorization. All authorizations, consents and approvals
of any Governmental Body required in connection with the execution and delivery by the City
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of, or in connection with the performance by the City of its obligations under, the Bonds, the
Bond Ordinance, the Establishing Ordinance, this Contract, or the Ancillary Documents to which
the City is or is to be a party, have been obtained and are in full force and effect, or will be
obtained prior to Closing and will be in full force and effect as of the Closing Date. To the best
knowledge of the City, all authorizations, consents and approvals of any Governmental Body
required in connection with the construction or operation of the Project by the City have been
obtained and are in full force and effect as of the Closing Date.
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(D) Limited Offering Memorandum. The descriptions and information
contained in the Limited Offering Memorandum under the captions "INTRODUCTORY
STATEMENT "; "THE BONDS" (other than information under the sub - caption "– Book -Entry
Only System "); "THE PLAN OF FINANCE "; "DEBT SERVICE REQUIREMENTS ";
"SECURITY AND SOURCE OF PAYMENT FOR THE BONDS" (other than information
under the sub - captions "– Market Absorption Study ", "– Summary of the Appraisal ", " –Value to
Lien Ratio'); "SUMMARY OF THE PUBLIC INFRASTRUCTURE AGREEMENT ";
"SUMMARY OF THE ANNEXATION AGREEMENT AND PLANNED DEVELOPMENT
AGREEMENT"; "THE CITY"; "THE SPECIAL SERVICE AREA AND THE SPECIAL
TAX "; "RISK FACTORS — LIMITED SOURCE OF FUNDS" and " —Loss of Tax Exemption';
"LEGAL OPINIONS"; "CONTINUING INFORMATION –The City "; "NO LITIGATION – The
City "; "NO RATING" and "AUTHORIZATION" and in Appendices B, C and E thereto
(collectively, the "City Information ") are, and as of the date of the Closing, will be, true and
correct in all material respects and such descriptions and information in the Limited Offering
Memorandum, as of its date and as of the Closing Date will not contain an untrue, incorrect or
misleading statement of a material fact; and such descriptions and information in the Limited
Offering Memorandum do not, as of its date and as of the Closing Date will not omit to state a
material fact necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading.
(E) No Liens or Encumbrances. Other than as specifically set forth in the
Limited Offering Memorandum, there are no existing liens, claims, charges or encumbrances on
or rights to any funds, revenues or interests pledged pursuant to the Bond Ordinance which are
senior to, or on a parity with, the claims of the holders of the Bonds. Other than as specifically
disclosed in the Limited Offering Memorandum, the City has not entered into any contract or
arrangements of any kind, and there is no existing, pending, threatened, or anticipated event or
circumstance that might give rise to any lien, claim, charge or encumbrance on or right to the j
assets, properties, funds, or interests pledged pursuant to the Bond Ordinance which would be
prior to, or on a parity with, the claims of the holders of the Bonds. The City is lawfully entitled
to receive, pledge and assign all amounts or revenues which have been pledged or assigned as
security for the payment of the principal of and interest on the Bonds.
(F) No Litigation. Except as described in the Limited Offering Memorandum,
as of the date of this Contract and as of the Closing Date (i) there is no action, suit, proceeding or
investigation, at law or in equity, before or by any court or any governmental agency or public
board or body, pending against the City or, to the knowledge of the City, threatened against the
City, to restrain or enjoin, or threatening or seeking to restrain or enjoin, the issuance, sale or
delivery of the Bonds or the delivery by the City of any of the Ancillary Documents to which the
City is a party, or the collection of Pledged Funds, or in any way contesting or affecting the
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validity of the Bonds, or any of the Ancillary Documents to which the City is a party, or in any
way questioning or affecting (w) the proceedings under which the Bonds are to be issued, (x) the
validity or enforceability of any provision of the Bonds, the Bond Ordinance, the Establishing
Ordinance or this Contract, (y) the authority of the City to collect the Pledged Funds, or to
j perform its obligations hereunder or with respect to the Bonds, or to consummate any of the
transactions set forth in the Ancillary Documents to which it is or is to be a party as
contemplated hereby or by the Bond Ordinance, or the Limited Offering Memorandum, (z) the
j legal existence of the City, or the title of its Board of Trustees or officers to their offices, and (ii)
there is no action, suit, proceeding or investigation, at law or in equity, before or by any court or
any governmental agency or public board or body, pending against the City or, to the knowledge
of the City, threatened against the City, involving any of the property or assets within the City
which may result in any material adverse change in the Pledged Funds, assets or the financial
condition of the City or the proposed construction or operation of the Project by the Developer
pursuant to the Public Infrastructure Agreement.
(G) Certificates. Any certificate signed by an authorized officer of the City
and delivered to the Purchaser and/or the Trustee shall be deemed a representation and covenant
by the City to the Purchaser and/or the Trustee as to the statements made therein.
(H) Annexation Agreement and the Ordinances. Each of the Annexation
Agreement, the Bond Ordinance, the Establishing Ordinance and the Proposing Ordinance is in
full force and effect, and has not been amended, modified, revoked or repealed.
5. Representations and Warranties of the Developer.
The Developer represents and warrants, jointly and severably, to and agrees with the
Purchaser and the City that:
(A) Organization and Power. Developer is a duly organized and validly
existing corporation under the laws of the State of Michigan. The Developer has all power and
authority and all governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted and to enter into and perform its obligations under this
Contract, and all Ancillary Documents to which it is or is to be a party or parties.
(B) Authorization of Agreements, etc. This Contract and the Ancillary
Documents to which the Developer is or is to be a party have each been or will be duly
authorized, executed and delivered by the Developer and constitute the legal, valid and binding
agreement of the Developer enforceable against the Developer in accordance with their
respective terms; provided that the enforceability of such Documents may be limited by
bankruptcy, reorganization, insolvency and similar laws affecting the enforcement of creditor's
rights and remedies generally, as applied in the event of bankruptcy, reorganization or
insolvency of the Developer and to equitable remedies. The Developer has duly authorized all
necessary action to be taken by it for (i) approval of the Developer Information and (ii) the
execution and delivery of this Contract and the Ancillary Documents to which the Developer is
or is to be a party, and any and all other agreements and documents as may be required to be
executed or delivered by the Developer in order to effectuate the transactions contemplated
herein and therein.
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(C) Public Infrastructure Agreement. Except for (i) final platting and
engineering approvals to be completed as part of the Project, (ii) those other consents, permits
and approvals customarily obtained during construction and development of the Project and
(iii) as otherwise set forth in the Limited Offering Memorandum, any and all of the conditions
precedent to the obligations of the Developer arising under the Public Infrastructure Agreement
have been satisfied or waived by the City. Developer has obtained or will obtain all easements
and rights -of -way necessary to construct and operate the Special Services (except such
easements or rights -of -way that the City is obligated to obtain pursuant to the Public
Infrastructure Agreement or the Annexation Agreement).
(D) No Material Change. Other than as disclosed in the Limited Offering
Memorandum, (i) the Developer has not incurred any material liabilities or entered into any
material transactions other than in the ordinary course of business and (ii) there has been no
material adverse change from the date of the most recent Financial Statements of Developer
delivered to Purchaser in the business, financial position, prospects or results of operations of the
Developer or Pulte Diversified Companies, Inc. or Pulte Homes, Inc.,' which would affect the
Developer's ability to perform its obligations pursuant to this Contract or the Ancillary
Documents, to the extent to which the Developer is or is to be a party to any such agreement.
(E) Noncontravention. The execution, delivery and performance by the
Developer of its respective obligations under this Contract and the Ancillary Documents to
which Developer is a party, do not and to the Developer's knowledge, will not contravene, or
constitute a default under, any provision of applicable law or regulation or organizational
documents of the Developer, or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Developer, and will not result in the creation of any lien or other
encumbrance upon any asset of the Developer except as set forth in the Limited Offering
Memorandum.
(F) Governmental or Corporate Consents. No consent or approval is required
to be obtained from, and no action need be taken by, or document filed with, any Governmental
Body or corporate entity in connection with the execution or delivery by the Developer of this
Contract or any Ancillary Document to which the Developer is or is to be a party, or, if any such
action is required, the same has been duly taken, is in full force and effect and constitutes valid
and sufficient consent or approval therefor, including, without limitation, zoning approvals and
building permits, except for (i) final platting and engineering approvals to be completed as part
of the Project, (ii) those other consents and approvals which are customarily obtained during
construction of the Project and (iii) as otherwise set forth in the Limited Offering Memorandum.
The Developer has no reason to believe any such consent or approval will not be obtained in due
course. The Developer has obtained executed written easement agreements for any and all
easements necessary for the construction and operation of the Special Services (except such
easements or rights-of-way that the City is obligated to obtain pursuant to the Public
Infrastructure Agreement or the Annexation Agreement).
(G) No Litigation. Except as described in the Limited Offering Memorandum,
there is no material action, suit, proceeding or investigation, at law or in equity, before or by any
court or any governmental agency or public board or body, pending against the Developer, in
which the Developer is a party or, to the knowledge of the Developer threatened against the
Developer (i) contesting or in any way relating to (a) the construction and development of the
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Project, (b) the generation of Pledged Funds or the transactions contemplated by the issuance of
the Bonds or as otherwise described in the Limited Offering Memorandum or (ii) which in any
way contests the existence or power of the Developer or the validity or enforceability of the
Bonds, the Ancillary Documents, this Contract or the Limited Offering Memorandum or which if
adversely determined could have a material adverse effect on the Developer.
(H) Limited Offering Memorandum. The Developer Information contained in
the Limited Offering Memorandum (i) is true and correct in all material respects as of the date
hereof and (ii) as of the date hereof does not contain any untrue statements of a material fact or
omit to state a material fact necessary to be stated therein in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. With respect to the
Appraisal as described in the Limited Offering Memorandum, the foregoing are, to the best of
the Developer's knowledge, true and accurate in all material respects (subject to the
qualifications set forth in the Appraisal).
(I) Use of Proceeds. The Developer will not knowingly take or knowingly
omit to take any action which will in any way cause or result in the proceeds of the sale of the
Bonds being applied in a manner other than as provided in the Bond Ordinance, the Indenture,
the Public Infrastructure Agreement and as described in the Limited Offering Memorandum.
Such proceeds will not be used by the Developer in a manner that would cause the Bonds to be
"arbitrage bonds" within the meaning of the Code, or any successor thereto, and the applicable
regulations promulgated or proposed thereunder.
(J) No Default. No default or event of default on the part of the Developer
has occurred and is continuing, and no event has occurred and is continuing which with the lapse
of time or the giving of notice, or both, would constitute a default or an event of default on the
part of the Developer under this Contract, the Ancillary Documents to which the Developer is a
party, or any other material agreement or material instrument to which the Developer is a parry
or by which the Developer is or may be bound.
(K) Approvals. The Developer is in good standing with respect to any
applicable certificates, licenses, inspections, franchises, consents, immunities, permits,
authorizations and approvals, governmental or otherwise, necessary to conduct and to continue to
conduct its business as heretofore conducted by it and to own or lease and operate its properties
as now owned or leased by it, except those of the foregoing that are currently in process. The
Developer has obtained or, to the extent not obtained as of the date hereof, will use commercially
reasonable efforts to obtain, any applicable certificates, licenses, inspections, franchises,
consents, immunities, permits, authorizations and approvals, governmental or otherwise,
necessary to construct the Project.
(L) Certificates. Any certificate signed by an authorized representative of the
Developer and delivered to the City or the Purchaser shall be deemed a representation and
warranty by the Developer to the City and the Purchaser as to the statements made by Developer
therein.
(M) Environmental Representation. To the best of the Developer's knowledge,
no toxic or hazardous substances, including without limitation, asbestos, and the group of
organic compounds known as polychlorinated biphenyls, have been generated, treated, stored or
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disposed of, or otherwise deposited in or located on the site, which includes the Area, and no
activity has been undertaken at the site which includes the Area, other than those activities,
which activities are in material conformity with all state and federal laws, for which the Project
is designed, which could:
(i) cause the Project or any part thereof to become a hazardous waste
treatment, storage or disposal -facility within the meaning of, or otherwise bring such
property within the ambit of, the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq. (the "RCRA "), or any other similar state law or local ordinance;
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(ii) cause a release or threatened release of hazardous materials, wastes
or substances from the site or any part thereof within the meaning of, or otherwise bring
such property or any part thereof within the ambit of, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C., Sections 9601 -9657 (the
"CERCLA "), or any similar state law or ordinance or any other environmental law;
(iii) cause the discharge of pollutants or effluents into any water source
or system, or the discharge into the air of any emissions, which would require a permit
under the Federal Water Pollution Control Act, 33 U.S.C., Section 1251 et seq., or the
Clean Air Act, 41 U.S.C., Section 7401 et seq., or any similar state law or local
ordinance; or
(iv) support a claim or cause of action under RCRA, CERCLA or any
other federal, state or local environmental statutes, regulations, ordinances or other
environmental regulatory requirements.
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(1) No Challenges. The Developer agrees that it will not bring any suit,
action or proceeding which challenges the establishment of the Area, the levy, extension and
collection of the Special Tax, the validity of the Bonds or the proceedings relating to the Bonds.
(0) Annexation Agreement. Neither Developer nor, to Developer's
knowledge, any other party is in default of any of its or such party's obligations under the
Annexation Agreement, has received no notice of, and has no knowledge of, any event or fact
which, with the passage of time, would constitute a default by Developer or any other party
under the Annexation Agreement.
6. Representations and Warranties and Agreements of the Purchaser.
(A) Limited Offering. The Purchaser agrees to make a limited offering of the
Bonds to a limited number of institutional investors at a price not in excess of the offering price
set forth on the cover page of the Limited Offering Memorandum; such limited offering shall
meet requirements for exemption from registration under applicable federal and state securities
laws.
(B) Limited Offering Memorandum. The descriptions and information
contained in the Limited Offering Memorandum under the caption "UNDERWRITING" and the
first two grammatical sentences under the caption "LIMITED OFFERING" are, and as of the
date of the Closing will be, true and correct in all material respects and such descriptions and
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information in the Limited Offering Memorandum, as of its date and as of the Closing Date, will
not contain an untrue, incorrect or misleading statement of a material fact; and such descriptions
and information in the Limited Offering Memorandum do not, as of its date and as of the Closing
Date will not omit to state a material fact necessary to make the statements made therein, in the
light of the circumstances under which they were made, not misleading.
7. Termination of the Purchase Contract.
The Purchaser shall have the right to cancel Purchaser's obligations to purchase the
Bonds, if, between the date hereof and the date of Closing, (i) legislation shall be enacted, or
actively considered for enactment, by the Congress or recommended by the President of the
United States to the Congress for passage, or favorably reported,for passage to either House of
the Congress by any committee of such House to which such legislation has been referred for
consideration, a decision by a court of the United States or the United States Tax Court shall be
rendered, or a ruling, regulation or official statement by or on behalf of the Treasury Department
of the United States, the Internal Revenue Service or other agency or department of the United
States shall be made or proposed to be made which has the purpose or effect, directly or
indirectly, of imposing federal income taxes upon interest on the Bonds; (ii) any other action or
event shall have transpired which has the purpose or effect, directly or indirectly, of materially
adversely affecting the federal income tax consequences of any of the transactions contemplated
in connection herewith or contemplated by the Limited Offering Memorandum, or, in the
reasonable opinion of the Purchaser, such action or event pertaining to the federal income tax
consequences referenced above materially adversely affects the market for the Bonds or the sale,
at the contemplated offering price, by the Purchaser of the Bonds; (iii) legislation shall be
enacted, or actively considered for enactment by the Congress, with an effective date on or prior
to the date of Closing, or a decision by a court of the United States shall be rendered, or a ruling
or regulation by the Securities and Exchange Commission or other governmental agency having
jurisdiction over the subject matter shall be made, the effect of which is that (A) the Bonds are
not exempt from the registration, qualification or other requirements of the Securities Act of
1933, as amended and as then in effect, or the Securities Exchange Act of 1934, as amended and
as then in effect, or (B) the Indenture is not exempt from the registration, qualification or other
requirements of the Trust Indenture Act of 1939, as amended and as then in effect; (iv) a stop
order, ruling or regulation by the Securities and Exchange Commission shall be issued or made,
the effect of which is that the issuance, offering or sale of the Bonds, as contemplated herein and
in the Limited Offering Memorandum, is in violation of any provision of the Securities Act of
1933, as amended and as then in effect, the Securities Exchange Act of 1934, as amended and as
then in effect, or the Trust Indenture Act of 1939, as amended and as then in effect; (v) there
shall occur any event which in the reasonable judgment of the Purchaser either (A) makes untrue,
incorrect or misleading in any material respect any statement or information contained in the
Limited Offering Memorandum or (B) is not reflected in the Limited Offering Memorandum but
should be reflected therein in order to make the statements and information contained therein not
misleading in any material respect and, in either such event, the City refuses to permit the
Limited Offering Memorandum to be supplemented to correct or supply such statement or
information, or the effect of the Limited Offering Memorandum as so corrected or supplemented
is such as, in the reasonable judgment of the Purchaser, would materially adversely affect the
market for the Bonds or the sale, at the contemplated offering price, by the Purchaser of the
Bonds; (vi) there shall occur any outbreak of hostilities or any regional, national or international
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calamity or crisis or a financial crisis and the effect is such as, in the reasonable judgment of the
Purchaser, would materially adversely affect the market for or the marketability of the Bonds or
obligations of the general character of the Bonds; (vii) a general suspension of trading on the
New York Stock Exchange is in force; (viii) a general banking moratorium is declared by federal
or state authorities; (ix) there occurs any material adverse change in the affairs, operations or
financial conditions of the City, except as set forth or contemplated in the Limited Offering
Memorandum or in the affairs, operations or financial condition of the Developer; (x) the
Limited Offering Memorandum is not executed, approved and delivered in accordance with
Section 3 above; (xi) in the reasonable judgment of the Purchaser, the market price of the Bonds,
or the market price generally of obligations of the general character of the Bonds, might be
adversely affected because: (A) additional material restrictions not in force as of the date hereof
shall have been imposed upon trading in securities generally by any governmental authority or
by any national securities exchange, or (B) the New York Stock Exchange or other national
securities exchange, or any governmental authority, shall impose, as to the Bonds or similar
obligations, any material restrictions not now in force, or increase materially those now in force,
with respect to the extension of credit by, or the charge to the net capital requirements of,
underwriters; (xii) a war involving the United States of America shall have been declared, or any
conflict involving the armed forces of any country shall have escalated, or any other
international, national or regional emergency relating to or affecting the effective operation of
government or the financial community shall have occurred, which, in the reasonable judgment
of the Purchaser, materially adversely affects the market for the Bonds or of obligations of the
general character of the Bonds; (xiii) any litigation shall be instituted, pending or threatened to
restrain or enjoin the issuance, sale or delivery of the Bonds or in any way protesting or affecting
any authority for or the validity of the Bonds, the Bond Ordinance, the existence or powers of the
City, or any event described or contemplated by the Limited Offering Memorandum; (xiv) there
shall have occurred a default with respect to the debt obligations of, or the institution of
proceedings under any federal bankruptcy laws by or against, any state of the United States or
any city or political subdivision of any state, the effect of which, in the reasonable judgment of
the Purchaser, would materially adversely affect the ability of the Purchaser to market the Bonds.
8. Conditions of Closing.
The Purchaser's obligation to purchase the Bonds under this Contract is subject to the
performance by the City and the Developer of their respective obligations hereunder at and prior
to the Closing Date, to the accuracy, in the reasonable discretion of the Purchaser, of the
representations and warranties of the City and the Developer contained herein as of the Closing
Date, and, in the reasonable discretion of the Purchaser, to the following conditions, including
the delivery of such documents as are enumerated herein in form and substance satisfactory to
the Purchaser and its counsel as of the Closing Date:
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(A) Ordinances in Effect and Citv in Comuliance Therewith. At the time of
the Closing (i) each of the Bond Ordinance, the Establishing Ordinance and the Proposing
Ordinance shall be in full force and effect, and shall not have been amended, modified or
supplemented since the date hereof, except as may have been agreed to in writing by the
Purchaser, and the City shall have duly adopted and there shall be in full force and effect such
additional ordinances or agreements as shall be, in the opinion of Bond Counsel, necessary in
connection with the transactions contemplated hereby and (ii) the City shall perform or have
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performed all of its obligations required under or specified in this Contract with regard to the
Bonds or the Bond Ordinance to be performed at, simultaneously with or prior to the Closing.
(B) Opinions of Bond Counsel. The Purchaser shall have received unqualified
approving and supplemental legal opinions dated the Closing Date as to the Bonds, addressed to
the Purchaser, Developer, and the Trustee, from Foley & Lardner LLP, Bond Counsel,
satisfactory to the Purchaser in its reasonable discretion, substantially in the form of Exhibit Al
and Exhibit A2 hereto.
(C) Opinion of Purchaser's Counsel. The. Purchaser shall have received a
favorable opinion dated the Closing Date, addressed to the Purchaser, from Schain, Burney, Ross
& Citron, Ltd., satisfactory to the Purchaser in its reasonable discretion.
(D) Opinion of Counsel to the Citv. The Purchaser shall have received a
favorable opinion dated the Closing Date, addressed to the Purchaser, Bond Counsel, Developer
and the Trustee, from John Wyeth, Esq., counsel to the City, satisfactory to the Purchaser in its
reasonable discretion, substantially in the form of Exhibit B hereto.
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(E) Opinion of Counsel to the Developer. The Purchaser shall have received a
favorable opinion dated the Closing Date, addressed to the Purchaser, the City, and Bond
Counsel from Gardner, Carton & Douglas, L.L.P., counsel to the Developer, satisfactory to the
Purchaser in its reasonable discretion, substantially in the form of Exhibit C hereto.
(F) Performance: No Default. Each of the City and the Developer shall have
performed and complied with all agreements and conditions herein required to be performed or
complied with by each of them prior to or on the Closing Date, and at the time of the Closing no
event of default or default shall have occurred and be continuing with respect to the Ancillary
Documents or the Bonds.
(G) Ancillary Documents. At the Closing Date, (i) all of the Ancillary
Documents shall be in full force and effect, shall have been duly executed and copies delivered
to the Purchaser by, and shall constitute valid and binding agreements of, the parties thereto,
shall not have been amended, modified or supplemented except as may have been agreed to in
writing by the Purchaser and there shall be no defaults or events of default thereunder and (ii) the
proceeds of the sale of the Bonds shall be applied or deposited with the Trustee for application as
described in the Bond Ordinance and the Limited Offering Memorandum.
(H) Closine Certificate of Citv Mavor. The City shall have delivered to the
Purchaser a certificate dated the Closing Date, addressed to the Purchaser and the Trustee signed
by the City Mayor in form and substance reasonably satisfactory to the Purchaser.
(I) Officer's Certificate of the Developer. The Developer shall have
j delivered to the Purchaser a certificate dated the Closing Date, addressed to the Purchaser signed
by an authorized officer of the Developer in form and substance reasonably satisfactory to the
Purchaser.
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(J) The Bonds. The Bonds shall have been duly authorized, executed,
authenticated, delivered, and the proceeds from the sale thereof applied, in accordance with the
provisions of the Bond Ordinance.
(K) Trustee's Certificate. The Purchaser shall have received a certificate dated
the Closing Date of an authorized officer of the Trustee, addressed to the Purchaser reasonably
acceptable in form and substance to the Purchaser.
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(L) Form 8038 -G. The Purchaser shall have received a copy of the completed
Form 8038 -G of the Internal Revenue Service executed by the City.
(M) Other Certificates. The Purchaser shall have received any and all
certificates required to be furnished by the provisions of any Ancillary Document to be obtained
or furnished by the City and the Developer at or prior to Closing.
(N) Specimen Bonds. The Purchaser shall have received specimen Bonds.
(0) Certified Copies of Ordinances. The Purchaser shall have received
certified copies of the Bond Ordinance and the Establishing Ordinance. The Bond Ordinance
shall include authorization for execution and delivery of this Contract.
(P) Snecial Tax Roll and Report. The Purchaser shall have received a copy of
the Special Tax Roll and Report substantially in the form attached to the Limited Offering
Memorandum (the "Special Tax Report").
(Q) Special Tax Report Consent. The Purchaser shall have received from the
preparers of the Special Tax Report a letter dated the Closing Date, addressed to the Purchaser
regarding such preparer's qualifications and the preparer's consent to the inclusion of the Special
Tax Report in the Limited Offering Memorandum.
(R) Title Insurance. The Purchaser shall have received copies of (i) an
Owner's title insurance policy or policies (or commitment(s) therefor) issued by a title insurance
company with respect to the Area showing title to the Area in the Developer, and which policies
or commitment(s) and company shall be acceptable to the Purchaser in its reasonable discretion.
(S) Market Absorption Studv. The City shall have received a certified copy of
the Market Absorption Study, together with any other evidence required by the Purchaser in
connection therewith or the information contained therein. The City and the Purchaser
acknowledge receipt of the Market Absorption Study.
(T) Market Absorption Studv Consent. The City shall have received from the
preparer of the Market Absorption Study a letter dated the Closing Date, addressed to the
Purchaser regarding such preparer's qualifications and the preparer's consent to include the
Market Absorption Study in the Limited Offering Memorandum.
(U) Environmental Audits. The Purchaser shall have received from the
Developer copies of the Phase I Environmental Site Assessments prepared by Testing Service
Corporation dated January 16, 2004 and copies of the Phase 11 Environmental Site Assessment
dated March 31, 2004. The Purchaser acknowledges receipt of such environmental audit.
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(V) Land Survev. The Purchaser shall have received from the Developer the
land survey depicting the Area.
(Vi) Appraisal. The City shall have received a certified copy of the Appraisal,
together with any other evidence required by the Purchaser in connection therewith or the
information contained therein.
(X) Appraisal Consent. The City shall have received from the preparer of the
Appraisal a letter dated the Closing Date, addressed to the Purchaser regarding such preparer's
qualifications and the preparer's consent to include the Appraisal in the Limited Offering
Memorandum.
(Y) Engineer's Certificate. The Purchaser shall have received a certificate
from the Developer's engineer dated the Closing Date in form and substance satisfactory to the
Purchaser stating that the costs reflected in the Limited Offering Memorandum will be sufficient
to complete the Special Services, as proposed, and such other matters as the Purchaser shall
reasonably require.
(Z) Plats of Subdivision. The Final Plat of Subdivision for Phase I has been
approved by the City and recorded in Kendall County, Illinois. Copies of the recorded Final Plat
of Subdivision for Phase I shall have been delivered to Purchaser. The Preliminary Plat of
Subdivision for Phase II of the Project shall have been approved by the City. 'The City
acknowledges that it has approved the Preliminary Plat of Subdivision for the Area. Copies of
the Preliminary Plat of Subdivision for Phase II shall have been delivered to Purchaser.
(AA) Letters of Commitment; Insurance Policies. The Developer shall have
delivered to the City any and all of the items currently due as required pursuant to the terms of
the Public Infrastructure Agreement, as requested by the City. The Developer shall have
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delivered adequate evidence of insurance.
(BB) Certificates of Good Standing. The Purchaser shall receive good standing
certificates for each of Pulte Home Corporation, Pulte Diversified Companies, Inc., and Pulte
Homes, Inc., dated within five days of the date hereof from the Secretary of State from their
respective State of Organization.
(CC) Additional Opinions. Certificates. etc. The Purchaser shall have received
such additional legal opinions, certificates, proceedings, instruments and other documents as the
Purchaser, the City or their respective counsel may deem reasonably necessary or desirable.
All of the opinions, letters, certificates, instruments and other documents mentioned in
this Contract shall be deemed to be in compliance with the provisions of this Contract only if in
the reasonable judgment of the Purchaser, they are satisfactory in form and substance.
If there shall be a failure to satisfy the conditions of the Purchaser's obligations contained
in this Contract or if the Purchaser's obligations to purchase the Bonds shall be terminated for
any reason permitted by this Contract, this Contract shall terminate, and the Purchaser, the City
and the Developer shall not have any further obligations hereunder, except for the obligations set
forth in Section 10 hereof which shall remain in full force and effect.
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9. Changes Affecting the Limited Offering Memorandum.
At any time prior to the Closing, the City agrees to supplement or amend the Limited
Offering Memorandum whenever requested by the Purchaser when, in the reasonable judgment
of the Purchaser and the City, such supplement or amendment is required. No amendment or
supplement to the Limited Offering Memorandum shall be made without the approval of the
Purchaser. After the Closing and so long as the Purchaser shall be offering any of the Bonds, but
not later than 90 days after the date of this Contract, if any event shall occur as a result of which
it is necessary to amend or supplement the Limited Offering Memorandum in order to make the
statements therein, in light of the circumstances under which they are made, not misleading, the
City will so advise the Purchaser. In any such case, the City and the Developer shall cooperate
in the preparation, execution and delivery of either amendments to the Limited Offering
Memorandum or supplemental information so that the statements in the Limited Offering
Memorandum, as so amended or supplemented will not, in light of the circumstances under
which such statements were made, be misleading. The cost of providing such amendments or
supplements shall be paid by the City which costs may be reimbursed from amounts made
available under the Bond Ordinance as Administrative Costs.
10. Pavment of Expenses.
All fees, costs and expenses associated with the issuance of the Bonds, including without
limitation, the reasonable fees and disbursements of the preparer of the Special Tax Report, the
Purchaser's legal counsel, Schain, Burney, Ross & Citron, Ltd., Bond Counsel, Foley & Lardner
LLP, Developer's legal counsel, Gardner, Carton & Douglas, L.L.P., and the City's counsel,
John Wyeth, Esq., shall be disbursed and paid by the Trustee from the proceeds of the Bonds.
All other costs and expenses relating to the issuance of the Bonds and the development of the
Area shall be paid by the Developer.
11. Notices
Except as otherwise provided in this Contract, whenever notice is required to be given
pursuant to the provisions of this Contract, such notice shall be in writing and shall be mailed by
first class mail postage prepaid.
12. Law Governing.
This Contract shall be construed in accordance with and governed by the laws of the
State of Illinois.
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13. Headings.
The headings of the paragraphs and subparagraphs of this Contract are inserted for
convenience only and shall not be deemed to constitute a part of this Contract.
14. Countemarts.
This Contract may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument.
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15. Parties and Interests.
This Contract is made solely for the benefit of the City, the Purchaser and the Developer,
including the successors and assigns of the Purchaser, and no other person, partnership,
association or corporation shall acquire or have any rights hereunder or by virtue hereof.
16. Indemnification.
(A) The City agrees to indemnify and hold harmless the Purchaser, each
director, trustee, shareholder, officer, employee or agent of any of the Purchaser and each person,
if any, who has the power, directly or indirectly, to direct or cause the direction of the
management and policies of any of the Purchaser, pursuant to such Purchaser's regulations or
Bylaws, or who controls any of the Purchaser within the meaning of Section 20 of the Exchange
Act or Section 15 of the Securities Act, from and against any and all losses, claims, damages,
liabilities or expenses whatsoever caused by any untrue or misleading, or allegedly untrue or
misleading, statement of a material fact contained in that portion of the Limited Offering
Memorandum constituting the City Information, or in any amendment or supplement thereto
with regard to that portion of the Limited Offering Memorandum, or caused by any omission or
alleged omission to state therein a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; the City shall not be
liable under this paragraph if the person asserting any such loss, claim, damage or liability
purchased Bonds from the Purchaser, if delivery to such person of the Limited Offering
Memorandum, or any amendment or supplement thereto, would have been a valid defense to the
action from which such loss, claim, damage or liability arose and if the Limited Offering
Memorandum, amendment of or supplement was not delivered to such person by or on behalf of
the Purchaser.
In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to the preceding
paragraph, such person (the "indemnified party ") shall promptly notify the City in writing, and
the City shall promptly assume the defense thereof, including the employment of counsel chosen
by the City and approved by the Purchaser and shall pay the reasonable fees and disbursements
of such counsel related to such proceeding. If any of the indemnified parties is advised by
counsel that there may be legal defenses available to such indemnified party which are adverse to
or in conflict with those available to the City or another indemnified party, the City shall not
have the right to assume the defense of such indemnified party, but the City shall be responsible
for the reasonable fees and expenses of counsel retained by such indemnified party in assuming
its own defense, and provided also that if the City shall have failed to assume the defense of such
action or to retain counsel satisfactory to the Purchaser within a reasonable time after notice of
the commencement of such action, the reasonable fees and expenses of counsel retained by the
indemnified parties shall be paid by the City. Notwithstanding, and in addition to, any of the
foregoing, any one or more of the indemnified parties shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless the City and the indemnified party shall have mutually agreed to the retention of
such counsel. Such firm shall be designated in writing by the indemnified party. The City shall
not be liable for any settlement of any proceeding effected without its written consent, but, if
settled with such written consent of the City or if there shall be a final judgment for the plaintiff,
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the City agrees to indemnify the indemnified party from and against any loss, damage, cost,
expense or liability by reason of such settlement or judgment.
(B) The Developer agrees to indemnify, defend and hold harmless (a) the
j Purchaser, each director, trustee, member, officer, agent or employee and each person, if any,
who has the power, directly or indirectly, to direct or cause the direction of the management and
policies of any of the Purchaser, pursuant to such Purchaser's regulations - or Bylaws, or who
controls any of the Purchaser within the meaning of Section 20 of the Exchange Act or Section
15 of the Securities Act, by contract or otherwise, and (b) the City, each director, trustee,
member, officer, agent or employee and each person, if any, who has the power, directly or
indirectly, to direct or cause the direction of the management and policies of the City
(collectively called the "Section 16(b) Indemnified Parties "), from and against any and all losses,
claims, damages, liabilities or expenses to the extent caused by or arising out of any untrue
statement or misleading statement or alleged untrue statement or alleged misleading statement of
a material fact (unless such alleged untrue or misleading statement is (i) made by the Purchaser
or the city, as the case may be, and (ii) such alleged untrue or misleading statement is proven or
otherwise determined to be false) contained in any of the Developer Information, or caused by
any omission or alleged omission to state in the Developer Information a material fact required
to be stated in the Developer Information or necessary to make the statements in the Developer
Information, in the light of the circumstances under which they were made, not misleading. The
Developer shall not be liable under this paragraph if the person asserting any such loss, claim,
damage or liability purchased Bonds from the Purchaser, if delivery to such person of the
j Limited Offering Memorandum, or any amendment or supplement thereto, would have been a
valid defense to the action from which such loss, claim, damage or liability arose and if the
Limited Offering Memorandum, amendment of or supplement was not delivered to such person
by or on behalf of the Purchaser.
In case any claim shall be made or any action shall be brought against one or more of the
Section 16(b) Indemnified Parties desiring to seek indemnification pursuant to this Section 16(b),
the Section 16(b) Indemnified Parties seeking indemnity shall promptly notify the Developer in
writing, and the Developer shall promptly assume the defense thereof, including the employment
of counsel chosen by the Developer and approved by the Purchaser and the City, which approval
will not be unreasonably withheld, and the payment of all reasonable expenses and
disbursements of such counsel related to such defense. If any of the Section 16(b) Indemnified
Parties is advised by counsel that there may be legal defenses available to it which are adverse to
or in conflict with those available to the Developer or any other Section 16(b) Indemnified Party,
or that the defense of such Section 16(b) Indemnified Party should be handled by separate
counsel, the Developer shall not have the right to assume the defense of such Section 16(b)
Indemnified Party, but shall be responsible for the reasonable fees and expenses of counsel
retained by such Section 16(b) Indemnified Party in assuming its own defense, and provided also
that if the Developer shall have failed to assume the defense of such action or to retain counsel
satisfactory to the Purchaser and the City within a reasonable time after notice of the
commencement of such action, the reasonable fees and expenses of counsel retained by the
Section 16(b) Indemnified Parties shall be paid by the Developer. Notwithstanding, and in
addition to, any of the foregoing, and subject to the approval of the Developer, which approval
will not be unreasonably withheld, any one or more of the Section 16(b) Indemnified Parties
shall have the right to employ separate counsel in any such action and to participate in the
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defense thereof, but the fees and expenses of such counsel shall be at the expense of such Section
16(b) Indemnified Party or Parties unless the employment of such counsel has been specifically
authorized, in writing, by the Developer, or unless such retention is specifically authorized
herein. Developer shall not be liable for any settlement of any proceeding effected without its
written. consent, but, if settled with such written consent or if there shall be a final judgment for
the plaintiff, Developer agrees to indemnify the Section 16(b) Indemnified Parties from and
against any loss, damage, cost, expense or liability by reason of such settlement or judgment.
(C) In order to provide for just and equitable contribution in circumstances in
which the indemnification provided for in this Section 16 is due in accordance with its terms but
is for any reason held by a court to be unavailable to any of the Purchaser, the City or the
Developer or unenforceable on grounds of policy or otherwise, the Developer and the Purchaser
shall contribute to the aggregate losses, claims, damages, fines and liabilities (including any
investigation, legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted, but after deducting
any contribution received by the Developer or the Purchaser from persons other than the
Developer or the Purchaser who may be liable for contribution, such parties hereby agreeing to
seek contribution from such persons) to which the Developer and the Purchaser may be subject
in such proportion so that the Purchaser is responsible for that portion represented by the
percentage that the underwriting fee bears to the offering price appearing on the cover page of
the Limited Offering Memorandum, and the Developer is responsible for the balance; provided,
however, in no case shall the Purchaser be responsible for any amount in excess of the amount of
said underwriting fee received to such date and provided, further, that no person found guilty of
fraudulent misrepresentation, error or omission shall be entitled to contribution (or costs of
defense) from any person who was not found guilty of fraudulent misrepresentation, error or
omission. For purposes of this Subsection 16(c), each partner, member, associate and employee
of any of the Purchaser or the Developer and each person who controls any of the Purchaser or
the Developer shall have the same rights to contribution as the Purchaser or the Developer
subject to the provisions in the preceding sentence relating to fraudulent misrepresentations.
Any party entitled to contribution will promptly after receipt of notice of commencement of any
action, threatened action, suit or proceeding against such party or parties under this Subsection
16(c), notify such party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have otherwise under this Subsection 16(c). Any
notice given pursuant to Subsections 16(a) or (b) hereof shall be deemed to include notice under
this Subsection 16(c).
17. Further Financial Reports.
The City agrees to provide the financial reports and information described in the
Indenture which it has covenanted to provide to the Trustee, to the Purchaser and any
Bondholder upon written request.
18. Amendment or Assienment.
This Contract may not be amended except through the written consent of all of the parties
hereto and is not assignable.
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19. Survival of Revresentations. Warranties, Agreements and Obligations.
Each respective representation, warranty and agreement of the City, the Developer and
the Purchaser shall remain operative and in full force and effect, regardless of any investigations
made by or on behalf of the Purchaser, the Developer, and the City and shall survive the Closing.
This Section 19, the obligations of the City under Sections 9, 10, 16 and 17 hereof, the
obligations of the Purchaser under Section 16 hereof and the obligations of the Developer under
Sections 10 and 16, hereof shall survive any termination of this Contract pursuant to its terms.
20. Severabilitv.
If any provision of this Contract shall be held or deemed to be or shall, in fact, be
inoperative or unenforceable as applied in any particular case in any or jurisdictions,
or in all cases because it conflicts with any other provision or provisions or any constitution or
statute or rule of public policy, or for any other reason, such circumstances shall not have the
effect of rendering the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained invalid,
inoperative, or unenforceable to any extent whatever. The invalidity of any one or more phrases,
sentences, clauses or sections in this Contract shall not affect the validity of the remaining
portions of this Contract, or any part hereof.
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[Signature Page to Bond Purchase Agreement]
Very truly yours,
WILLIAM BLAIR & COMPANY, L.L.C.
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By:
Its:
Accepted and agreed to by the under- signed
as of the date first above written.
PULTE HOME CORPORATION, a Michigan corporation
B
Its:
UNITED CITY OF YORKVILLE, an Illinois
municipal corporation
By:
Arthur Prochaska, Mayor
F: UC SKWm- BIeiAYorhville\Bond- Purchase-Agmt- 3- 15-06.dm
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EXHIBIT A -1
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. 2006
United City of Yorkville William Blair & Company, L.L.C.
800 Game Farm Road 222 West Adams Street
Yorkville, Illinois 60560 Chicago, Illinois 60606
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Pulte Home Corporation The Bank of New York Trust Company, N.A.,
2250 Point Boulevard, Suite 401 as Trustee
Elgin, Illinois 60123 2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Dear Ladies and Gentlemen:
We have examined a certified copy of the transcript of proceedings and accompanying
certificates relating to the issuance of $15,000,000 aggregate principal amount of United City of
Yorkville, Kendall County, Illinois, Special Service Area Number 2005 -108 Special Tax Bonds,
Series 2006 (Autumn Creek Project) (the "Bonds ") of the United City of Yorkville (the "City ").
The Bonds are initially dated their date of issuance, March _, 2006, and mature on March 1,
2036, bear interest from their date until paid at the rates per year and are subject to redemption,
all as provided in Ordinance Number of the City adopted on authorizing
the issuance of the Bonds (the "Ordinance ") and the Trust Indenture dated as of March
2006 (the "Indenture ") between the City and The Bank of New York Trust Company, N.A., as
Trustee. Interest on the Bonds is payable on March 1 and September 1 in each year, with the
first interest payment date being September 1, 2006. We have also examined the forms of the
Bonds.
Based upon our examination of the certified copy of the transcript of proceedings, the
accompanying certificates and the forms of the Bonds referred to above, it is our opinion that the
Bonds are valid and legally binding limited obligations of the City in accordance with their
terms, payable from the Special Tax levied against taxable real property in the United City of
Yorkville, Kendall County, Illinois, Special Service Area Number 2005 -108 (the "Special
Service Area") in accordance with the terms of (i) Ordinance Number adopted on
establishing the Special Service Area and (ii) the Indenture.
We are further of the opinion that, assuming compliance by the City with certain tax
covenants contained in the Ordinance and the Indenture, under existing law the Bonds are not
"private activity bonds" within the meaning of Section 141 of the Internal Revenue Code of
1986, as amended (the "Code ") and interest on the Bonds is not includible in "gross income" for
federal income tax purposes and thus is exempt from such taxes.
We are further of the opinion that, based upon an analysis of existing laws, regulations,
rulings and court decisions, and assuming, among other matters, compliance with certain
covenants, as described herein, interest on the Bonds, including any original issue discount
properly allocable to the holder of a Bond, is excluded from gross income for federal income tax
purposes under Section 103 of the Internal Revenue Code of 1986, as amended (the "Code ") and
United City of Yorkville
William Blair & Company, L.L.C.
Pulte Home Corporation
BNY Midwest Trust Company, as Trustee
,2006
is not a specific preference item for purposes of the federal individual or corporate alternative
minimum taxes. It should be noted, however, that, for the purposes of computing the alternative
minimum tax imposed on certain corporations (as defined for federal income tax purposes), such
interest is taken into account in determining adjusted current earnings. The opinion set forth in
the preceding sentence is subject to the condition that the City comply with all requirements of
the Code that must be satisfied subsequent to the issuance of the Bonds in order that interest
thereon be, or continue to be, excluded from gross income for federal income tax purposes. The
City has covenanted to comply with all such requirements. Failure to comply with certain of
such requirements may cause interest on the Bonds to be included in gross income for federal
income tax purposes retroactive to the date of issuance of the Bonds. We express no opinion
regarding other federal tax consequences related to the ownership or disposition of, or the
accrual or receipt of interest on, the Bonds.
It is to be understood that the right of the owners of the Bonds and the enforceability of
the Bonds, the ordinance authorizing their issuance and the Indenture may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors'
rights generally and by equitable principles, whether considered at law or in equity.
Interest on the Bonds is not exempt from present State of Illinois income taxes.
This opinion is given as of the date hereof and we assume no obligation to update or
supplement this opinion to reflect any facts or circumstances that may subsequently come to our
j attention or any changes in law that may hereafter occur.
Very truly yours,
FOLEY & LARDNER LLP
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EXHIBIT A -2
2006
I
United City of Yorkville William Blair & Company, L.L.C.
800 Game Farm Road 222 West Adams Street
Yorkville, Illinois 60560 Chicago, Illinois 60606
The Bank of New York Trust Company, N.A.
2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Re: $15,000,000
United City of Yorkville, Kendall County, Illinois
Special Service Area Number 2005 -108
Special Tax Bonds
Series 2006 (Autumn Creek Project)
Ladies and Gentlemen:
I
We have served as Bond Counsel to the United City of Yorkville, Kendall County,
Illinois (the "City") with respect to the issuance today of the $15,000,000 United City of
Yorkville, Kendall County, Illinois, Special Service Area Number 2005 -108 Special Tax Bonds,
Series 2006 (the `Bonds "). The Bonds are issued pursuant to an ordinance adopted by the City
on (the "Bond Ordinance "), a Determination of the City executed
pursuant thereto and a Trust Indenture dated as of March ' 2006 (the "Trust Indenture ")
between the City and The Bank of New York Trust Company, N.A., as trustee.
We have delivered to you an executed copy of our approving opinion, dated today,
addressed to you with respect to the Bonds. Based upon our examination as described in that
opinion, we are further of the opinion that the Bonds are not subject to the registration
requirements of the Securities Act of 1933, as amended, and the Trust Indenture is exempt from
qualification pursuant to the Trust Indenture Act of 1939, as amended.
We are further of the opinion that statements contained in the Limited Offering
Memorandum dated March 2006 relating to the Bonds under the sections entitled "THE
BONDS" (other than information under the caption "Book- Entry-Only System" as to which no
view is expressed); "SECURITY AND SOURCE OF PAYMENT FOR THE BONDS;" (other
than information under the captions "Market Absorption Study," "Summary of the Appraisal,"
"Value to Lien Ratio" and "Representative Property Taxes" as to which no view is expressed)
"THE SPECIAL SERVICE AREA AND SPECIAL TAXES" (other than information under the
captions "Levy Abatement and Collection of Special Taxes" and "Special Service Area Special
Tax Roll and Report" as to which no view is expressed); "TAX EXEMPTION ", and in Appendix
F - Bond Opinion thereto insofar as the statements contained under such sections or in such
1
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Appendix purport to describe or summarize certain provisions of the Bonds, the Bond Ordinance
and the Trust Indenture, or summarize such opinion, present an accurate description or summary
of such provisions and opinion.
Very truly yours,
FOLEY & LARDNER LLP
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EXHIBIT B
. 2006
United City of Yorkville Pulte Home Corporation
800 Game Farm Road 2250 Point Boulevard, Suite 401
Yorkville, Illinois 60560 Elgin, Illinois 60123
William Blair & Company, L.L.C. The Bank of New York Trust Company, N.A.,
222 West Adams Street as Trustee
Chicago, Illinois 60606 2 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Foley & Lardner LLP
321 North Clark Street, Suite 2800
Chicago, Illinois 60610
Re: $15,000,000 United City of Yorkville, Kendall County, Illinois Special
Service Area Number 2005 -108 Special Tax Bonds, Series 2006 (Autumn
Creek Project)
Ladies and Gentlemen:
We have served as counsel for the United City of Yorkville, Illinois (the "City") in
connection with the execution and delivery of the Bond Purchase Agreement dated March
2006 (the "Purchase Agreement ") by and among the City, William Blair & Company, L.L.C.
(the "Underwriter ") and Pulte Home Corporation (the "Developer") providing for the purchase
by the Underwriter of the United City of Yorkville, Kendall County, Illinois, Special Service
Area Number 2005 -108 Special Tax Bonds, Series 2006 (the "Bonds ") issued pursuant to a Trust
Indenture dated as of March _, 2006 (the "Trust Indenture ") between the City and The Bank of
New York Trust Company, N.A., as trustee. Terms used but not defined herein shall have the
meanings ascribed thereto in the Purchase Agreement. This opinion is being delivered to you at
the express direction of the City and pursuant to the Purchase Agreement.
In such capacity, we have examined the following:
a. the Purchase Agreement;
b. the Preliminary Limited Offering Memorandum of the City dated
2006 (the "Preliminary Limited Offering Memorandum ") and the Final Limited
Offering Memorandum of the City dated , 2006 relating to the Bonds .
(the "Final Limited Offering Memorandum ", and together with the Preliminary
Limited Offering Memorandum, the "Limited Offering Memorandum ");
C. the Public Infrastructure Agreement dated , 2006, among the
City and the Developer (the "Public Infrastructure Agreement ");
United City of Yorkville
William Blair & Company, L.L.C.
Foley & Lardner, LLP
Pulte Home Corporation
BNY Midwest Trust Company
, 2006
d. the Annexation Agreement and Planned Development Agreement, dated April 12,
2005 and among the Developer and the City (the "Annexation Agreement")
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e. the Trust Indenture;
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f. the Tax Compliance Certificate and Agreement dated March _, 2006 (the "Tax
Compliance Certificate "); and
g. City Ordinance No. adopted 2005 (the "Proposing
Ordinance"),, City Ordinance adopted on (the
"Establishing Ordinance ") and City Ordinance adopted on
(the "Bond Ordinance ");
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and such other documents as we have deemed necessary to render this Opinion.
As counsel to the City, we advised the City as to applicable requirements and performed
other legal services necessary in order to enable us to render the opinions set forth below.
Additionally, we participated in reviews and discussions with representatives of the Underwriter,
the Developer, Bond Counsel, and the Trustee relating to the Limited Offering Memorandum.
For the purposes of this opinion, we have assumed that:
i
a. The execution and delivery of all documents reviewed by us, and the entry into
and performance of the transactions contemplated by the Purchase Agreement, the
Public Infrastructure Agreement, the Annexation Agreement, and the Indenture
by all parties other than the City have been duly authorized by all necessary
actions and that said agreements constitute the valid and binding obligations of all
parties other than the City.
b. All natural persons who are signatories to the Purchase Agreement, the Public
Infrastructure Agreement, the Annexation Agreement, and the Indenture on behalf
of parties other than the City were legally competent at the time of execution.
C. All signatures on behalf of parties other than the City on said agreements and
other documents reviewed by us are genuine.
d. The copies of all documents submitted to us are accurate and complete and
conform to originals.
Based upon our familiarity with the City, and the proceedings, showings and related
matters of law with respect to the foregoing, but subject to the assumptions set forth herein, we
are of the opinion that:
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United City of Yorkville
William Blair & Company, L.L.C.
Foley & Lardner, LLP
Pulte Home Corporation
BNY Midwest Trust Company
, 2006
1. The City is a municipal corporation duly organized and validly existing under the
laws of the State of Illinois, and has full legal right, power and authority to adopt
the Bond Ordinance, the Proposing Ordinance and the Establishing Ordinance,
and to enter into, execute and deliver the Purchase Agreement, the Final Limited
Offering Memorandum, the Public Infrastructure Agreement, the Annexation
Agreement, the Indenture and the Tax Compliance Certificate (the foregoing
documents are hereafter collectively referred to as the "City Agreements "), to
consummate all transactions contemplated thereby, and to issue and sell the {
Bonds for the purposes described in the Limited Offering Memorandum.
2. Each of the members or officers of the City executing the City Agreements and
other closing documents executed in connection with the delivery of the Bonds
has been authorized to do so.
3. The Proposing Ordinance, the Establishing Ordinance, and the Bond Ordinance
were each duly authorized and adopted by the City at a meeting of the Board of
Trustees of the City, which was called and held pursuant to law and with the
public notice required by law and at which a quorum was present and acting
throughout and each such Ordinance is in full force and effect, and has not been
amended, modified, revoked, repealed or supplemented since the respective dates
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thereof.
4. Each of the City Agreements has been duly authorized by all necessary action on
the part of the City, has been duly executed and delivered by authorized officers
of the City and constitute legal, valid and binding obligations of the City
enforceable against the City in accordance with their respective terms, subject to
the qualification that the enforcement thereof may be limited by bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting creditors'
rights and by the availability of equitable remedies.
5. The Final Limited Offering Memorandum has been duly executed and delivered
by the City. The use by the Underwriter of the Limited Offering Memorandum in
connection with the offer and sale of the Bonds has been authorized and ratified
by the City.
6. The Bonds have been duly authorized by all necessary action on the part of the
City, have been duly executed by the authorized officers of the City and have
been validly issued by the City and constitute the legal, valid and binding
obligations of the City enforceable against the City in accordance with their
terms, subject to the qualification that the enforcement thereof may be limited by
laws relating to bankruptcy, insolvency, reorganization, moratorium or other
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United City of Yorkville
William Blair & Company, L.L.C.
Foley & Lardner, LLP
Pulte Home Corporation
BNY Midwest Trust Company
, 2006
similar laws affecting creditors' rights and by the availability of equitable
remedies.
7. Other than as set forth in the Limited Offering Memorandum, there is no action,
suit, proceeding, inquiry or investigation, at law or in equity, or by any court,
public board or body pending or, to our knowledge, threatened against or
affecting the City, or, to our knowledge, is there any basis for any such action,
suit, proceeding or investigation in any way (i) contesting or affecting the
proceedings under which the Bonds are to be issued and delivered; (ii) contesting
or affecting the collection, application or validity of the Special Taxes or the
special tax levy; (iii) contesting or affecting the creation, organization, existence
or powers of the City or the Area, or the titles of the Board of Trustees and
officers to their respective offices; (iv) which seeks to enjoin or restrain the
issuance, sale and delivery of the Bonds; (v) questioning or affecting any of the
rights, powers, duties or obligations of the City with respect to the Special Tax or
the monies and assets pledged or to be pledged to pay the principal of, premium,
if any, or interest on the Bonds; (vi) questioning or affecting any authority for the
issuance of the Bonds, or the validity or enforceability of the Bonds; or (vii)
questioning or affecting the City Agreements, the Bond Ordinance, the Proposing
Ordinance, the Establishing Ordinance or the transactions contemplated by the
City Agreements, the Bond Ordinance, the Proposing Ordinance, the Establishing
Ordinance or any activity regarding the Public Improvements to be financed by
the Bonds.
8. The authorization, execution and delivery by the City of the City Agreements do
not, and the compliance with the provisions thereof by the City, under the
circumstances contemplated therein, will not, in any material respect, conflict
with or constitute on the part of the City a breach of or default under any
agreement to which the City is a party under any law, regulation, order, ordinance
or consent decree of any court or governmental tribunal to which the City is
subject.
9. The adoption of the Bond Ordinance, the Proposing Ordinance, and the
Establishing Ordinance, the execution and delivery by the City of the Bonds and
compliance by the City with the provisions thereof, under the circumstances
contemplated thereby, do not and will not violate any applicable judgment, order
or regulation of any court or of any public or governmental agency or authority of
the State of Illinois and will not conflict with, or result in a breach of, any of the
terms and provisions of, or constitute a default under, any existing law, court or
administrative regulation, decree, order or any agreement, indenture, mortgage,
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United City of Yorkville
William Blair & Company, L.L.C.
Foley & Lardner, LLP
Pulte Home Corporation
BNY Midwest Trust Company
.2006
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lease or other instrument to which the City is subject or by which it is or may be
bound.
10. The Issuer has annexed and rezoned the Autumn Creek Subdivision as a special
use planned development in the City's Zoning District.
11. Based upon our familiarity with the City to the extent of our capacity as special
counsel to the City, our involvement in the negotiation of the City Agreements
and the issuance of the Bonds by the City, nothing has come to our attention and
we have no reason to believe that the information contained in the Limited
Offering Memorandum in the Masthead and in or under the captions
"INTRODUCTORY STATEMENT," "SECURITY AND SOURCE OF
PAYMENT FOR THE BONDS," "SUMMARY OF THE PUBLIC
INFRASTRUCTURE AGREEMENT," "SUMMARY OF THE ANNEXATION
AGREEMENT AND THE PLANNED DEVELOPMENT AGREEMENT,"
"THE CITY," "THE SPECIAL SERVICE AREA AND SPECIAL TAX,"
"CONTINUING DISCLOSURE" AND "NO LITIGATION —the City" (except
with respect to financial information and statistical data contained therein, as to_
which we express no opinion), contains any untrue statement of a material fact or
omits any material fact that is necessary to be stated therein in order to make the
statements therein, in light of the circumstances in which they were made, not
i misleading.
This opinion is limited to the matters set forth herein. No opinion may be inferred or
implied beyond the matters expressly contained herein. This opinion is rendered solely for the
benefit of the persons or entities to whom it is addressed and no other person or entity shall be
entitled to rely on any matters set forth herein without the express written consent of the
undersigned.
Very truly yours,
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John Wyeth, Esq.
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EXHIBIT C
I
. 2006
William Blair & Company, L.L.C. United City of Yorkville
222 West Adams Street 800 Game Farm Road
Chicago, Illinois 60606 Yorkville, Illinois 60560
Foley & Lardner LLP
321 North Clark Street, Suite 2800
Chicago, Illinois 60610
Re: $15,000,000 United City of Yorkville, Special Service Area Number 2005 -108
Special Tax Bonds, Series 2006
Ladies and Gentlemen:
We have acted as special counsel to Pulte Home Corporation, a Michigan corporation
(the "Developer ") in connection with the issuance by the United City of Yorkville, Illinois (the
"Issuer ") of $15,000,000 aggregate principal amount of its United City of Yorkville, Kendall
County, Illinois Special Service Area Number 2005 -108 Special Tax Bonds, Series 2006
(Autumn Creek Project) (the "Bonds ") to be purchased and then reoffered by William Blair &
Company, L.L.C. (the "Underwriter ").
In connection with the delivery of this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following documents:
I. The Bond Purchase Agreement dated March _, 2006 among the Underwriter, the
Developer, and the Issuer relating the Bonds (the "Bond Purchase Agreement ").
2. The Annexation Agreement and Planned Development Agreement among the
Developer and the City dated as of April 12, 2005, and recorded in Kendall County on
2005 as Doc. No. (the "Annexation Agreement ").
3. The Public Infrastructure Agreement dated 2006, among the
Developer and the City (the "Public Infrastructure Agreement ").
4. The Preliminary Limited Offering Memorandum dated ,
2006, and the Final Limited Offering Memorandum dated , 2006, relating to the
Bonds (collectively, the "Limited Offering Memorandum ").
The Bond Purchase Agreement, the Annexation Agreement, the Public Infrastructure
Agreement, the Limited Offering Memorandum and the Declaration are collectively referred to
herein as the "Transaction Documents."
William Blair & Company, L.L.C.
United City of Yorkville
Foley & Lardner LLP
.2006
We also have examined originals, executed counterparts or copies of such other
agreements, corporate records, instruments and certificates, certificates of public authorities and
such matters of law as we have deemed necessary for the purpose of rendering this opinion. To
the extent we deemed necessary for purposes of this opinion, we have relied upon: (i) the
statements and representations of officers of the Developer as to factual matters; (ii) the
corporate and company records provided to us by such officers; and (iii) certificates and other
documents obtained from public officials, and we have made no independent investigation of
such facts or information. We have further relied as to factual matters on the representations and
warranties contained in the Transaction Documents and we have assumed the completeness and
accuracy of all such representations and warranties as to factual matters.
We have assumed the genuineness of all signatures to documents we have reviewed
which we have not personally witnessed; the legal capacity of all individuals who have executed
the Transaction Documents and all other documents we have reviewed (other than the
Developer); the authenticity of all documents submitted to us as originals; that all material terms
and conditions of the relationship between the Developer, the Issuer, and the other parties to the
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Transaction Documents are correctly and completely reflected in the Transaction Documents;
and the conformity to original documents of all documents submitted to us as certified,
photostatic, reproduced, or conformed copies. We have also assumed that the Transaction
Documents have been duly authorized, executed, and delivered by each of the parties thereto
(other than the Developer) and are enforceable in accordance with their terms against such
parties and that the execution, delivery, and performance of the Transaction Documents by each
of the parties thereto (other than the Developer) does not and will not result in a breach of, or
constitute a default under, any agreement, instrument, or other documents to which such party is
a party or any order, judgment, writ or decree applicable to such party or to which such parry's
property is subject.
We have assumed that: (i) the Transaction Documents have been duly authorized,
executed and delivered by the parties thereto other than the Developer; is within the powers of
the parties thereto other than the Developer, constitutes the legal, valid and binding obligations
of the parties thereto other than the Developer and that the parties thereto other than the
Developer are in compliance with all applicable laws, rules and regulations governing the
conduct of their business in this transaction; (ii) the Transaction Documents will be enforced in
circumstances and in a manner which are commercially reasonable; and (iii) the parties thereto
other than the Developer are not subject to any statutes, rule or regulation or any impediment that
requires them to obtain the consent of, or to- make any declarations or filing with, any
governmental authority in connection with the transactions contemplated by the Transaction
Documents.
We are qualified to practice law in the State of Illinois, and we do not purport to express
any opinion herein concerning any law other than the laws of the State of Illinois, the general
corporate law of the State of Illinois with respect to the Developer, and the Federal laws of the
United States of America which may be applicable.
-2-
William Blair & Company, L.L.C.
United City of Yorkville
Foley & Lardner LLP
.2006
Based upon and subject to our examination as described above and subject to the
qualifications set forth herein, we are of the opinion that:
1. Organization and Power. Developer is a corporation duly organized and existing
under the laws of the State of Michigan. The officers of the Developer have all powers and
authority and all governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted and have all necessary authority to enter into and perform its
obligations under the Transaction Documents to which it is a party.
2. Authorization of Agreements. etc. The Transaction Documents have each been
duly authorized, executed, and delivered by the Developer (to the extent it is a party) and
constitute (to the extent it is a party) the legal, valid, and binding agreement of the Developer,
enforceable against it in accordance with their respective terms; provided that the enforceability
of such Transaction Documents may be limited by bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, and similar laws affecting the enforcement of creditor's
rights and remedies generally, as applied in the event of bankruptcy, reorganization, or
insolvency of the Developer and by general principles of equity.
3. No Material Change. To our knowledge, the Developer has not incurred any
material liabilities or entered into any material transactions other than in the ordinary course of
business which would affect its ability to perform its obligations pursuant to the Transaction
Documents to which it is a party.
4. Noncontravention. The execution, delivery, and performance of the Developer of
its obligations under the Transaction Documents to which it is a party do not and will not
contravene, or constitute a default under, any provision of the Illinois Business Corporation Act
of 1983, as amended; the organizational documents of the Developer; or, to our knowledge, of
any agreement, judgment, injunction, order, decree, or other instrument binding upon the
Developer; and the execution, delivery, and performance by each of the Developer of its
obligations under the Transaction Documents to which it is a party will not result in the creation
of any lien or other encumbrance upon any asset of the Developer except as set forth in the
Transaction Documents.
5. No Litigation. To our knowledge, there is no action, suit, proceeding, or
investigation, at law or in equity, before or by any court or any governmental agency or public
board or body, pending or threatened against the Developer, in which the Developer is a party,
which: (i) contests in any way: (a) the acquisition, construction, and development of the
property commonly known as the Autumn Creek Subdivision, (b) the collection of the
assessment, or (c) the transaction contemplated by the issuance of the Bonds or as otherwise
described in the Limited Offering Memorandum; (ii) in any way contests the existence or power
of the Developer, or the validity or enforceability of the Bonds, the Transaction Documents or
the Limited Offering Memorandum; or (iii) which if adversely determined could have a material
adverse effect on the Developer.
-3-
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William Blair & Company, L.L.C.
United City of Yorkville
Foley & Lardner LLP
.2006
6. No Default. To our knowledge, no default or event of default has occurred and is
continuing, and no event has occurred and is continuing which with the lapse of time or the
giving of notice, or both, would constitute a default or an event of default on the part of the
Developer under any other material agreement or material instrument (excluding the Transaction
Documents) to which the Developer is a parry or by which the Developer is or may be bound,
which default or event of default would have a material adverse effect on the transactions
contemplated by the Transaction Documents.
7. Conditions Precedent. All of the conditions precedent to the obligations of the
Developer arising under the Public Infrastructure Agreement and the Bond Purchase Agreement
have been satisfied.
8. Anvrovals. Consents. etc. To our knowledge, no consent or approval is required
to be obtained from, and no action need be taken by, or document filed with, any governmental
body or corporate entity in connection with the execution, delivery and performance by the
Transaction Documents to which each is a party, or, if any such action is required, the same has
been duly taken, is in full force and effect and constitutes valid and sufficient consent or
approval thereof, except for any approvals or consents required for the offer and sale of the
Bonds under any federal securities or state "blue sky" laws and those approvals which are
customarily obtained during the construction of the Public Improvements.
9. The statements contained in the portions of the Limited Offering Memorandum
under the captions "INTRODUCTORY STATEMENT" (except the penultimate paragraph
therein); "THE BONDS"; "PLAN OF FINANCE"; "SECURITY AND SOURCE OF
PAYMENT FOR THE BONDS"; "SUMMARY OF THE PUBLIC INFRASTRUCTURE
AGREEMENT"; "SUMMARY OF ANNEXATION AGREEMENT AND PLANNED
DEVELOPMENT AGREEMENT"; "THE SPECIAL SERVICE AREA AND SPECIAL TAX";
"PROPOSED DEVELOPMENT"; "RISK FACTORS"; "CONTINUING INFORMATION -The
Developer "; "NO LITIGATION — The Developer ", are a fair and accurate summary of the
matters presented.
In connection with our review of the Limited Offering Memorandum, although we have
not independently verified and do not pass upon, and do not assume responsibility for the
accuracy, completeness or fairness of the statements contained in the Limited Offering
Memorandum, except as set forth in Paragraph 9 above, nothing has come to our attention that
would lead us to believe that the Limited Offering Memorandum as of its date contained any
untrue statement of a material fact or omitted to state a material fact required to be stated therein,
or necessary to make the statements therein, in light of the circumstances under which they were
' made, not misleading.
The foregoing opinions are limited and qualified in that wherever we indicate that our
opinion with respect to the existence or absence of facts is based on our knowledge, our opinion
is based on (a) our current actual knowledge of the transactions contemplated by the Transaction
-4-
William Blair & Company, L.L.C.
United City of Yorkville
Foley & Lardner LLP
2006
Documents and (b) the representations and warranties contained in the Transaction Documents.
Except as otherwise indicated herein, we have made no independent investigation as to such
factual matters and disclaim any responsibility to do so. However, we have no actual knowledge
of any facts which lead us to believe such factual matters are untrue or inaccurate.
We express no opinion as to the validity or enforceability of any provision of the
Transaction Documents to which the Developer is a party which (i) purports to waive any
requirement of diligent performance, notice or other procedure (statutory or otherwise) on the
part of anyone other than the Developer; or (ii) purports to waive or limit the right to assert any
claims, defenses, charges, or set -offs which the Developer may have at law or in equity; or (iii)
provides that waivers, consents, amendments, or modifications must be in writing; or (iv)
provides that certain actions or inactions by anyone other than the Developer will not constitute a
waiver; or (v) provides that any obligations of the Developer will not be affected by
amendments, changes; or modifications in any of the Transaction Documents; or (vi) provides
that the Developer shall indemnify anyone for any matter without regard to such party's
negligence or wrongful actions with regard to such matter; provided, however, the invalidity or
unenforceability of any such provision would not, in our opinion, render the Transaction
Documents invalid as a whole, and there exists in the Transaction Documents or pursuant to
applicable law legally adequate remedies for the practical realization of the principal benefits and
security provided by the Transaction Documents.,
This opinion is limited to the matters set forth herein. No opinion may be inferred or
implied beyond the matters expressly contained herein. The opinion is for your use only, and
may not be relied upon by any other person or entity without our prior written consent. This
opinion is rendered only with respect to the laws and regulations there under which are in effect
as of the date hereof. We assume no responsibility for updating this opinion to take into account
any event, action, interpretation or change of law occurring subsequent to the date hereof that
may affect the validity of any of the opinions expressed herein.
Very truly yours,
GARDNER, CARTON & DOUGLAS, L.L.P.
By:
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Exhibit D
Public Infrastructure A greement
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CH12 6D3856.3
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DRAFT
3/15/2006 2 :40 PM
PUBLIC INFRASTRUCTURE AGREEMENT FOR
UNITED CITY OF YORKVILLE SPECIAL SERVICE AREA NUMBER 2005 -108:
AUTUMN CREEK PROJECT
I
This Public Infrastructure Agreement (this "Agreement ") entered into this day of
March, 2006 is between the United City of Yorkville, Illinois, a municipal corporation organized
and existing under and by virtue of the Constitution and laws of the State of Illinois (the "City"),
and Pulte Home Corporation, a Michigan corporation (the "Developer"). The City and the
Developer are sometimes hereinafter referred to individually as a "Party" and collectively as the
"Parties."
RECITALS
A. The Developer owns title to that certain real estate located in Kendall County,
Illinois and the City, which is legally described in Exhibit A hereto and designated thereon as the
"Property" (hereinafter "Property" or "Area").
B. The Developer desires to develop the Area with up to 317 single family detached
units and 258 townhome units (together "Dwelling Units ") in a subdivision to be known as
"Autumn Creek" (the "Development"). The Development shall be constructed as generally
described in the Planned Unit Development Agreement dated April 12, 2005, among the City,
the Developer and the former owners of the Property with respect to the Property as amended
from time to time (collectively, the "PUD Agreement "), the preliminary plat and preliminary
engineering plans for the Property approved by the City on April 12, 2005 ( "Preliminary Plat and
Preliminary Engineering Plans ") and the final plats and final engineering plans approved from
time to time by the City ( "Final Plats and Engineering Plans ") (collectively, "Entitlement
Documents" or "Entitlements ").
C. The City has authority to enter into this agreement under the Special Service Tax
Law, 35 ILCS 200/27 et seq. and the Illinois Constitution Article VII Section 7.
D. In the Entitlement Documents, the City requires that certain on site and off site
improvements be constructed in connection with the Development and certain rights -of -way be
dedicated or easements granted to the City. —
E. The Public Improvements (as hereinafter defined) are unique and special services
within the meaning of 35 ILCS 200/ 27 -5 that will benefit the Area specially and are in addition
to the municipal services provided to the City as a whole. All of the Public Improvements are to
be located in either publicly dedicated rights -of -way, on public lands or in publicly dedicated
easements and shall generally consist of and include engineering, soil testing and appurtenant
CHOI/ 12460955.7
work, mass grading and demolition, storm water management facilities, storm drainage systems
and storm sewers, site clearing and tree removal, public water facilities, sanctuary sewer
facilities, erosion control measures, roads, streets, curbs, gutters, street lighting, traffic controls,
sidewalks, equestrian paths and related street improvements, and equipment and materials
necessary for the maintenance thereof, landscaping, wetland mitigation and tree installation,
required tap -on and related fees for water or sanitary sewer services, costs for land and easement
acquisitions or dedications relating to any of the foregoing improvements, and other eligible
costs, soil reports, erosion control improvements, to pay capitalized interest; to establish a
reserve fund; to pay issuance costs; to pay the Special Service Area Number 2005 -108
administration costs; and to reimburse the City for its expenses including but not limited to legal
fees relating to the Bonds and the cost of acquiring title to, or easements with respect to, or
dedications of, land on which Public Improvements are located or are to be located (collectively
the "Public Improvements "). The Public Improvements and the estimated related costs are
attached hereto as Exhibit B. The Public Improvements are describedl in more detail in the
Entitlement Documents and the Exhibits attached thereto. Without limiting the foregoing, Public
Improvements shall include land which is dedicated or conveyed to the City or easements in
favor of the City for public purposes which are created by plats of subdivision, plats of
dedication or otherwise granted to the City.
F. The City Council of the City (the "Corporate Authorities ") determined in City
Ordinance Number 2005 -100 that the Area would benefit specially from construction of the
Public Improvements and that it would be in the best interest of the City to adopt an ordinance
(the "Establishing Ordinance ") designating the Area as a "Special Service Area Number 2005-
108" pursuant to Article VII, Section 7 of the Illinois Constitution and the Illinois Special
Service Area Tax Law, 35 ILCS 200/27 -5 et seq. and authorizing the levy of special service area
taxes upon the taxable real property within the Special Service Area Number 2005 -108. -
G. No later than , 2006, or such later date as agreed to between
the Parties, the Corporate Authorities shall adopt an ordinance to be drafted by the City's Bond
Counsel (the "Bond Ordinance ") authorizing the issuance of the United City of Yorkville,
Kendall County, Illinois, Special Service Area Number 2005 -108 Special Tax Bonds, Series
2006 (Autumn Creek Project) (the "Bonds ") to pay a portion of the costs for the Public
Improvements, including the financing and other costs associated with the funding of the Public
Improvements.
i
H. The Parties agree that the Developer shall construct the Public Improvements on
behalf of the City and in accordance with the terms and provisions of the Entitlement
Documents. The proceeds from the sale of the Bonds shall be under the control of the City and
shall be used to pay for the Public Improvements.
1. The proceeds from the sale of the Bonds (the "Bond Proceeds ") to be used by the
City to pay for the Public Improvements shall be held by an institutional trustee, as trustee for the
CHOI/ 12460955.7 2
I
Bond Holders ( "Trustee "), in an account entitled the "Improvement Fund" in accordance with a
trust indenture relating to the Bonds (the "Trust Indenture ").
J. The Corporate Authorities determined that the Development is in the vital and
best interest of the City and the health, safety, morals and welfare of its residents, that property
within Special Service Area Number 2005 -108 will benefit specially from the municipal services
to be provided to the Area and the financing of the Public Improvements by the City is in
accordance with the public purposes and provisions of applicable state and local laws.
K. This Agreement has been submitted to the Corporate Authorities for consideration
and review, and the Corporate Authorities have taken all actions required to be taken prior to the
execution of this Agreement in order to make the same binding upon the City according to the
terms hereof. The Developer has taken all actions necessary and adopted the proper resolutions
to make this Agreement binding upon the Developer according to the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the City and the Developer hereby agree as
follows:
ARTICLE ONE
Recitals Part of Agreement
The representations, covenants and recitations set forth in the foregoing recitals are
material to this Agreement and are hereby incorporated into and made a part of this Agreement
as though they were fully set forth in this Article One.
ARTICLE TWO
Mutual Assistance
The Developer and City agree to take such actions, including the execution and delivery
of such documents, instruments, petitions, certifications (and in the City's case, the adoption of
such ordinances and resolutions), as may be necessary or appropriate from time to time to carry
out the terms, provisions and intent of this Agreement and to aid and assist each other in carrying
out said terms, provisions and intent.
ARTICLE THREE
Construction of the Public Improvements
3.1 Construction of Public Improvements by the Developer. As required by the
Illinois Special Service Area Tax Law, 35 ILCS 200/27 -5 et seq., the Public Improvements
provide a special service specific and unique to the Area, and are essential to the Development;
the Developer shall construct the Public Improvements for the benefit of and on behalf of the
CHOU 12460955.7 3
City as provided in this Article Three. Construction of the Public Improvements shall commence
within six months after the sale of the Bonds. With respect to the Public Improvements to be
constructed with the Bond Proceeds, such proceeds shall be fully expended on the Public
Improvements within thirty -six (36) months after the sale of the Bonds, provided that all
necessary approvals and permits have been granted by the City. With respect to all Public
Improvements, they shall be dedicated or conveyed to the City after the sale of the Bonds as
provided in the PUD Agreement, provided that all necessary approvals and permits have been
granted by the City. The Public Improvements shall be paid for as provided in Article Six of this
Agreement.
3.2 Dutv of the Developer to Construct.
(a) The Developer, on behalf of the City, shall cause the Public Improvements to be
constructed as a special and unique benefit to the Area. In accordance, with the Entitlement
Documents, all Public Improvements shall be located in either publicly dedicated rights -of -way,
on public lands or in publicly dedicated easements. The City acknowledges that it does not
intend to design, bid or construct the Public Improvements. The City agrees that the Developer
shall construct the Public Improvements using subcontractors and materialmen selected from
time to time by the Developer in the Developer's sole discretion without advertising for bids as
permitted by the provisions of Section 65 ILCS 5/8 -9 -1 of the Illinois Municipal Code. All
Public Improvements to be constructed hereunder shall be constructed in substantial accordance
with all applicable laws, ordinances and rules as modified by the Entitlement Documents and
j shall be constructed in a good workmanlike fashion and commercially reasonable manner. At all
times, the Developer shall employ and/or contract with adequate staff, consultants and
contractors possessing the requisite experience necessary to administer and coordinate the
construction of the Public Improvements.
(b) The City agrees to accept the Public Improvements provided that the Developer
follows the provisions contained in Section 5.1 of this Agreement.
(c) The Parties agree that the Developer shall receive payment for the construction,
conveyance, dedication or grant of easement of the Public Improvements in an amount equal to
the amount or amounts shown on the budget or budgets attached hereto as Exhibit B (the
`Budgeted Amount "). In the event that the actual cost of constructing a particular Public
Improvement exceeds the cost budgeted for that Public Improvement ("Excess Cost "), the
Developer shall be permitted to utilize funds allocated to other Public Improvements to pay the
Excess Cost; provided, however, that any Public Improvements to be paid for with Bond
Proceeds must be in conformity with the United City of Yorkville Special Service Area Number
2005 -108 Special Tax Roll and Report ( "Special Tax Roll ") prepared by David Taussig &
Associates, Inc. and its successors and assigns or any other firm selected by the City to assist it in
administering the Special Service Area Number 2005 -108 and the extension and collection of
Special Taxes pursuant to the Special Tax Roll ( "Consultant "). The Developer and the City shall
CH01/ 12460955.7
4
cooperate with each other and shall each use their best efforts to cause the cost of constructing
the Public Improvements to be no more than the Budgeted Amount.
(d) Subject to Article 8 of this Agreement, if the Developer fails to complete the
Public Improvements within the time specified herein, or an extensions of time
p p y granted by the
City (which extension shall not be unreasonably withheld) or the Developer abandons the project
(ceases all work for a period of six (6) consecutive months without reasonable cause for delay),
and if as a result, a breach of this Agreement occurs (subject to the terms of Section 9.3 of this
Agreement), the City has the right, but not the obligation to complete the Public Improvements
using the remaining Bond Proceeds on deposit in the Improvement Fund to pay for the
completion of the Public Improvements identified in the Project Budget attached in Exhibit B
under the caption Bond Proceeds. Additionally, to the extent that the remaining Bond Proceeds
are not sufficient to pay for the reasonable costs of such completion of the Public Improvements
by the City the City shall have the right to draw upon the performance bond identified in Section
3.8 for such reasonable additional costs of completion. Upon completion of the Public
Improvements by the City, the City shall issue to Developer a written Certificate of Completion
of the Public Improvements.
(e) Upon completion and acceptance of all Public Improvements of a particular
phase, the Developer shall provide the City with a one year maintenance guarantee. Upon the
expiration of said year, the maintenance, repair, restoration, and reconstruction of all Public
Improvements shall be at the sole cost and expense of the City.
3.3 Submission and Approval of Plans and Eneineerine. All work with respect to the
construction of the Public Improvements by the Developer shall be performed in conformance
with the approved Final Plats and Engineering Plans. The City acknowledged that it has
approved of the Final Plats and Engineering for the Development (collectively "Construction
Plans ").
3.4 Public Improvements Constructed on City's Ri¢ht- of -Wav and Public Lands.
The City hereby grants or shall cause to be granted to the Developer easements and/or licenses
with respect to the City's right -of -way and public lands and private property (which the City has
acquired easements over) for which some or all of the on site or off site Public Improvements are
required and which are necessary to permit the Developer to construct the Public Improvements
in a form and substance acceptable to the Developer and the City. All such easements and
licenses shall be duly executed and, if necessary, recorded, prior to the commencement of
construction, provided, however, that the City shall use its best efforts to cause an easement from
ComEd to be executed as soon as possible, following the date hereof. Notwithstanding the
foregoing, the Developer agrees that all Public Improvements shall be constructed within
publicly dedicated rights -of -way, on public lands or in publicly dedicated easements or in private
easements granted to the City by owners of real estate provided. If the City has not fulfilled its
responsibility to obtain the required off -site easements and licenses, and the Developer requests
CHOU 12460955.7 5
Final Plat approval, the approval shall be given if the Developer can provide the City with
assurances that all such licenses or easements will be acquired.
3.5 Conformance to Federal. State. and Local Reauirement. Subject to the provisions
of the Entitlement Documents, all work with respect to the Public Improvements shall conform
to all applicable ordinances, codes, rules and regulations in effect as of the date of this
Agreement and all applicable federal, state and local laws, regulations, codes, rules and
ordinances including, without limitation, the City's Subdivision Control Ordinance as of April
i 12, 2005; provided, however, that the City may not adopt any ordinances, rules or regulations
I which discriminate against the Developer or which will cause the cost of the Public
Improvements to increase.
3.6 Insurance. Prior to commencement of construction of the Public Improvements,
the Developer shall cause to be procured and delivered to the City, at the Developer's sole cost
and expense, and shall maintain in full force and effect until construction of the Public
Improvements has been completed, commercial liability insurance and, during any period of
construction, contractor's liability insurance and worker's compensation insurance, with liability
coverage under the commercial liability insurance of not less than One Million Dollars per
occurrence and Two Million Dollars in the aggregate (which may be in the form of umbrella
coverage) and limits under the other policies of insurance in accordance with statute, all such
policies to be in such form and issued by such companies as shall be reasonably acceptable to the
City, to protect the City and the Developer against any liability incidental to the use of, or
resulting from, any accident occurring on or about the Public Improvements or the construction
of an improvement thereof. Each such policy shall name the City as an additional named insured
party.
3.7 Rip-hts of Inspection. During construction of the Public Improvements, the City
or its designee shall have the right at any time and from time to time to enter upon the Property
for the purpose of conducting such inspections as the City may deem appropriate. In the event
that the City or its designee discovers a defect or deficiency in the construction of the Public
Improvements, the City or its designee shall promptly notify the Developer thereof. Any such
inspection by the City of the Public Improvements shall not be construed as a representation by
the City that there has been compliance with the Construction Plans or that the Public
Improvements will be or are free of faulty materials or workmanship, or as a waiver of any right
that the City or any other party may have against the Developer or any other party for failure to
comply with the Construction Plans or the provisions of this Agreement.
3.8 Securitv for Public Improvements. The City hereby agrees that no security shall
be required for that portion of the cost of the Public Improvements that are paid, or to be paid,
from the Bond Proceeds. To the extent the Bond Proceeds are insufficient to pay for the cost of
the Public Improvements (the "Insufficient Amount "), then, the Developer will provide the City
with a performance bond for the Insufficient Amount in an amount not to exceed 110% of the
Insufficient Amount. In the event that the Bond Proceeds are insufficient to complete the Public
CHOI/ 12460955.7 6
I
Improvements, the City may draw upon the performance bond for payment of any Public
Improvements according to the procedures set forth in its subdivision code.
3.9 Acceptance of Public Improvements. The City's acceptance of the Public
Improvements shall be in accordance with the provisions of Section 5.1 of this Agreement.
3.10 Density. In no event shall any ordinance of the City amend the Entitlement
Documents nor shall the Developer be required to draw any subdivision plat in such a way as to
result in less than 317 single family units and 258 townhome units being permitted to be
constructed on the Property unless mutually agreed in writing by the City and the Developer. In
the event a reduction in density causes the Maximum Parcel Special Tax, as defined in the
Special Tax Roll and Report, to be reduced such that the annual debt service coverage ratio
calculated pursuant to Section VI G of the Special Tax Roll and Report is less than 110 %, the
Owner shall be responsible for mandatory prepayment of Special Taxes to be applied to the
mandatory redemption of bonds, pursuant to Section 4.3 of the Trust Indenture, in an amount
sufficient to increase the annual debt service coverage ratio to 110 %.
3.11 Administration of SSA. The City shall contract with an administrator or
consultant to administer the Special Service Area Number 2005 -108, including, without
limitation, calculation, levy, abatement, administration and collection of the special tax for said
Special Service Area Number 2005 -108, on such terms as shall be reasonably agreed to between
the parties. The costs related to the Administration of the Special Service Area Number 2005 -
108 shall be payable from the special tax collections.
ARTICLE FOUR
Developer Indemnification of the Citv
The Developer agrees to indemnify, defend and hold the City and its officers, employees,
attorneys, engineers and consultants harmless from and against any claim, action, suit,
proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense
(including, without limitation, reasonable attorneys' fees), to the extent resulting from, arising
out of, or based upon: (i) any breach or default on the part of the Developer in the performance
of any of its obligations under or in respect of this Agreement; (ii) any act of negligence of the
Developer or any of its agents, contractors, servants or employees; or (iii) any violation by the
Developer of any easements, law, ordinances or codes affecting the Area, the Development or
the Public Improvements. In case any such claim shall be made or action brought based upon any
such claim in respect of which indemnity may be sought against the Developer, upon receipt of
notice in writing from the City setting forth the particulars of such claim or action, the Developer
shall assume the defense thereof including the employment of counsel reasonably acceptable to
the City and the payment of all costs and expenses. The City shall have the right to employ
separate counsel in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the City.
CHO1/ 12460955.7 7
ARTICLE FIVE
Payment for Public Improvements
5.1 Improvements to be Constructed.
(a) Reauest for Payment. The Developer may submit to the City Engineer or his
designee and send a copy to the Consultant not more frequently than once each calendar month,
a written request as provided in Exhibit C ( "Request for Payment ") for payment of the
Developer's costs of constructing those portions of the Public Improvements which have been
completed to date and/or for the payment or reimbursement of other costs shown on Exhibit B,
including the cost of the acquisition of title to, or easements with respect to, land on which
Public Improvements are located or are to be located. The City Engineer shall inspect each
portion of the Public Improvements for which payment is requested and shall, within ten (10)
business days after submission of a Request for Payment, make its inspection and, if the City
Engineer confirms that the work for which payment is requested has been done, the City
Administrator shall, within two (2) business days of the inspection, (i) execute and deliver to the
Developer a certificate of completion and acceptance ( "Acceptance Certificate ") indicating the
City's acceptance of such work, and (ii) execute and deliver to the Developer and to the Trustee
a written statement in the form attached hereto as Exhibit D ( "Disbursement Request ")
approving the payment of funds as provided therein.
(b) Denial of Compliance. If, in the City Engineer's reasonable opinion, any portion
of the work is not in compliance with the Construction Plans, the City Engineer shall within ten
(10) business days after submission of a Request for Payment notify the Developer in writing
( "Non- Compliance Notice ") of (1) the specific improvements which it believes are not in
compliance with the Construction Plans, (2) the reasons why it believes that the work is not in
compliance with the Construction Plans and (3) the reasons why it is not approving a portion or
all of the requested disbursement together with reasonably detailed explanations thereof.
Developer will have five (5) business days after receipt of such Non - Compliance Notice to
remedy such work, subject to the Unavoidable Delay provisions of Article 8 and further provided
that in the event such work cannot be remedied within such five (5) day period, and Developer is
diligently pursuing such remedy, Developer shall have a period of thirty (30) days after receipt of
such Non - Compliance Notice to remedy such work. However, to the extent that the Request for
Payment relates to multiple Public Improvements and the City Engineer confirms that some of j
the Public Improvements addressed by the Request for Payment are complete, the City
Administrator shall (i) execute and deliver to the Developer an Acceptance Certificate for that
portion of the Public Improvements which are accepted by the City, and (ii) execute and deliver
i
to the Developer, the Consultant and the Trustee a Disbursement Request for the Public
Improvements which have been completed.
(c) Release of Funds. At such time as work covered by a Request for Payment is
approved by the City Engineer, subject to the provisions of the Trust Indenture, the City
Administrator shall deliver a Disbursement Request to the Trustee directing the Trustee to
i CHOI/ 12460955.7 8
disburse to the Developer the amount of funds provided for in the Disbursement Request to the
extent that funds are available in the Improvement Fund.
(d) Failure to Inspect. Should the City upon written request by the Developer fail to
inspect any portion of the Public Improvements within the time period designated above or to
send either an Acceptance Certificate or a Non - Compliance Notice, subject to the Unavoidable
Delay provisions identified in Article Eight, at that time such portion of the Public Improvements
shall be deemed accepted by the City.
I
5.2 Conditions Precedent to Payment. The City Engineer shall authorize the
distribution of funds by the Trustee to the Developer to pay for those portions of the Public
Improvements which have been completed upon satisfaction of the following conditions:
(a) The Developer has submitted to the City Engineer, with a. copy to the Consultant,
a Request for Payment with respect to such portions of the public improvements and the City
Engineer has issued, or is required to issue, a Disbursement Request to the Trustee with respect
I
thereto;
(b) The Developer has caused a title insurance company licensed to do business in
j Illinois ( "Title Company ") to issue to the Trustee and the City Engineer a letter of commitment
whereby the Title Company insures the Trustee and the City from any and all mechanic's lien
claims with respect to work covered by the Disbursement Request. Alternatively, the Developer
may request that the City Engineer direct the Trustee to disburse the funds into a construction
escrow account with the Title Company with directions that the Title Company shall not release
any funds to any subcontractor or materialmen unless and until appropriate lien waivers and
supporting affidavits to the satisfaction of the Title Company have been received by the Title
Company; and
(c) Subject to the Unavoidable Delay provisions of Article Eight and the Notice and
cure provisions of Section 9.3 of this Agreement, the Developer is not in default under this
Agreement.
5.3 Bond Proceeds.
(a) The Bond Proceeds shall be deposited, held, invested, reinvested and disbursed as
provided in the Trust Indenture. Sufficient Bond Proceeds shall be deposited in the Improvement
Fund, which, together with anticipated interest earnings, will fully fund the budgeted amounts set
forth in Exhibit B under the heading "Bond Proceeds" for the Public Improvements. Monies in
the Improvement Fund shall be withdrawn therefrom in accordance with the provisions of the
Trust Indenture and the applicable provisions of this Agreement for payment of all or a portion
of the cost of constructing the Public Improvements. The Developer understands and agrees that
the City alone shall deliver to the Trustee a direction as to the investment of funds on deposit in
the funds and accounts established by or pursuant to the Trust Indenture, including the
CHOI/ 12460955.7 9
Improvement Fund; provided, however, the City shall consult with the Developer so long as the
Developer or its affiliate is the legal or beneficial owner of at least 50% of the lots improved, or
to be improved as to the investment of such funds so long as there are funds available in the
Improvement Fund.
I
(b) Except in the event of fraud or gross negligence, the City shall have no
responsibility whatsoever to the Developer with respect to any investment of funds made by the
Trustee under the Trust Indenture, including any loss of all or a portion of the principal invested
or any penalty for liquidation of investment. Any such loss may diminish the amounts available
in the Improvement Fund to pay the cost of constructing the Public Improvements. The
Developer further acknowledges that the obligation of any owner of real property in the
Development, including the Developer to the extent it owns any property in the Development, to
pay special service area taxes is not in any way dependent on the availability of amounts in the
Improvement Fund to pay for all or any portion of Public Improvements. The Developer
acknowledges that any lack of availability of amounts in the Improvement Fund to pay the cost
of constructing the Public Improvements shall in no way diminish any obligation of the
Developer with respect to the construction of the Public Improvements in accordance with this
Agreement or any other agreement relating to the Development and to which the Developer is a
per'
i
(c) The City agrees not to initiate or approve any amendment to the Trust Indenture
that affects the Improvement Fund without the express written consent of the Developer.
5.4 Limited Liabilitv of Citv. The Developer agrees that any and all obligations of
the City arising out of or related to this Agreement are special and limited obligations of the City
and the City's obligations to make any payments under this Agreement are restricted entirely to
the monies, if any, in and available for disbursement from the Improvement Fund and from no
other source. Except in the event of fraud or gross negligence, no member of the Corporate
Authorities, or any City staff member, employee or agent, or consultant, including attorneys and
engineers, shall incur any liability under this Agreement to the Developer or any other parry in
their individual capacities by reason of their actions under this Agreement or the execution of
this Agreement.
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ARTICLE SIX
Other Agreements
6.1 Continuing Disclosure. The Developer agrees to provide to the City (except as
otherwise provided), the underwriter of the Bonds ("Underwriter "), and the Notice Beneficial
Holders (as defined in the Trust Indenture) and the Consultant certain continuing information
concerning the development of the Property until such time as a total of 90 percent of the
Dwelling Units are sold. This information includes the following: quarterly reports to the City,
CHOI/ 12460955.7 10
the Underwriter, the Notice Beneficial Holders, and the Consultant setting forth (A) the number
of single - family detached home and townhome sales and the range of sale prices for such units,
(B) a description of the type of such units, (C) the number of single - family detached homes and
townhomes constructed on the Property, (D) the number of sales of single- family detached
homes and townhomes closed, (E) any bulk property sales, (F) any pending litigation which
would adversely affect the ability of the Developer to develop the Property or to pay the Special
Tax for Special Service Area Number 2005 -108, (G) any material change in the structure or
ownership of the Developer, (H) any failure of the Developer or affiliate of the Developer to pay
by the date due general ad valorem property taxes, the Special Tax for Special Service Area
Number 2005 -108, or any other governmental charge on the Property, (I) any denial or
termination of credit, (J) any denial or termination of, or default under, any letter of credit, line
of credit or loan or any other loss of a source of funds that the Developer has reason to believe is
likely to have a material adverse effect on the ability of the Developer to develop the Property,
(K) the occurrence of any event of bankruptcy with respect to the Developer or any affiliate of
the Developer, (L) any significant amendments to land use entitlements for the Property if such
amendments are likely to prevent or delay the development of the Property, (M) any previously
undisclosed governmentally- imposed preconditions to commencement or continuation of
development of the Property if such preconditions are likely to prevent or delay the development
of the Property, (N) any previously undisclosed legislative, administrative or judicial challenges
to development of the Property or the collection of the Special Tax for Special Service Area
Number 2005 -108, and (0) any changes of which the Developer is aware, if material, in the
alignment, design or likelihood of completion of significant public improvements affecting the
Property, including major thoroughfares, sewers, water conveyance systems and similar
facilities. Quarterly reports shall be made available within 30 days after the end of each calendar
quarter. In addition, the Developer shall use its best efforts to provide prompt notice of any of the
events listed in (F) through (0). Until such time as 90% of the units are sold as verified in
writing by the Developer to the City and the Underwriter, upon prior written notice to Developer
by the Notice Beneficial Holders, Developer shall make its current annual financial statements
available for review by the Notice Beneficial Holders at Developer's offices.
6.2 Amendment to Entitlement Documents. To the extent any amendments to the
Entitlement Documents are necessary, the City and the Developer agree to work together and use
their best efforts to amend those certain Entitlement Documents, to incorporate the relevant
provisions of this Agreement as they apply to the Property; provided, however, that no such
amendments nor any future amendments shall materially affect the rights of the Special Service
Area Number 2005 -108 bondholders. No such amendment shall result in an increase in the
Special Taxes owed by property owners pursuant to the Special Tax Report.
6.3 Sale of the Pronertv. The City agrees that the Developer shall have the right to
either build on the Property or sell developed lots to other builders or to convey any or all of the
property at any time after the date of this Agreement. The Developer shall notify the
Underwriter, the City and the Consultant prior to the sale of any portion of the Property other
than the sale of an individual Dwelling Unit.
ARTICLE SEVEN
CHOI/ 12460955.7 I 1
Authority
7.1 Powers Each Parry hereby represents and warrants to the other Party that the
Party making such representation and warranty has full constitutional and lawful right, power
and authority, under currently applicable law, to execute, deliver and perform the terms and
obligations of this Agreement, and all of the foregoing have been or will be duly and validly
authorized and approved by all necessary City proceedings, findings and actions and all
necessary Developer actions. Accordingly, this Agreement constitutes the legal, valid and
binding obligation of the City and the Developer, enforceable in accordance with its terms and
provisions and does not require the consent of any other governmental authority.
7.2 Authorized Parties. Whenever under the provisions of this Agreement and other
related documents and instruments or any supplemental agreements, any request, demand,
approval, notice or consent of the City or the Developer is required, or the, City or the Developer
is required to agree or to take some action at the request of the other party, such request, demand,
approval, notice or consent, or agreement shall be given for the City, unless otherwise provided
herein, by the City Mayor or his or her written designee and for the Developer by its President,
or his written designee; and either party shall be authorized to act on any, such request, demand,
approval, notice or consent, or agreement or other action and neither party hereto shall have any
complaint against the other party as a result of any such action taken.
ARTICLE EIGHT
Unavoidable Delays
8.1 The time for performance by Developer shall be extended by a period of time
equal to the time of delay caused by any of the following reasons (herein called "Unavoidable
Delays "): Acts of God, acts of the Public Enemy, or acts of fire, strikes, flood, governmental
orders or edicts, governmental rationing or allocation of materials, adverse weather conditions,
lockouts, riots, strikes, or any other cause beyond the reasonable control of Developer.
ARTICLE NINE
General Provisions
9.1 Rider to Sales Contracts. The Developer agrees to attach a Rider, or one
substantially similar to the forms attached hereto as Exhibit E -1 and Exhibit E -2, to all sales j
contracts for the sale of single - family detached homes or townhomes, as the case may be. j
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9.2 Time of Essence. Time is of the essence of this Agreement.
9.3 Breach A party shall be in "breach of this Agreement" if it shall fail to perform
any of its respective obligations under this Agreement and, barring an Unavoidable Delay, after
written notice from the other Party of such failure to perform, does not commence performance
within thirty (30) days after such notice and diligently prosecute the same to completion. Each of
CHO1/ 12460955.7 12
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the Parties shall have all remedies available at law or in equity to enforce this Agreement or
recover damages in case of a breach of this Agreement beyond any applicable cure periods.
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9.4 Amendment. This Agreement, and any exhibits attached hereto, may be amended
only by: (i) the agreement of all of the Parties evidenced by a written amendment, with the
adoption of an ordinance or resolution of the City approving the written amendment; (ii) as
provided by law; or (iii) by the execution of the written amendment by the Parties or their
successors in interest.
! 9.5 Conflict with Prior Aereements. In the event that there is a conflict between this
Agreement and the Entitlement Documents, the Entitlement Documents shall control.
9.6 Severabilitv. If any provisions, covenants, agreements or portions of this
Agreement, or its application to any person, entity or property, is held invalid, such invalidity
shall not affect the application or validity of any other provisions, covenants, agreements or
portions of this Agreement and, to that end, all provisions, covenants, agreements or portions of
this Agreement are declared to be severable.
9.7 Illinois Law. This Agreement shall be construed in accordance with the laws of
the State of Illinois.
9.8 Notice Any notice to be given or served hereunder or under any document or
instrument executed pursuant hereto shall be in writing and shall be: (i) delivered personally,
with a receipt requested therefor; or (ii) sent by facsimile; or (iii) sent by a recognized overnight
courier service; or (iv) delivered by United States registered or certified mail, return receipt
requested, postage prepaid. All notices shall be addressed to the Parties at their respective
addresses set forth below, and the same shall be effective: (a) upon receipt or refusal if delivered
personally or by facsimile; (b) one (1) business day after depositing with such an overnight
courier service; or (c) two (2) business days after deposit in the mails, if mailed. A Party may
change its address for receipt of notices by service of a notice of such change in accordance
herewith.
If to the City: United City of Yorkville
800 Game Farm Road
Yorkville, Illinois 60560
Attention: Mayor
Fax: (630) 553 -7570
With a Copy to: United City of Yorkville
800 Game Farm Road
Yorkville, Illinois 60560
Attention: -John Wyeth, Esq.
Fax: (630) 553 -5764
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If to Developer: Pulte Home Corporation
2250 Point Boulevard
Elgin, Illinois 60123
Attention: Matthew Cudney
Fax: (847) 783 -0875
With a Copy to: Gardner Carton & Douglas LLP
191 North Wacker Drive, Suite 3700
Chicago, Illinois 60606
Attention: Charles L. Byrum
Fax: (312) 569 -3222
9.9 Countemarts. This Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same agreement.
9.10 Consent or Annroval. Except as otherwise provided in this Agreement, whenever
consent or approval of a Party is required, such consent or approval shall not be unreasonably
withheld.
9.11 Assignment. At its sole cost and expense, the Developer may collaterally assign
its interest in the payments to be received hereunder to a third -party lender who is advancing
funds for the payment of the costs of the Public Improvements. The Developer shall notify the
City of its intent to collaterally assign its interest in the payment received and said assignment is
subject to the reasonable approval of the City. No assignment shall result in any increased costs
to the City, unless the City is reimbursed for such increased costs.
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9.12 Effective Date. This Agreement shall become effective upon the date first above
written by each of the parties.
CITY:
UNITED CITY OF YORKVILLE, an Illinois
municipal corporation
By:
Its:
DEVELOPER:
PULTE HOME CORPORATION
By:
Its:
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EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1:
THAT PART OF THE WEST HALF OF SECTION 22, TOWNSHIP 37 NORTH, RANGE
7, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT AN EXISTING IRON PIPE STAKE SAID TO BE OVER THE
ORIGINAL LOCATION OF A STONE IN THE CENTER LINE OF THE BRISTOL AND
OSWEGO ROAD, PREVIOUSLY DESCRIBED AS BEING 23.05 CHAINS WEST AND
NORTH 35 DEGREES 30 MINUTES WEST 11.02 CHAINS FROM THE SOUTHEAST
CORNER OF SAID SECTION 22; THENCE NORTH 34 DEGREES 59 MINUTES 00
SECONDS WEST, ALONG A LINE FORMING AN ANGLE OF 93 DEGREES 23 MINUTES 07
SECONDS WITH THE CENTERLINE OF U.S. ROUTE 34, MEASURED FROM
NORTHEAST TO NORTHWEST, 2,054.60 FEET FOR POINT OF BEGINNING;
THENCE SOUTH 52 DEGREES 08 MINUTES 00 SECONDS WEST, 825.40 FEET;
THENCE NORTH 38 DEGREES 06 MINUTES 00 SECONDS WEST, 1,803.88 FEET
TO THE CENTER LINE OF KENNEDY ROAD; THENCE NORTHEASTERLY ALONG
SAID CENTER LINE, 1,581.49 FEET TO A POINT WHICH IS 350.0 FEET
SOUTHWESTERLY OF, AS MEASURED ALONG SAID CENTER LINE, THE MOST
EASTERLY CORNER OF BRISTOL LAKE SUBDMSION; THENCE SOUTH 38
DEGREES 15 MINUTES 40 SECONDS EAST, 1,639.93 FEET TO A LINE DRAWN
NORTH 52 DEGREES 45 MINUTES 17 SECONDS EAST FROM THE POINT OF
BEGINNING; THENCE SOUTH 52 DEGREES 45 MINUTES 17 SECONDS WEST,
750.69 FEET TO THE POINT OF BEGINNING, IN BRISTOL TOWNSHIP, KENDALL
COUNTY, ILLINOIS.
PARCEL 2:
THAT PART OF THE SOUTH HALF OF SECTION 15 AND THAT PART OF THE
NORTH HALF OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF THE
THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE
SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION, AS PER THE PLAT
THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT BOOK 10 AT
PAGE 58 ON MAY 10, 1962; THENCE NORTHWESTERLY ALONG THE
NORTHEASTERLY LINE OF SAID SUBDIVISION 1988.0 FEET TO THE
NORTHEASTERLY CORNER OF SAID SUBDIVISION; THENCE NORTHWESTERLY
ALONG A LINE MAKING AN ANGLE OF 180 DEGREES 13 MINUTES 25 SECONDS
MEASURED COUNTER- CLOCKWISE FROM THE LAST DESCRIBED COURSE, A
DISTANCE OF 895.02 FEET TO AN EXISTING IRON PIPE STAKE; THENCE
EASTERLY ALONG AN OLD FENCE LINE FORMING AN INTERIOR ANGLE OF 58
DEGREES 15 MINUTES 28 SECONDS WITH THE LAST DESCRIBED COURSE, A
DISTANCE OF 1298.88 FEET ( 19.68 CHAINS) TO AN IRON PIPE STAKE HEREWITH
PLACED; THENCE SOUTHEASTERLY ALONG AN OLD ESTABLISHED LINE OF
OCCUPATION FORMING AN INTERIOR ANGLE OF 124 DEGREES 23 MINUTES 38
SECONDS WITH THE LAST DESCRIBED COURSE A DISTANCE OF 2185.47 FEET
TO AN EXISTING IRON PIPE STAKE ON THE CENTER LINE OF KENNEDY ROAD
WHICH IS 1213.59 FEET NORTHEASTERLY FROM THE POINT OF BEGINNING, AS
MEASURED ALONG SAID CENTER LINE; THENCE SOUTHWESTERLY ALONG
SAID CENTER LINE 1213.59 FEET TO THE POINT OF BEGINNING, IN THE
TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS.
PARCEL 3:
THAT PART OF THE NORTH HALF OF SECTION 22, TOWNSHIP 37 NORTH, RANGE
7, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:
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BEGINNING AT THE SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION
AS PER THE PLAT THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT
BOOK 10 AT PAGE 58 ON MAY 10, 1962; THENCE NORTHEASTERLY ALONG THE
CENTER LINE OF KENNEDY ROAD, WHICH MAKES AN ANGLE OF 88 DEGREES 58
MINUTES 47 SECONDS WITH THE NORTHEASTERLY LINE OF SAID SUBDIVISION,
MEASURED CLOCKWISE THEREFROM, A DISTANCE OF 1213.59 FEET; THENCE
SOUTHERLY ALONG AN OLD EXISTING LINE OF OCCUPATION FORMING AN
INTERIOR ANGLE OF 94 DEGREES 54 MINUTES 43 SECONDS WITH THE LAST
DESCRIBED COURSE, A DISTANCE OF 1228.39 FEET; THENCE
SOUTHWESTERLY PARALLEL WITH THE AFORESAID CENTER LINE OF KENNEDY
ROAD, 1348.57; THENCE NORTHWESTERLY ALONG A LINE FORMING AN
INTERIOR ANGLE OF 88 DEGREES 37 MINUTES 37 SECONDS WITH THE LAST
DESCRIBED COURSE A DISTANCE OF 1224.23 FEET TO A POINT ON THE
SOUTHEASTERLY LINE OF SAID BRISTOL LAKE SUBDIVISION WHICH IS 0.46
FEET SOUTHWESTERLY FROM THE POINT OF BEGINNING; THENCE
NORTHEASTERLY ALONG SAID SOUTHEASTERLY LINE 0.46 FEET TO THE POINT
OF BEGINNING, IN THE TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS
(EXCEPTING THEREFROM THAT LAND CONVEYED TO KENNETH D. DOTY, JR., IN
DEED RECORDED AS DOCUMENT NUMBER R85 -5973, DESCRIBED AS FOLLOWS:
THAT PART OF THE NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 37
NORTH, RANGE 7, EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS
FOLLOWS: BEGINNING AT THE SOUTHEASTERLY CORNER OF BRISTOL LAKE
SUBDIVISION; THENCE NORTHEASTERLY ALONG THE CENTER LINE OF
KENNEDY ROAD, 299.54 FEET; THENCE SOUTHEASTERLY AT RIGHT ANGLES TO
THE LAST DESCRIBED COURSE, 287.11 FEET; THENCE SOUTHWESTERLY, AT
RIGHT ANGLES TO THE LAST DESCRIBED COURSE, 306.88 FEET TO THE
EASTERLY LINE OF A TRACT OF LAND CONVEYED TO HERBERT L. RUCKS BY A
WARRANTY DEED RECORDED AUGUST 1, 1966 IN BOOK 149 ON PAGE 303;
THENCE NORTHWESTERLY ALONG SAID EASTERLY LINE TO A POINT ON SAID
CENTER LINE WHICH IS 0.46 FEET SOUTHWESTERLY OF THE POINT OF
BEGINNING; THENCE NORTHEASTERLY ALONG SAID CENTER LINE, 0.46 FEET
TO THE POINT OF BEGINNING, IN BRISTOL TOWNSHIP, KENDALL COUNTY,
ILLINOIS).
PARCEL 4:
THAT PART OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF THE
THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE
SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION AS PER THE PLAT
THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT BOOK 10 AT -
PAGE 58 ON MAY 10, 1962; THENCE NORTHEASTERLY ALONG THE CENTER LINE
OF KENNEDY ROAD WHICH MAKES AN ANGLE OF 88 DEGREES 58 MINUTES 47
SECONDS WITH THE NORTHEASTERLY LINE OF SAID SUBDIVISION, MEASURED
CLOCKWISE THEREFROM, A DISTANCE OF 1213.59 FEET; THENCE SOUTHERLY
ALONG AN OLD EXISTING LINE OF OCCUPATION FORMING AN INTERIOR ANGLE
OF 94 DEGREES 54 MINUTES 43 SECONDS WITH THE LAST DESCRIBED
COURSE, A DISTANCE OF 1228.39 FEET; THENCE SOUTHWESTERLY PARALLEL
WITH THE AFORESAID CENTER LINE OF KENNEDY ROAD, 1364.57 FEET FOR
THE POINT OF BEGINNING; THENCE NORTHEASTERLY ALONG THE LAST
DESCRIBED COURSE 1348.57 FEET TO THE PENULTIMATE DESCRIBED POINT;
THENCE SOUTHEASTERLY ALONG A LINE FORMING AN INTERIOR ANGLE OF 94
DEGREES 54 MINUTES 43 SECONDS WITH THE LAST DESCRIBED COURSE, A
DISTANCE OF 1402.38 FEET; THENCE SOUTHWESTERLY ALONG ALINE
FORMING AN INTERIOR ANGLE OF 84 DEGREES 52 MINUTES 28 SECONDS WITH
THE LAST DESCRIBED COURSE (BEING A LINE DRAWN PARALLEL WITH THE
CENTER LINE OF U.S. HIGHWAY ROUTE 34) A DISTANCE OF 2301.24 FEET;
THENCE NORTHWESTERLY ALONG A LINE DRAWN NORTH 35 DEGREES 30
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MINUTES WEST FROM A POINT ON THE SOUTHERLY LINE OF SAID SECTION 22
WHICH IS 23.03 CHAINS WEST OF THE SOUTHEAST CORNER OF SAID SECTION
22 (SAID LIN E FORMING AN INTERIOR ANGLE OF 93 DEGREES 23 MINUTES 07
j SECONDS WITH THE LAST DESCRIBED COURSE) A DISTANCE OF 914.67 FEET;
THENCE NORTHEASTERLY ALONG A LINE FORMING AN INTERIOR ANGLE OF 92
DEGREES 15 MINUTES 44 SECONDS WITH THE LAST DESCRIBED COURSE
877.73 FEET; THENCE NORTHWESTERLY ALONG A LINE FORMING AN INTERIOR
ANGLE OF 263 DEGREES 11 MINUTES 34 SECONDS WITH THE LAST DESCRIBED
COURSE, A DISTANCE OF 392.38 TO THE POINT OF BEGINNING, IN THE
TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS.
PARCELS:
THAT PART OF SECTION 22, TOWNSHIP 37 NORTH, RANGE 7, EAST OF THE
THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE
SOUTHEASTERLY CORNER OF BRISTOL LAKE SUBDIVISION AS PER THE PLAT
THEREOF FILED FOR RECORD AS DOCUMENT 137733 IN PLAT BOOK 10, PAGE
58 ON MAY 10, 1962; THENCE NORTHEASTERLY ALONG THE CENTER LINE OF
KENNEDY ROAD FORMING AN ANGLE OF 88 DEGREES 58 MINUTES 47
SECONDS WITH THE NORTHEASTERLY LINE OF SAID SUBDIVISION, MEASURED
CLOCKWISE THEREFROM, A DISTANCE OF 1213.59 FEET; THENCE SOUTHERLY
ALONG AN OLD EXISTING LINE OF OCCUPATION FORMING AN INTERIOR ANGLE
OF 94 DEGREES 54 MINUTES 43 SECONDS WITH THE LAST DESCRIBED
COURSE, 2630.77 FEET FOR THE POINT OF BEGINNING; THENCE
SOUTHEASTERLY ALONG THE PROLONGATION OF THE LAST DESCRIBED
COURSE 1142.51 FEET TO THE CENTER LINE OF U.S. HIGHWAY ROUTE 34;
THENCE SOUTHWESTERLY ALONG SAID CENTER LINE FORMING AN INTERIOR
ANGLE WITH THE LAST DESCRIBED COURSE OF 84 DEGREES 52 MINUTES 28
SECONDS, 2336.0 FEET TO AN EXISTING IRON PIPE STAKE SAID TO BE OVER
THE ORIGINAL LOCATION OF A STONE IN THE CENTER LINE OF THE ORIGINAL
BRISTOL AND OSWEGO ROAD PREVIOUSLY DESCRIBED AS BEING 23.05
CHAINS WEST AND THENCE NORTH 35 DEGREES 30 MINUTES WEST 11.02
CHAINS FROM THE SOUTHEAST CORNER OF SAID SECTION 22; THENCE NORTH
35 DEGREES 30 MINUTES WEST ALONG A LINE FORMING AN INTERIOR ANGLE
OF 93 DEGREES 23 MINUTES 07 SECONDS WITH THE LAST DESCRIBED
COURSE 1139.93 FEET TO A LINE DRAWN SOUTHWESTERLY PARALLEL WITH
SAID CENTER LINE OF SAID ROUTE NO. 34 FROM THE POINT OF BEGINNING;
THENCE NORTHEASTERLY ALONG SAID PARALLEL LINE FORMING AN INTERIOR
ANGLE OF 86 DEGREES 36 MINUTES 53 SECONDS WITH THE LAST DESCRIBED
COURSE 2301.24 FEET TO THE POINT OF BEGINNING, IN THE TOWNSHIP OF
BRISTOL, KENDALL COUNTY, ILLINOIS.
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL:
THAT PART OF THE SOUTH HALF OF SECTION 22, TOWNSHIP 37 NORTH, RANGE
7, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING
AT THE SOUTHEAST CORNER OF LOT 27, IN BRISTOL LAKE SUBDIVISION, ACCORDING
TO THE PLAT THEREOF RECORDED AS DOCUMENT 137733 IN PLAT BOOK 10, AT
PAGE 58, ON MAY 10, 1962; THENCE SOUTH 33 DEGREES 58 MINUTES 14 SECONDS
EAST 33.00 FEET TO THE CENTERLINE OF KENNEDY ROAD; THENCE NORTH 55
DEGREES 00 MINUTES 21 SECONDS EAST 299.54 FEET AS MEASURED ALONG SAID
CENTERLINE; THENCE SOUTH 34 DEGREES 59 MINUTES 39 SECONDS EAST 287.11
FEET; THENCE SOUTH 55 DEGREES 00 MINUTES 21 SECONDS WEST 306.92 FEET;
THENCE SOUTH 33 DEGREES 37 MINUTES 35 SECONDS EAST 1,329.42 FEET; THENCE
SOUTH 47 DEGREES 27 MINUTES 46 SECONDS EAST 1,247.97 FEET TO THE POINT
OF BEGINNING; THENCE SOUTH 34 DEGREES 46 MINUTES 42 SECONDS EAST 65.00
FEET; THENCE SOUTH 27 DEGREES 32 MINUTES 48 SECONDS EAST 238.32 FEET;
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THENCE SOUTH 34 DEGREES 46 MINUTES 42 SECONDS EAST 588.35 FEET TO
THE NORTHERLY RIGHT OF WAY LINE OF U.S. ROUTE 34 PER GRANT DATED APRIL
13, 1923 AND RECORDED APRIL 18, 1923 IN BOOK 76, PAGE 82, AND BY GRANT
DATED APRIL 7, 1923 AND RECORDED APRIL 18, 1923 IN DEED RECORDED IN BOOK
76, PAGE 30; THENCE SOUTH 55 DEGREES 12 MINUTES 58 SECONDS WEST 997.93
FEET AS MEASURED ALONG SAID RIGHT OF WAY LINE; THENCE NORTH 38 DEGREES
09 MINUTES 48 SECONDS WEST 891.55 FEET; THENCE NORTH 55 DEGREES 13 MIN-
UTES 34 SECONDS EAST 1,080.56 FEET TO THE POINT OF BEGINNING, ALL IN
KENDALL COUNTY, ILLINOIS.
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EXHIBIT B
Special Services
Land Acquisition -
Clearing and Brushing -
Demolition -
Earth Balancing 561,334
Erosion Control 176,485
Sanitary Sewer 1,475,675
Storm Sewer 2,732,580
Water Mains 1,473,660
Asphalt Binder 1,011,113
Surface 197,918
Road Undercuts /Lime Stabilization 199,636
Curb & Gutter 323,334
Common Sidewalk 68,896
Public Utilities 131,207
Street Lighting 133,982
Street Signs 1,996
Offsite Sanitary 430,335
Offsite Paving -
Wetland Mitigation and Monitoring 3,742
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Irrigation 9,354
Landscaping -
Amenities -
Perimeter Fending -
Soft Costs 2,444,753
Contingency -
Sub -Total 11,376,000
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EXHIBIT C
REQUEST FOR PAYMENT
TO: United City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
Re: $
United City of Yorkville
Kendall County, Illinois
Special Service Area Number 2005 -108
Special Tax Bonds, Series 2006
Amount Requested:
Total Disbursements to Date:
1. Each obligation for which a disbursement is hereby requested is described in reasonable
detail in Schedule I hereto together with the name and address of the person, firm, or
corporation to whom payment is due, which may include Developer for reimbursement of
amounts expended, and any other payment instructions.
2. The bill, invoices, or statements of account for each obligation referenced in Schedule I
are attached hereto as Schedule II.
3. Developer hereby certifies that:
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a. This written requisition is for payment of costs in connection with the issuance of
the above - referenced Series 2006 Bonds and the specific purpose for which this
request is made is described in Schedule I.
b. The disbursement is for payment of a Special Service.
C. Such Special Service has been completed in accordance with the terms of the
Public Infrastructure Agreement.
d. Payment instructions sufficient to make the requested payment are set forth in
Schedule I.
e. No portion of the amount being requested to be disbursed was set forth in any
previous request for disbursement.
f. Developer is not in default under the Public Infrastructure Agreement.
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4. All capitalized terms herein shall have the meanings assigned to them in the Trust
Indenture for the above - referenced Series 2006 Special Tax Bonds dated as of March 1,
2006 by and between the United City of Yorkville, Kendall County, Illinois and the Bank
of New York Trust Company, N.A., as Trustee.
DEVELOPER:
Pulte Home Corporation
By:
Its:
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cc: David Taussig & Associates
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Date Request for Payment received:
,200
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Inspected and approved for payment
By:
Name:
Title: City Engineer
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EXHIBIT D
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DISBURSEMENT REQUEST
TO: The Bank of New York Trust Company, N.A.
Two North LaSalle Street, Suite 1020
Chicago, Illinois 60602
Attention:
RE: $15,000,000.00
United City of Yorkville
Kendall County, Illinois
Special Service Area Number 2005 -108
Special Tax Bonds, Series 2006
Amount Requested:
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Total Disbursements to Date:
1. Each obligation for which a disbursement is hereby requested is described in
reasonable detail in Schedule I hereto together with the name and address of the person, firm, or
corporation to whom payment is due, which may include the Developer for reimbursement of
amounts expended, and any other payment instructions.
2. The bills, invoices, or statements of account for each obligation referenced in
Schedule I are attached hereto as Schedule II.
3. Pursuant to a Commitment dated .200 from ,
an endorsement to the Title Policy in the amount requested shall be delivered within days.
4. The Issuer hereby certifies that:
(a) This written requisition is for payment of costs in connection with the
issuance of the above - referenced Series 2006 Bonds and the specific purpose for which this
request is made is described in Schedule I.
(b) The disbursement is for payment of a Special Service.
(c) Such Special Service has been completed in accordance with the terns of
the Public Infrastructure Agreement for Special Service Area Number 2005 -108.
(d) Payment instructions sufficient to make the requested payment are set
forth in Schedule I.
(e) No portion of the amount being requested to be disbursed was set forth in
any previous request for disbursement.
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5. All capitalized terms herein shall have the meanings assigned to them in the Trust
Indenture for the above - referenced Series 2006 Special Tax Bonds dated as of ,
2006 by and between the United City of Yorkville, Kendall County, Illinois and The Bank of
New York Trust Company, N.A., as Trustee.
By:
Authorized Officer
cc: Consultant
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EXHIBIT E -1
SPECIAL SERVICE AREA FINANCING RIDER TO
AGREEMENT OF PURCHASE AND SALE
AUTUMN CREEK — SINGLE FAMILY HOMES
This Rider is attached to and made a part of the Agreement of Purchase and Sale
between Pulte Home Corporation ( "Seller ") and and
( "Purchaser" or "You') for a residence on Single Family Lot No.
in the Autumn Creek Subdivision located in Yorkville, Illinois (the "Lot "). Seller and
Purchaser hereby acknowledge and agree as follows:
The United City of Yorkville, Illinois (the "City") intends to create the Yorkville Special
Service Area No. 2005 -108 ( "SSA No. 2005 - 108 ") by adopting the "Establishing Ordinance."
The City will create SSA No. 2005 -108 to finance the design, acquisition, construction and
installation of certain "Public Improvements" that will specially benefit property within SSA
No. 2005 -108 which include, among other things, engineering, soil testing and appurtenant work,
mass grading and demolition, storm water management facilities, storm drainage systems and
storm sewers, site clearing and tree removal, public water facilities, including water wells and
water treatment facilities, sanitary sewer facilities, erosion control measures, roads, streets,
curbs, gutters, street lighting, traffic controls, sidewalks, bicycle paths and related street
improvements, and equipment and materials necessary for the maintenance thereof, park, park
improvements, landscaping, wetland mitigation and tree installation, and any other eligible
public improvements, costs for land and easement acquisitions relating to any of the foregoing
improvements, required tap -on and related fees for water or sanitary sewer services and other
eligible costs. The City will then issue municipal bonds to finance the SSA No. 2005 -108 Public
Improvements pursuant to a "Bond Ordinance."
To repay the bonds, the Establishing Ordinance will authorize the levy, extension and
collection of a special service area tax upon the Lot (the "Special Tax "). The Special Tax will
be levied on the Lot for each calendar year from 2007 to 2034 and collected each calendar year
no earlier than from 2008 to 2035, unless prepaid as discussed below. However, some interest
on the bonds will be capitalized as part of the bond issue and so it is anticipated that homeowners
in the subdivision will not be required to make any payments of the Special Tax until the year
2008. The Maximum Annual Special Tax on the Lot first payable in calendar year 2008 will be
$2,000 and may increase by no more than one and one -half percent (1.5 %) each year thereafter,
up to a maximum Special Tax on the Lot of $2,988 payable in calendar year 2035.
The Special Tax will be a lien on the Lot, and will accrue on a yearly basis on the Lot. If
the Special Tax is not paid on time, foreclosure of that lien can result (just like becoming
delinquent on mortgage payments or general real estate taxes). The Special Tax will likely be
included on the regular real estate tax bills for the Lot by the County, and payable in two equal
installments due at the same time as the regular real estate tax bills.
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By signing this Rider, You expressly acknowledge the establishment of SSA
No. 2005 -108 and the imposition of the Special Tax and agree not to object to them. You also
agree to accept title at closing subject to the Special Tax for Your Lot and that the Deed that You
receive at closing shall recite the Special Tax and the documents creating it as a permitted
exception to title.
You will be responsible for the Special Tax on Your Lot from and after the Closing Date.
Since the Special Tax for the year prior to the year in which the Closing Date occurs will be
levied to cover this obligation, at closing You will be required to pay to Seller Your prorata
portion of the Special Tax on the Lot for the year prior to the year in which the closing occurs,
prorated from the Closing Date to the end of February of the next calendar year. Also, because
all of the Special Tax levied against the Lot in the year of closing is attributable to the year of
closing, but will become payable after the year of closing, You will be required to pay, as bills
are issued in the future, all of the Special Tax levied on the Lot for the year of closing and all
subsequent years, and Seller will give no proration credit to Purchaser for the Special Tax for the
year of closing.
Provided that there are no delinquent Special Taxes related to the Lot, You or any
subsequent Lot Owner will be able to prepay the Special Tax at any time, and doing so would
permanently satisfy the obligation to pay the Special Tax. The Special Tax Roll will describe the
manner that the amount required to prepay the Special Tax is calculated.
This Rider shall be incorporated into and be deemed an integral part of the Purchase
Agreement. In the event of any conflict between this Rider and the Purchase Agreement, the
terms of this Rider shall control.
SELLER: PURCHASER:
Pulte Home Corporation
By:
Authorized Agent
{
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EXHIBIT E -2
SPECIAL SERVICE AREA FINANCING RIDER TO
AGREEMENT OF PURCHASE AND SALE
AUTUMN CREEK — TOWNHOMES
This Rider is attached to and made a part of the Agreement of Purchase and Sale
between Pulte Home Corporation ( "Seller ") and and
("Purchaser" or "You') for a residence on Townhome Lot No.
in the Autumn Creek Subdivision located in Yorkville, Illinois (the "Lot "). Seller and
Purchaser hereby acknowledge and agree as follows:
The United City of Yorkville, Illinois (the "City") intends to create the Yorkville Special
Service Area No. 2005 -108 ( "SSA No. 2005 - 108 ") by adopting the "Establishing Ordinance."
The City will create SSA No. 2005 -100 to finance the design, acquisition, construction and
installation of certain "Public Improvements" that will specially benefit property within SSA
No. 2005 -108 which include, among other things, engineering, soil testing and appurtenant work,
mass grading and demolition, storm water management facilities, storm drainage systems and
storm sewers, site clearing and tree removal, public water facilities, including water wells and
water treatment facilities, sanitary sewer facilities, erosion control measures, roads, streets,
curbs, gutters, street lighting, traffic controls, sidewalks, bicycle paths and related street
improvements, and equipment and materials necessary for the maintenance thereof, park, park
improvements, landscaping, wetland mitigation and tree installation, and any other eligible
public improvements, costs for land and easement acquisitions relating to any of the foregoing
improvements, required tap -on and related fees for water or sanitary sewer services and other
eligible costs. The City will then issue municipal bonds to finance the SSA No. 2005 -108 Public
Improvements pursuant to a "Bond Ordinance."
To repay the bonds, the Establishing Ordinance will authorize the levy, extension and
collection of a special service area tax upon the Lot (the "Special Tag "). The Special Tax will
be levied on the Lot for each calendar year from 2007 to 2034 and collected each calendar year
no earlier than from 2008 to 2035, unless prepaid as discussed below. However, some interest
on the bonds will be capitalized as part of the bond issue and so it is anticipated that homeowners
in the subdivision will not be required to make any payments of the Special Tax until the year
2008. The Maximum Annual Special Tax on the Lot first payable in calendar year 2008 will be
$1,800 and may increase by no more than one and one -half percent (1.5 %) each year thereafter,
up to a maximum Special Tax on the Lot of $2,690 payable in calendar year 2035.
The Special Tax will be a lien on the Lot, and will accrue on a yearly basis on the Lot. If
the Special Tax is not paid on time, foreclosure of that lien can result (just like becoming
delinquent on mortgage payments or general real estate taxes). The Special Tax will likely be
included on the regular real estate tax bills for the Lot by the County, and payable in two equal
installments due at the same time as the regular real estate tax bills.
CHOI/ 12460955.7 27
By signing this Rider, You expressly acknowledge the establishment of SSA No.
2005 -108 and the imposition of the Special Tax and agree not to object to them. You also agree
to accept title at closing subject to the Special Tax for Your Lot and that the Deed that You
receive at closing shall recite the Special Tax and the documents creating it as a permitted
exception to title.
You will be responsible for the Special Tax on Your Lot from and after the Closing Date.
Since the Special Tax for the year prior to the year in which the Closing Date occurs will be
levied to cover this obligation, at closing You will be required to pay to Seller Your prorata
portion of the Special Tax on the Lot for the year prior to the year in which the closing occurs,
prorated from the Closing Date to the end of February of the next calendar year. Also, because
all of the Special Tax levied against the Lot in the year of closing is attributable to the year of
closing, but will become payable after the year of closing, You will be required to pay, as bills
are issued in the future, all of the Special Tax levied on the Lot for the year of closing and all
subsequent years, and Seller will give no proration credit to Purchaser for, the Special Tax for the
year of closing.
Provided that there are no delinquent Special Taxes related to the Lot, You or any
subsequent Lot Owner will be able to prepay the Special Tax at any time, and doing so would
permanently satisfy the obligation to pay the Special Tax. The Special Tax Roll will describe the
manner that the amount required to prepay the Special Tax is calculated.
This Rider shall be incorporated into and be deemed an integral part of the Purchase
Agreement. In the event of any conflict between this Rider and the Purchase Agreement, the
terms of this Rider shall control
SELLER: PURCHASER:
Pulte Home Corporation
By:
Authorized Agent
CHOI/ 12460955.7 28
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Exhibit E
Preliminary Limited Offering Memorandum
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CHI2 603858.3
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i
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PRELIMINARY LIMITED OFFERING MEMORANDUM DATED 2006
NEW ISSUE —BOOK ENTRY ONLY NOT RATED
In the opinion of Foley & Lardner LLP, Bond Counsel, based upon an analysis of existing laws, regulations, rulings and court
decisions and, assuming among other matters, compliance with certain covenants, interest on the Bonds is excluded from gross income
for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986, as amended In the opinion of Bond Counsel,
interest on the Bonds is not a specific preference item for purposes of the federal individual or corporate alternative minimum taxes,
although such interest is included in adjusted current earnings when calculating corporate alternative minimum taxable income. Interest
on the Bonds is not exempt from present State of Illinois income taxes. Bond Counsel expresses no opinion regarding any other tax
consequences related to the ownership or disposition of or the accrual or receipt of interest on, the Bonds. See the heading "79X
MATTERS. '
$15,000,000*
UNITED CITY OF YORKVILLE
KENDALL COUNTY, ILLINOIS
SPECIAL SERVICE AREA NUMBER 2005 -108
M SPECIAL TAX BONDS, SERIES 2006
(AUTUMN CREEK PROJECT)
Dated: Date of Delivery % Due: March 1, 2036
This Limited Offering Memorandum is being furnished solely for consideration by prospective sophisticated purchasers of the
United City of Yorkville, Kendall County, Illinois Special Service Area Number 2005 -108 Special Tax Bonds, Series 2006 (Autumn
Creek Project) (the "Bonds ") with substantial financial resources and the experience and financial expertise to understand and evaluate
the high degree of risk inherent in this investment. Purchase of the Bonds will constitute an investment secured solely by a pledge of
Special Tax (as defined herein) and certain other amounts held in funds established pursuant to the Trust Indenture between United City
of Yorkville, Illinois and The Bank of New York Trust Company, N.A., as Trustee, dated as of March 1, 2006 (the "Indenture"). The
purchase of the Bonds is an investment subject to a high degree of risk, including the risk of non - payment of principal and interest. See
"RISK FACTORS" herein.
The Bonds are issuable only as fully registered bonds without coupons and, when issued, will be registered in the name of
Cede & Co., as nominee of The Depository Trust Company, New York, New York ( "DTC "). Individual purchases will be made in book -
entry form only, in principal amounts of $100,000 or integral multiples of $1,000 in excess thereof-, provided, however, that from and
after the sale of 90% of all of the single family homes and townhomes associated with the project funded and paid in part with proceeds
of the Bonds and satisfaction of certain requirements set forth in the Indenture, the Bonds may be exchanged for Bonds of the same
aggregate principal amount and maturity in denominations of $5,000 or integral multiples of $1,000 in excess thereof as further
described herein. Beneficial Owners of the Bonds will not receive physical certificates representing their interest in the Bonds purchased
Principal of, premium, if any, and interest (payable on March I and September 1 of each year, commencing September 1, 2006) on the
Bonds are payable by The Bank of New York Trust Company, N.A. as Trustee, to DTC, which will remit such principal, premium, if
any, and interest to DTC's Participants, who in turn will be responsible for remitting such payments to the Beneficial Owners of the
Bonds, as described herein.
The Bonds are subject to optional, mandatory and special mandatory redemption prior to maturity as set forth herein.
THE BONDS ARE BEING ISSUED PURSUANT TO THE SPECIAL SERVICE AREA TAX LAW OF THE STATE OF
ILLINOIS, AS AMENDED, AND, IN THE OPINION OF FOLEY & LARDNER LLP, CHICAGO, ILLINOIS, BOND COUNSEL,
WILL CONSTITUTE VALID AND LEGALLY BINDING LIMITED OBLIGATIONS OF THE UNITED CITY OF YORKVILLE,
ILLINOIS (THE "CITY") PAYABLE SOLELY AND ONLY FROM THE SPECIAL TAX AND AMOUNTS ON DEPOSIT IN
CERTAIN OF THE FUNDS ESTABLISHED AND MAINTAINED PURSUANT TO THE INDENTURE, AS SET FORTH HEREIN.
THE BONDS ARE NOT GENERAL OBLIGATIONS OF THE CITY AND NEITHER THE FULL FAITH AND CREDIT NOR THE
GENERAL TAXING POWER OF THE CITY, THE COUNTY OF KENDALL, THE STATE OF ILLINOIS, OR ANY POLITICAL
SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE BONDS. NO HOLDER OF ANY BOND SHALL HAVE
THE RIGHT TO COMPEL THE EXERCISE OF ANY TAXING POWER OF THE CITY (OTHER THAN THE LEVY OF THE
SPECIAL TAX AS DESCRIBED HEREIN) FOR PAYMENT OF THE PRINCIPAL AMOUNT OF, PREMIUM, IF ANY, OR
INTEREST ON THE BONDS.
Price — 100%
The Bonds are offered when, as and if issued subject to prior sale, withdrawal or modification of the offer without notice, the
approving legal opinion of Foley & Lardner LLP, Chicago, Illinois, Bond Counsel, and certain other conditions. See "TAX MA TTERS"
herein and Appendix F hereto. Certain legal matters will be passed upon for the Underwriter by Schain, Burney, Ross & Citron, Lid.,
Chicago, Illinois, for the Developer by Gardner, Carton, Carton & Douglas,Chicago, Illinois, and for the City by John Wyeth, Esq.,
Yorkville, Illinois. It is expected that the Bonds will be available for delivery to DTC in New York; New York on or about
, 2006.
Dated: .2006.
* Preliminary and subject to change.
LIMITED OFFERING MEMORANDUM
This Limited Offering Memorandum is being furnished by the United City of Yorkville, Kendall
County, Illinois (the "City") to a limited number (35 or less) of sophisticated investors or registered
investment companies under the Investment Company Act of 1940 solely for the purpose of each
investor's consideration of the purchase of the Bonds described herein, and is not to be used for any other
purpose or made available to anyone not directly concerned with the decision regarding such purchase.
This Limited Offering Memorandum does not constitute an offer to sell or the solicitation of an offer to
buy, nor shall there be any sale of the Bonds by any person, in any jurisdiction in which it is unlawful for
such person to make such an offer, solicitation or sale. Interested investors are being provided the
opportunity to ask such questions and examine such documents and records as they may desire, and are
advised to contact the Underwriter to secure further information concerning the Bonds.
No dealer, broker, salesman or other person has been authorized to give any information or to
make any representation other than as contained in this Limited Offering Memorandum in connection
with the placement described herein, and, if given or made, such information or representation must not
be relied upon as having been authorized. Certain information contained herein has been obtained from
the City, the Developer and other sources which are believed by the Underwriter to be reliable. In
accordance with, and as part of, its responsibilities to investors under the federal securities laws, as
applied to the facts and circumstances of this transaction, the Underwriter has reviewed the information in
this Limited Offering_ Memorandum, but does not guarantee the accuracy or completeness of such
information. Neither the delivery of this Limited Offering Memorandum nor the sale of any of the Bonds
shall imply that the information herein is correct as of any time subsequent to the date hereof.
This Limited Offering Memorandum should be considered in its entirety and no one factor should
be considered more or less important than any other by reason of its position in this Limited Offering
Memorandum. Where statutes, reports, agreements or other documents are referred to herein, reference
should be made to such statutes, reports, agreements or other documents for more complete information
regarding the rights and obligations of parties thereto, facts and opinions contained therein and the subject
matter thereof.
The Bonds have not been registered under the Securities Act of 1933, as amended, in reliance
upon exemptions contained in such act. The registration or qualification of the Bonds in accordance with
the applicable provisions of securities laws of the states in which the Bonds have been registered or
qualified and the exemption from registration or qualification in other states cannot be regarded as a
recommendation thereof. Neither these states nor any of their agencies have passed upon the merits of the
Bonds or the accuracy or completeness of this Limited Offering Memorandum. Any representation to the
contrary may be a criminal offense.
THE BONDS HAVE RISK CHARACTERISTICS WHICH REQUIRE CAREFUL ANALYSIS
AND CONSIDERATION BEFORE A DECISION TO PURCHASE IS MADE. THE BONDS SHOULD
BE PURCHASED BY INVESTORS WHO HAVE ADEQUATE EXPERIENCE TO EVALUATE THE
MERITS AND RISKS OF THE BONDS. PROSPECTIVE INVESTORS ARE NOT TO CONSTRUE
THE CONTENTS OF THIS LIMITED OFFERING MEMORANDUM OR ANY PRIOR OR
SUBSEQUENT COMMUNICATION FROM THE UNDERWRITER, ITS AFFILIATES, OFFICERS
AND EMPLOYEES OR ANY PROFESSIONAL ASSOCIATED WITH THIS OFFERING AS
INVESTMENT OR LEGAL ADVICE. EACH PROSPECTIVE INVESTOR SHOULD CONSULT ITS
OWN COUNSEL, ACCOUNTANT AND OTHER ADVISORS AS TO FINANCIAL, LEGAL AND
RELATED MATTERS CONCERNING THE INVESTMENT DESCRIBED HEREIN.
There can be no guarantee that there will be a secondary market for the Bonds or, if a secondary
market exists, that it would continue to exist or that the Bonds could in any event be sold for any
particular price.
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UNITED CITY OF YORKVILLE, ILLINOIS
MAYOR
j Arthur F. Prochaska, Jr.
CITY ALDERMEN
Joseph Besco Marty Munns
Valerie Burd Wanda O'Hare
Paul James Rose Spears
Jason Leslie Dean Wolfer
TREASURER
William Powell
DIRECTOR OF PUBLIC WORKS
Eric Dhuse
FINANCE DIRECTOR
Traci Pleckham
CITY CLERK
Jacquelyn Milschewski
PROFESSIONAL SERVICES
BOND COUNSEL APPRAISER
Foley & Lardner LLP Frank J. Karth Associates
Chicago, Illinois
SPECIAL SERVICE AREA
ADMINISTRATOR AND
SPECIAL TAX CONSULTANT TRUSTEE
David Taussig & Associates, Inc. The Bank of New York Trust Company N.A.
Newport Beach, California Chicago, Illinois
CITY'S COUNSEL UNDERWRITER'S COUNSEL
John Justin Wyeth, Esq. Schain, Burney, Ross & Citron, Ltd.
Yorkville, Illinois Chicago, Illinois
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$15,000,000*
UNITED CITY OF YORKVILLE
KENDALL COUNTY, ILLINOIS
SPECIAL SERVICE AREA NUMBER 2005 -108
SPECIAL TAX BONDS, SERIES 2006 (AUTUMN CREEK PROJECT)
Page
INTRODUCTORYSTATEMENT .............................................................................. ............................... 1
THEBONDS ................................................................................................................ ............................... 2
General........................................................................................................... ............................... 2
Redemption..................................................................................................... ............................... 3
Optional Prepayment of Special Tax ............................................................... ............................... 6
Mandatory Prepayment of Special Tax ........................................................... ............................... 7
Book -Entry-Only System .............................................................................'... ............................... 7
PLANOF FINANCE ................................................................................................... ............................... 9
General............................................................................................................ ............................... 9
DevelopmentFinancing .................................................................................. ............................... 9
TheSpecial Services ..................................................................................... ............................... 10
ESTIMATED SOURCES AND USES OF FUNDS .................................................. ............................... 11
DEBT SERVICE REQUIREMENTS ........................................................................ ............................... 12
Expected Special Tax and Debt Service Coverage
SECURITY AND SOURCE OF PAYMENT FOR THE BONDS ............................ ............................... 14
General.......................................................................................................... ............................... 14
SpecialTax ....................................................... ...............................
PledgedFunds ............................................................................................... ............................... 16
Securityfor the Bonds ................................................................................... ............................... 19
Covenants of the City ......................... 20
Enforcement of Payment of Special Tax ....................................................... ............................... 20
MarketAbsorption Study .............................................................................. ............................... 22
Summaryof the Appraisal ............................................................................. ............................... 23
Valueto Lien Ratio ....................................................................................... ............................... 23
Tax Assessment, Collection and Representative Property Taxes ................. ............................... 24
SUMMARY OF THE PUBLIC INFRASTRUCTURE AGREEMENT ................... ............................... 25
SUMMARY OF THE ANNEXATION AGREEMENT AND PLANNED DEVELOPMENT
AGREEMENT.............................................................................................. ............................... 26
Annexation ...................
Zoning.......................................................................................................... ............................... 27
Subdivision.................................................................................................... ............................... 27
Variations From Local Codes ....................................................................... ............................... 28
Utilities, Easements and Public Improvements ............................................ ............................... 28
Potable Water Supply, Sanitary Sewer, Recapture and Funding Mechanisms ............................ 28
SecurityInstruments ...................................................................................... ............................... 29
Procedures for Acceptance of Other Improvements ..................................... ............................... 29
Amendments to Ordinances .......................................................................... ............................... 29
Building Code; Building Permits
. ..................................... ............................... ............................. 30
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* Preliminary and subject to change.
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� TABLE OF CONTENTS
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Page
�
Fees and '---_...-------'------.—.—_------__--..3O
Contributions................................................................................................................................ 3U
Autumn Creek Development Fees ............................................................................................... 3l
PROPOSED DEVELOPMENT ----------------------------.------.---3l
General-_.--------.--------------_—.---.--------------..3l
WaterFacilities ............................................................................................................................ 32
|Sanitary Sewers ............................................................................................................................ 33
StormWater Facilities .................................................................................................................. 33
Sidewalks and Street Related Improvements ............................................................................... 33
OtherUtilities ............................................................................................................................... 33
Aouemo _—'_—'----__--'--'----__.------_-''--_--.—_'—__'-..33
FloodPlain/Wetlands ................................................................................................................... 33
Schools......................................................................................................................................... 33
The Developer —.---_—_----___---''--_---_.—_'---.—__34
Bnv6noozeotuReview ................................................................................................................. 3f
SitePlan ....................................................................................... Enror! Bookmark not defined.
THE CITY ._---''--_.'--__----'--''—'—'----_-----_—_—'-'._---35
i City Government and Services ..................................................................................................... 35
! Transportation .............................................................................................................................. 35
' Yorkville Public Library .............................................................................................................. 3f
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Community Life ........................................................................................................................... 36
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Education . 36
| .-----..—~—.----_--_--_---.-------------.--------
| Socioeconomic Information ......................................................................................................... 36
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Housing ........................................................................................................................................ 39
|Wealth Indicators ......................................................................................................................... 4I
| Retail Activity ---.----------.--------.---.--.-------.-------.—_43
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THE SPECIAL SERVICE AREA AND SPECIAL TAX ........................................................................ 43
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� The Special Service Area Act ...................................................................................................... 43
/ Establishment oythe Area ............................................................................................................ 44
Levy, Abatement and Collection uf Special Tax ......................................................................... 44
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Special Service Area Special Tax Roll and Report ..................................................................... 45
'
AdministrativeServices ............................................................................................................... 48
RISKFACTORS ....................................................................................................................................... 40
LimitedSource of Funds .............................................................................................................. 48
Concentration of Ownership ----.--.----------------------------.—.49
InformationNot Verified ............................................................................................................. 49
Failure to Develop Properties .--_—_._—.._------'---'---'_--_'--'__..49
Failure to Achieve Market Projections ......................................................................................... 50
AppraisedValues ......................................................................................................................... f0
Local, State and Federal Land Use Regulations ........................................................................... 58
Competition.................................................................................................................................. 5l
LandDevelopment Costs ............................................................................................................. 5l
OverlappingIndebtedness ............................................................................................................ Sl
Dependence on Unimproved Property ......................................................................................... 52
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TABLE OF CONTENTS
(continued)
Page
ZoningApprovals .......................................................................................... ............................... 52
Permits.......................................................................................................... ............................... 52
TaxDelinquencies ......................................................................................... ............................... 52
Potential Delay and Limitations in Foreclosure Proceedings ........................ ............................... 53
Bankruptcy.................................................................................................... ............................... 54
MaximumSpecial Taxes ............................................................................... ............................... 54
Disclosure to Future Purchasers ...........................
LimitedSecondary Market .............................................................. .:........................................... 54
SecondaryMarket and Prices ........................................................................ ............................... 55
Lossof Tax Exemption ................................................................................. ............................... 55
Risk of Legislative and Judicial Changes ...................................................... ............................... 55
Changein Density ......................................................................................... ............................... 55
UNDERWRITING..................................................................................................... ................................ 55
LEGALOPINIONS ................................................................................................... ............................... 56
TAXMATTERS ........................................................................................................ ............................... 56
CONTINUING INFORMATION .............................................................................. ............................... 57
TheCity ......................................................................................................... ............................... 57
TheDeveloper ............................................................................................... ............................... 58
LIMITEDOFFERING ............................................................................................... ............................... 58
NOLITIGATION ...................................................................................................... ............................... 59
The City .......................... ...... 59
The Developer .............. ..... 59
NORATING .............................................................................................................. ............................... 59
MISCELLANEOUS................................................................................................... ............................... 59
AUTHORIZATION................................................................................................... ............................... 61
APPENDICES
APPENDIX A - Market Absorption Study
APPENDIX B - Special Service Area Special Tax Roll and Report
APPENDIX C - Indenture
APPENDIX D - Appraisal
APPENDIX E - Public Improvements Agreement
APPENDIX F -Bond Opinion
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$15,000,000*
UNITED CITY OF YORKVILLE
KENDALL COUNTY, ILLINOIS
SPECIAL SERVICE AREA NUMBER 2005 -108
SPECIAL TAX BONDS, SERIES 2006 (AUTUMN CREEK PROJECT)
INTRODUCTORY STATEMENT
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This Limited Offering Memorandum, which includes the cover page and all Appendices attached
hereto, is provided to furnish information in connection with the issuance and sale by the United City of
Yorkville, Kendall County, Illinois (the "City") of $15,000,000* aggregate principal amount Special
Service Area Number 2005 -108 Special Tax Bonds, Series 2006 (Autumn Creek Project) due March 1,
2036 (the `Bonds "). The Bonds, if and when issued, will be issued by the City pursuant to (i) the Illinois
Constitution of 1970; (ii) the Special Service Area Tax Law of the State of Illinois (the "Special Service
Area Act"); (iii) the Illinois Local Government Debt Reform Act of the State of Illinois; (iv) Ordinance
No. 2006- of the City adopted on , 2006 (the "Bond Ordinance ") providing for the
issuance of the Bonds; and (v) the Trust Indenture between the City and Trustee dated as of March 1,
2006 (the "Indenture "). The Bonds will be issued as fully registered bonds without coupons in book -
entry only form in denominations of $100,000 or any integral multiple of $1,000 in excess thereof;
provided, however, that from and after the sale of 90% of all of the single family houses and townhomes
associated with the project funded and paid with proceeds of the Bonds and satisfaction of certain
requirements set forth in the Indenture, the Bonds may be exchanged for Bonds of the same aggregate
principal amount and maturity in minimum denominations of $5,000 or integral multiples of $1,000 in
excess thereof, as further described herein. The Bonds will be secured primarily by the proceeds of the
Special Tax (as defined in the Special Service Area Special Tax Roll and Report attached hereto as
j Appendix B and hereafter referred to as the "Special Tax Report") levied on certain property within the
United City of Yorkville Special Service Area Number 2005 -108 (the "Autumn Creek Area "). In
j addition, the Bonds will be payable from and secured by certain funds established pursuant to the
Indenture. See "THE BONDS." Capitalized terms used but not defined herein shall have the meaning
given such terms in the Indenture. See "APPENDIX C— Indenture."
The Autumn Creek Project consists of approximately 265 acres of land located on the northwest
side of Illinois Route 34, east of State Route 47 and west of Bristol Ridge Road in the United City of
Yorkville, Illinois. The Autumn Creek Area is currently owned by Pulte Home Corporation, a Michigan
corporation, a subsidiary of Pulte Diversified Companies Inc., which is a direct wholly owned subsidiary
of Pulte Homes, Inc. Pulte Homes, Inc. is a publicly held holding company whose direct and indirect
subsidiaries engage in the home building and financial services businesses. See "PROPOSED
DEVELOPMENT —The Developer."
The Developer proposes to develop the Autumn Creek Area with 317 single family detached
homes ( "Single Family Homes ") and 258 townhomes ("Townhomes "). The development of the Single
Family Homes and Townhomes within the Autumn Creek Area is hereinafter referred to as the "Project."
A finished lot for a Single Family Home shall be sometimes referred to herein as a "Single Family Home
Parcel" and finished improved land for a Townhome shall sometimes be referred to herein as a
" Townhome Parcel," respectively. The Single Family Home Parcels and Townhome Parcels are
sometimes collectively referred to as the "Parcels." As of the date hereof, the Developer has executed 17
contracts to sell 2 Single Family Homes and 15 Townhomes within the Autumn Creek Area.
* Preliminary and subject to change.
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The proceeds of the Bonds will be used to: (i) make a deposit to the Reserve Fund for the Bonds
in the amount of the Reserve Requirement equal to $1,465,188 *; (ii) fund capitalized interest through
j March 1, 2008; (iii) make an initial deposit to an Administrative Expense Fund; (iv) fund certain costs of
issuing the Bonds; and (v) make a deposit to the Improvement Fund. See "THE BONDS."
Approximately $11,100,000, consisting of a portion of the proceeds from the sale of the Bonds, will be
deposited into the Improvement Fund, and, together with interest earnings thereon, will be used to finance
the cost of design, construction, installation and performing of certain Special Services (as described
below) to be constructed on behalf of the City by the Developer and dedicated or conveyed to the City, or
such other governmental entity as directed by the City, which consist of engineering, soil testing and
appurtenant work, mass grading and demolition, storm water management facilities, storm drainage
systems and storm sewers, site clearing and tree removal, public water facilities, sanitary sewer facilities,
erosion control measures, roads, streets, curbs, gutters, street lighting, traffic controls, sidewalks, bicycle
paths and related street improvements, park improvements, and equipment and materials necessary for the
maintenance thereof, landscaping, wetland mitigation and tree installation, costs for land and easement
acquisitions relating to any of the foregoing improvements, required tap -on and related fees for water or
sanitary sewer services, and other eligible costs of improvements to serve the Autumn Creek Area
(collectively, the "Special Services ") that are required in connection with the development of the Project.
The amounts held in the Improvement Fund will be available for disbursement subject to certain
restrictions as hereinafter described.
IN THE OPINION OF BOND COUNSEL, THE BONDS WILL CONSTITUTE VALID AND
LEGALLY BINDING LIMITED OBLIGATIONS OF THE CITY, PAYABLE SOLELY AND ONLY
FROM THE SPECIAL TAX (AS PROVIDED IN THE BOND ORDINANCE, THE SPECIAL TAX
REPORT AND THE INDENTURE) AND AMOUNTS ON DEPOSIT IN CERTAIN OF THE FUNDS
AND ACCOUNTS ESTABLISHED AND MAINTAINED UNDER THE INDENTURE, AS SET
FORTH HEREIN. THE BONDS ARE NOT GENERAL OBLIGATIONS OF THE CITY AND
NEITHER THE FULL FAITH AND CREDIT NOR THE GENERAL TAXING POWER OF THE
CITY, THE COUNTY OF KENDALL, THE STATE OF ILLINOIS, OR ANY POLITICAL
SUBDIVISION THEREOF IS PLEDGED TO THE PAYMENT OF THE BONDS. NO HOLDER OF
ANY BOND SHALL HAVE THE RIGHT TO COMPEL THE EXERCISE OF ANY TAXING POWER
OF THE CITY (OTHER THAN THE LEVY OF THE SPECIAL TAX) FOR PAYMENT OF THE
PRINCIPAL AMOUNT OF, PREMIUM, IF ANY, OR INTEREST ON THE BONDS.
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A copy of any document or agreement referred to herein may be obtained upon request from
William Blair & Company, L.L.C. (the "Underwriter").
THE BONDS
General
The Bonds will be issued in the aggregate principal amount of $15,000,000 *, will bear interest at
the rate set forth on the cover page of this Limited Offering Memorandum and will mature on the date set
forth on the cover page of this Limited Offering Memorandum. The Bonds will be subject to optional or
mandatory redemption as described herein.
The Depository Trust Company, New York, New York ( "DTC "), will act as securities depository
for the Bonds. Principal of, premium, if any, and interest on the Bonds will be paid by the Trustee
* Preliminary and subject to change.
2
directly to DTC, which will remit such principal, premium, if any, and interest to DTC's Participants,
who, in turn will be responsible for remitting such payments to the Beneficial Owners of the Bonds. See
"THE BONDS —Book- Entry-Only System."
Interest on the Bonds will be paid in lawful money of the United States of America semiannually
on March I and September I of each year (each, an "Interest Payment Date"), commencing September 1,
2006. Interest on the Bonds shall be calculated on the basis of a 360 -day year composed of twelve 30 -day
months.
The sum of $15,000,000* shall be borrowed by the City pursuant to the Special Service Act and
the Local Government Debt Reform Act for the purpose of paying a portion of the costs of the Special
Services, including the costs of the City in connection with the issuance of the Bonds, deposits to the
Reserve Fund, the Improvement Fund and the Administrative Expense Fund and interest on the Bonds
through March 1, 2008. In evidence of such borrowing, the Bonds in the aggregate principal amount of
$15,000,000* shall be issued as provided in the Indenture. The Bonds shall be issued only in fully
registered form without coupons in the denominations of $100,000 and integral multiples of $1,000 in
excess of that sum. At such time as the Developer certifies in writing to the City and the Trustee that not
less than 90 % Single Family Homes and Townhomes have been sold and conveyed to homeowners, the
Bonds may be exchanged for Bonds of the same aggregate principal amount and maturity in minimum
denominations of $5,000 and integral multiples of $1,000 in excess thereof. Prior to any such exchange,
the City shall have executed a Continuing Disclosure Agreement substantially in the form attached to the
Indenture as Exhibit E, with such changes thereto as are deemed necessary by the City and its counsel in
order to comply with federal securities laws, including Rule 15c2 -12 promulgated by the Securities and
Exchange Commission as in effect on the date of such exchange or any successor thereto (the "Rule ").
The Bonds shall be designated "Special Service Autumn Creek Area Number 2005 -108 Special Tax
Bonds, Series 2006 ( "Autumn Creek Project)" and shall be numbered consecutively from R -1 upward but
need not be authenticated or delivered in consecutive order. The Bonds will be dated as of the date of
their delivery.
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Redemption*
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Mandatory Sinking Fund Redemption. The Bonds are subject to mandatory sinking fund
redemption and final payment at a price of par plus accrued interest, without premium, on March 1, of the
years and in the principal amounts as follows:
Year Amount*
2009 $ 35,000
2010 72,000
2011 91,000
2012 112,000
2013 134,000
2014 157,000
2015 183,000
2016 210,000
2017 239,000
2018 270,000
* Preliminary and subject to change.
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2019 303,000
2020 339,000
2021 377,000
2022 418,000
2023 461,000
2024 508,000
2025 557,000
2026 610,000
2027 667,000
2028 727,000
2029 791,000
2030 860,000
2031 933,000
2032 1,011,000
2033 1,095,000
2034 1,183,000
2035 1,278,000
2036 1.379.000
Total 15,000,000
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The City covenants that it will redeem the Bonds pursuant to the mandatory sinking fund
redemption requirements for the Bonds to the extent amounts are on deposit in the Bond and Interest
Fund. If the full amount of the sinking fund requirement as set forth in the chart above is not on deposit
in the Bond and Interest Fund on the date set forth in the chart above, the Bonds shall only be redeemed in
an amount equal to the amount on deposit in the Bond and Interest Fund (provided that any such
redemption shall only be in an Authorized Denomination, as that term is defined in the Indenture) with
the remaining amounts to be redeemed once moneys are on deposit in the Bond and Interest Fund. Proper
provision for mandatory redemption having been made, the City covenants that the Bonds so selected for
redemption shall be payable upon redemption and taxes have been levied and will be collected as
provided in the Indenture and in the Bond Ordinance for such purpose.
.Optional Redemption. The Bonds are also subject to optional redemption prior to maturity at the
option of the City, in whole or in part, on any date on or after March 1, 2016 at a redemption price
(expressed as a percentage of the principal amount of the Bonds to be redeemed), as set forth below, plus
accrued and unpaid interest to the date of redemption:
Redemption
Redemption Dates Prices
March 1, 2016 through February 28, 2017 .............. 102%
March 1, 2017 through February 28, 2018 .............. 101
March 1, 2018 and thereafter .... ............................... 100
Any optional redemption of the Bonds in part will be applied, to the extent possible, to reduce pro
rata the amount of Bonds required to be redeemed by mandatory sinking fund redemption, so as to
maintain the proportion of principal maturing or subject to mandatory sinking fund redemption in each
year to the total original principal amount of Bonds.
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Mandatory Redemption Upon Condemnation, Completion of Construction and Change in
Density. The Bonds are also subject to mandatory redemption on any Interest Payment Date, in part, at a
redemption price equal to the principal amount to be redeemed, together with accrued interest to the date
fixed for redemption, without premium, from amounts in the Bond and Interest Fund consisting of the
proceeds received by the City in connection with a condemnation of any of the Special Services or any
other property dedicated to, or owned by, the City within the Autumn Creek Area and allocable to the
Bonds as determined by the Special Tax Consultant retained by the City in connection with the Autumn
Creek Area (the "Special Tax Consultant ") and which proceeds are not used by the City to rebuild the
Special Services.
The Bonds are subject to mandatory redemption on any Interest Payment Date, in part, at a
redemption price equal to the principal amount to be redeemed, together with accrued interest to the date
fixed for redemption, without premium, from amounts transferred from the Improvement Fund, if any, to
the Bond and Interest Fund, as described in the Indenture.
The Bonds are subject to mandatory redemption on any Interest Payment Date, in whole or in
part, at a redemption price equal to the principal amount to be redeemed, together with accrued interest to
the date fixed for redemption, without premium, in the event of a mandatory prepayment of the Special
Tax upon a reduction in the Maximum Parcel Special Tax (as defined in the Special Tax Report) such that
the annual debt service coverage ratio calculated pursuant to the Special Tax Report is less than 110% as
a result of a change in the expected number of Single Family Homes or Townhomes to be built within the
Autumn Creek Area as set forth in the final plat or plats of subdivision approved by the City, or any other
event that reduces the total of the Maximum Parcel Special Tax such that the annual debt service
coverage ratio calculated pursuant to the Special Tax Report is less than 110% as described in, and in the
amounts set forth in, the Special Tax Report.
Any mandatory redemption of the Bonds as described in the preceding three paragraphs will be
applied, to the extent possible, to reduce pro rata the amount of Bonds required to be redeemed by
mandatory sinking fund redemption and so as to maintain the proportion of principal maturing or subject
to mandatory sinking fund redemption in each year to the total original principal amount of the Bonds.
Special Mandatory Redemption from Optional Prepayment of Special Tax. Property owners may
prepay the Special Tax at any time. See "THE BONDS—Optional Prepayment of Special Tax." The
proceeds received from any such prepayments will be used to redeem the Bonds in part. Consequently,
the Bonds are also subject to mandatory redemption on any March 1, June 1, September 1, or December
1, in part, from amounts available for disbursement from the Special Redemption Account (which
includes optional prepayments of the Special Tax and amounts transferred from the Reserve Fund and the
Capitalized Interest Account to the Special Redemption Account) pursuant to the Indenture, at a
redemption price (expressed as a percentage of the principal amount of the Bonds to be redeemed), as set
forth below, together with accrued interest on such Bonds to the date fixed for redemption:
Redemption
Redemption Dates Prices
On or prior to February 29, 2016 ......... ............................... 103%
March 1, 2016 through February 28, 2017 .......................... 102
March 1, 2017 through February 28, 2018 .......................... 101
March 1, 2018 and thereafter ............... ............................... 100
Any special mandatory redemption of the Bonds pursuant to the previous paragraph will be
applied, to the extent possible, to reduce pro rata the amount of the Bonds required to be redeemed by
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mandatory sinking fund redemption and so as to maintain the proportion of principal maturing or subject
the total original rinci al amount of Bonds.
to mandatory sinking fund redemption m each year to principal
Redemption Provisions; Notice of Redemption. If less than all the Bonds of any maturity are to
be redeemed on any redemption date, the Bond Registrar appointed in the Indenture shall assign to each
Bond of the maturity to be redeemed a distinctive number for each $1,000 of principal amount of that
Bond. The Bond Registrar shall then select by lot from the numbers so assigned, using such method as it
shall deem proper in its discretion, as many numbers as, at $1,000 per number, shall equal the principal
amount of Bonds of that maturity to be redeemed; provided that following any redemption, no Bond shall
be outstanding in an amount less than the minimum Authorized Denomination, except as necessary to
effect the mandatory sinking fund redemption of Bonds as set forth above or to effect a special mandatory
redemption from optional prepayments when the total aggregate principal amount of Bonds outstanding is
less than the minimum Authorized Denomination.
Notice of the redemption of any Bonds, which by their terms shall have become subject to
redemption, shall be given to the Notice Beneficial Owners (as defined in the Indenture) and the
registered owner of each Bond or portion of a Bond called for redemption not less than 30 or more than
60 days before any date established for redemption of Bonds, by the Bond Registrar, on behalf of the
City, by fast -class mail sent to the registered owner's last address, if any, appearing on the registration
books kept by the Bond Registrar. All notices of redemption shall include at least the designation, date
and maturities of Bonds called for redemption, CUSIP Numbers, if available, and the date of redemption.
In the case of a Bond to be redeemed in part only, the notice shall also specify the portion of the principal
amount of the Bond to be redeemed. The mailing of the notice specified above to the Notice Beneficial
Owners and the registered owner of any Bond shall be a condition precedent to the redemption of that
Bond, provided that any notice which is mailed in accordance with the Indenture shall be conclusively
presumed to have been duly given whether or not the owner received the notice. The failure to mail
notice to the owner of any Bond, or any defect in that notice, shall not affect the validity of the
redemption of any other Bond for which notice was properly given.
Any notice of optional redemption may also state (and shall state if the City shall so direct) that
the redemption is conditioned on receipt of moneys for such redemption by the Trustee on or prior to the
redemption date; if such moneys are not received, the redemption of the Bonds for which notice was
given shall not be made. In the event of any revocation of notice of optional redemption, the Trustee shall
send notice of such revocation to the registered owners of the Bonds within three (3) Business Days after
such proposed redemption date.
Purchase in Lieu of Redemption. In lieu of redemption as provided in the Indenture, moneys in
the Bond and Interest Fund may be used and withdrawn by the City for the purchase of outstanding
Bonds, at public or private sale as and when, and at such prices (including brokerage and other charges)
as the City may provide, but in no event may Bonds be purchased at a price in excess of the principal
amount of such Bonds, plus interest accrued to the date of purchase and any premium which would
otherwise be due if such Bonds were to be redeemed in accordance with the Indenture.
Optional Prepayment of Special Tax
The manner in which the Special Tax may be prepaid is described in the Special Tax Report.
Generally, the Special Tax may be prepaid with respect to any Parcel of property (as defined in the
Special Tax Report) at any time and the obligation to pay the Special Tax permanently satisfied by the
payment of (i) an amount equal to all delinquent Special Tax on such Parcel, including any applicable
penalties and related costs as required by law, and Special Tax due on such Parcel but not yet paid for the
Calendar Year in which such prepayment is made, plus (ii) an amount equal to the amount of prepayment
6
determined in accordance with the formula set forth in the Special Tax Report. See Appendix B hereto
for a more complete discussion of the calculation of the amount of prepayment of Special Tax.
I
Mandatory Prepayment of Special Tax
In addition to the optional prepayment as described above, upon any event that reduces the total
of the Maximum Parcel Special Tax (as defined in the Special Tax Report) as a result of an amendment to
the Preliminary Plat or Final Plat (as defined in the Special Tax Report) or any other event that reduces
the total Maximum Parcel Special Taxes such that the annual debt service coverage ratio calculated
pursuant to Section VI.G. of the Special Tax Roll and Report is less than 110 %, the Special Tax Report
calls for a mandatory prepayment of the Special Tax ( "Mandatory Special Tax Prepayment "). The
amount of the Mandatory Special Tax Prepayment is determined in accordance with the formula set forth
in the Special Tax Report. A Mandatory Special Tax Prepayment would not reduce the Special Tax that
has been levied on any Parcel in the manner described in the Special Tax Report. See the information
included in Appendix B hereto for a more complete discussion of Mandatory Special Tax Prepayment.
Book-Entry-Only System
THE INFORMATION PROVIDED IMMEDIATELY BELOW CONCERNING DTC AND
THE BOOK - ENTRY -ONLY SYSTEM, AS IT CURRENTLY EXISTS, IS BASED SOLELY ON
INFORMATION PROVIDED BY DTC AND IS NOT GUARANTEED AS TO ACCURACY OR
COMPLETENESS BY, AND IS NOT TO BE CONSTRUED AS A REPRESENTATION BY, THE
UNDERWRITER, THE CITY, OR THE DEVELOPER.
The Depository Trust Company ( "DTC "), New York, NY, will act as securities depository for the
Bonds. The Bonds will be issued as fully- registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an authorized representative of
DTC. One fully- registered Bond will be issued in the aggregate principal amount of such issue, and will
be deposited with DTC.
DTC, the world's largest depository, is a limited- purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code, and a "clearing agency" registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over 2 million issues
of U.S. and non -U.S. equity issues, corporate and municipal debt issues, and money market instruments
from over 85 countries that DTC's participants ( "Direct Participants ") deposit with DTC. DTC also
facilitates the post -trade settlement among Direct Participants of sales and other securities transactions in
deposited securities, through electronic computerized book -entry transfers and pledges between Direct
Participants' accounts. This eliminates the need for physical movement of securities certificates. Direct
Participants include both U.S. and non -U.S. securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is a wholly -owned subsidiary of The
Depository Trust & Clearing Corporation ( "DTCC "). DTCC, in turn, is owned by a number of Direct
Participants of DTC and Members of the National Securities Clearing Corporation, Government
Securities Clearing Corporation, MBS Clearing Corporation, and Emerging Markets Clearing
Corporation, (NSCC, GSCC, MBSCC, and EMCC, also subsidiaries of DTCC), as well as by the New
York Stock Exchange, Inc., the American Stock Exchange LLC, and the National Association of
Securities Dealers, Inc. Access to the DTC system is also available to others such as both U.S. and non-
U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or
maintain a custodial relationship with a Direct Participant, either directly or indirectly ( "Indirect
Participants "). DTC has Standard & Poor's highest rating: AAA. The DTC Rules applicable to its
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Participants are on file with the Securities and Exchange Commission. More information about DTC can
be found at www.dtcc.com.
Purchases of the Bonds under the DTC system must be made by or through Direct Participants,
which will receive a credit for the Bonds on DTC's records. The ownership interest of each actual
purchaser of each Bond ("Beneficial Owner ") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation from DTC of their
purchase. Beneficial Owners are, however, expected to receive written confirmations providing details of
the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant
through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the
Bonds are to be accomplished by entries made on the books of Direct and Indirect Participants acting on
behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership
interests in Bonds, except in the event that use of the book -entry system for the Bonds is discontinued.
To facilitate subsequent transfers, all Bonds deposited by Direct Participants with DTC are
registered in the name of DTC's partnership nominee, Cede & Co., or such other name as may be
requested by an authorized representative of DTC. The deposit of the Bonds with DTC and their
registration in the name of Cede & Co. or such other DTC nominee do not effect any change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the Bonds; DTC's records reflect
only the identity of the Direct Participants to whose accounts such Bonds are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial
Owners will be governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time. Beneficial Owners of the Bonds may wish to take
certain steps to augment the transmission to them of notices of significant events with respect to the
Bonds, such as redemptions, tenders, defaults, and proposed amendments to the Bonds documents. For
example, Beneficial Owners of the Bonds may wish to ascertain that the nominee holding the Bonds for
their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial
Owners may wish to provide their names and addresses to the registrar and request that copies of notices
be provided directly to them.
Redemption notices shall be sent to DTC. If less than all of the Bonds within an issue are being
redeemed, DTC's practice is to determine by lot the amount ofthe interest of each Direct Participant in
such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to
the Bonds unless authorized by a Direct Participant in accordance with DTC's Procedures. Under its
usual procedures, DTC mails an Omnibus Proxy to issuers as soon as possible after the record date. The
Omnibus Proxy assigns Cede & Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Bonds are credited on the record date (identified in a listing attached to the Omnibus Proxy).
Redemption proceeds, distributions, and dividend payments on the Bonds will be made to Cede &
Co., or such other nominee as may be requested by an authorized representative of DTC. DTC's practice
is to credit Direct Participants' accounts upon DTC's receipt of funds and corresponding detail
information from issuer or its Agent, on payable date in accordance with their respective holdings shown
on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of such Participant and not of
DTC nor its nominee, Agent, or the City, subject to any statutory or regulatory requirements as may be in
8
effect from time to time. Payment of redemption proceeds, distributions, and dividend payments to
Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the
responsibility of the City or Agent, disbursement of such payments to Direct Participants will be the
responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the
responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as depository with respect to the Bonds at any time
by giving reasonable notice to the City or Agent. Under such circumstances, in the event that a successor
depository is not obtained, Bonds are required to be printed an delivered.
The City may decide to discontinue use of the system of book -entry transfers through DTC (or a
successor securities depository). In that event, Bonds will be printed and delivered as described in the
Indenture.
NEITHER THE CITY, THE UNDERWRITER, THE TRUSTEE, NOR THE DEVELOPER
WILL HAVE ANY RESPONSIBILITY OR OBLIGATION TO ANY DIRECT PARTICIPANTS OR
INDIRECT PARTICIPANTS OR THE PERSONS FOR WHOM THEY ACT WITH RESPECT TO
(1) THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY SUCH DIRECT
PARTICIPANT OR INDIRECT PARTICIPANT; (2) THE PAYMENT BY ANY PARTICIPANT OF
ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF THE PRINCIPAL OF OR
INTEREST OR PREMIUM ON THE BONDS; (3) THE DELIVERY BY ANY SUCH DIRECT
PARTICIPANT OR INDIRECT PARTICIPANT OF ANY NOTICE TO ANY BENEFICIAL OWNER
THAT IS REQUIRED OR PERMITTED UNDER THE TERMS OF THE INDENTURE TO BE GIVEN
TO BONDHOLDERS; (4) THE SELECTION OF THE BENEFICIAL OWNERS TO RECEIVE i
PAYMENT IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS; OR (5) ANY
CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC AS BONDHOLDER.
PLAN OF FINANCE
General
The Autumn Creek Area is being developed by the Developer. Other than the proceeds of the
Bonds, the Developer shall provide all the funds necessary to complete the Special Services. In addition,
the Developer intends to provide all funds necessary to complete private improvements to develop the
Autumn Creek Area and the Project. See "PROPOSED DEVELOPMENT —The Developer" and "PLAN
OF FINANCE — Development Financing."
Development Financing
The Public Infrastructure Agreement For United City of Yorkville Special Service Area Number
2005 -108: Autumn Creek Project (the "Public Infrastructure Agreement ") provides that the Public
Improvements (referred to herein as Special Services) shall be financed with proceeds of the Bonds. In
the event the construction of the Public Improvements is not completed, and the remaining bond proceeds
are insufficient to pay for the costs of the completion, the City has the right to draw upon a performance
bond to be deposited by the Developer pursuant to the terms of the Public Infrastructure Agreement. See
"SUMMARY OF THE PUBLIC INFRASTRUCTURE AGREEMENT."
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The Special Services
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The Special Services consist of engineering, soil testing and appurtenant work, mass grading and
demolition, storm water management facilities, storm drainage systems and storm sewers, site clearing
and tree removal, public water facilities, sanitary sewer facilities, erosion control measures, roads, streets,
curbs, gutters, street lighting, traffic controls, sidewalks, bicycle paths and related street improvements,
park improvements and equipment and materials necessary for the maintenance thereof, landscaping,
wetland mitigation and tree installation, costs for land and easement acquisitions relating to any of the
foregoing improvements, required tap -on and related fees for water or sanitary sewer services, and other
eligible costs of improvements to serve the Autumn Creek Area. The Special Services to be paid for with
the proceeds of the Bonds include the following: *
Earth Balancing 561,334
Erosion Control 176,485
Sanitary Sewer 1,475,675
Storm Sewer 2,732,580
Water Mains 1,473,660
Asphalt Binder 1,011,113
Surface 197,918
Road Undercuts/Lime Stabilization 199,636
Curb & Gutter 323,334
Common Sidewalk 68,896
Public Utilities 131,207
Street Lighting 133,982
Street Signs 1,996
Offsite Sanitary 430,335
Wetland Mitigation and Monitoring 3,742
Irrigation 9,354
Soft Costs 2.444.753
Total 11,376,000
Pursuant to the Public Infrastructure Agreement, the Bond proceeds may be shifted from one of
the foregoing line items to any other Special Service as set forth in the Public Infrastructure Agreement so
long as such Special Services are in conformity with the Special Tax Report.
Pursuant to the Indenture, the amount of the Bond proceeds to be used to construct, acquire,
install and dedicate the Special Services benefiting the Project will be placed in the Improvement Fund.
The amounts held in the Improvement Fund will be available for disbursement upon receipt by the
Trustee of a Disbursement Request from the City as required by, and in accordance with, the terms of the
Public Infrastructure Agreement and the Indenture.
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The proceeds of the Bonds are intended to be used by the City, or by the Developer on its behalf,
to construct the Special Services benefiting the Project, which will enable the Developer to complete
construction of, and ultimately to obtain certificates of occupancy from the City for, up to 317 Single
Family Homes and 258 Townhomes in the Autumn Creek Area.
* Preliminary and subject to change.
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ESTIMATED SOURCES AND USES OF FUNDS*
Bond Developer
Financed Financed' Total'
Sources:
Bond Proceeds $ 15,000,000 - $ 15,000,000
Developer Funds $ 31,815,730 31,815,730
Interest Earnings 276,188 - 276.188
Total Sources $ 15,276,188 $ 31,815,730 $ 47,091,918
Uses:
Improvements
Land Acquisition $ 14,619,000 $ 14,619,000
Clearing and Brushing 21,700 21,700
Demolition 100,000 100,000
Earth Balancing 561,334 2,639,226 3,200,560
Erosion Control 176,485 329,140 505,625
Sanitary Sewer 1,475,675 666,746 2,142,421
Storm Sewer 2,732,580 1,242,416 3,974,996
Water Mains 1,473,660 674,753 2,148,413
Asphalt Binder 1,011,113 456,474 1,467,587
Surface 197,918 89,352 287,270
Road Undercuts/Lime Stabilization 199,636 90,364 290,000
Curb & Gutter 323,334 145,971 469,305
Common Sidewalk 68,896 31,104 100,000
Public Utilities 131,207 62,293 193,500
Street Lighting 133,982 61,217 195,199
Street Signs 1,996 14,804 16,800
Offsite Sanitary 430,335 194,278 624,613
Offsite Paving - 1,784,942 1,784,942
Wetland Mitigation and Monitoring 3,742 26,258 30,000
Irrigation 9,354 35,646 45,000
Landscaping - 945,000 945,000
Amenities - 335,000 335,000
Perimeter Fencing - 12,600 12,600
Soft Costs 2,444,753 7.237.446 9.682.199
Subtotal 11,376,000 31,815,730 43,191,730
Capitalized Interest 1,875,000 - 1,875,000
Debt Service Reserve 1,465,188 - 1,465,188
Administrative Fund 35,000 - 35,000
Costs of Issuance 525,000 - 525.000
Total Uses $ 15,276,188 $ 31,815,730 $ 47,091,918
Developer funds will include intracorporate loans from Pulte Home Corporation. See "PLAN OF FINANCE - Development
Financing."
2 Project Total represents the amounts necessary to complete the Special Services for 317 Single Family Homes and 258 Townhomes.
See "INTRODUCTORY STATEMENT."
3 Assumes an interest rate of 3.0% on the Capitalized Interest Account, the Improvement Fund, and the Reserve Fund.
* Preliminary and subject to change.
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4 Interest is capitalized through March I, 2008.
5 Debt Service Reserve is equal to maximum annual debt service of the Bonds.
6 Includes Underwriter's discount. See "UNDERWRITING."
The Special Services and other Project costs not financed with proceeds of the Bonds will be paid
by the Developer. See "PLAN OF FINANCE - Development Financing" above.
DEBT SERVICE REQUIREMENTS*
The following table sets forth the debt service schedule for the Bonds based on the maturity, and
interest rate set forth on the cover of this Limited Offering Memorandum, assuming no redemptions other
than mandatory sinking fund redemptions are made:
Bond Annual
Year Debt
Ending Princinal Interest Service
3/1/2007 - $ 937,500 $ 937,500
3/l/2008 - 937,500 937,500
3/1/2009 $ 35,000 937,500 972,500
3/1/2010 72,000 935,313 1,007,313
3/1/2011 91,000 930,813 1,021,813
3/1/2012 112,000 925,125 1,037,125
3/1/2013 134,000 918,125 1,052,125
3/1/2014 157,000 909,750 1,066,750
3/1/2015 183,000 899,938 1,082,938
3/1/2016 210,000 888,500 1,098,500
3/1/2017 239,000 875,375 1,114,375
3/1/2018 270,000 860,438 1,130,438
3/1/2019 303,000 843,563 1,146,563
3/l/2020 339,000 824,625 1,163,625
3/1/2021 377,000 803,438 1,180,438
3/1/2022 418,000 779,875 1,197,875
3/1/2023 461,000 753,750 1,214,750
3/1/2024 508,000 724,938 1,232,938
3/1/2025 557,000 693,188 1,250,188
3/1/2026 610,000 658,375 1,268,375
3/1/2027 667,000 620,250 1,287,250
3/1/2028 727,000 578,563 1,305,563
3/1/2029 791,000 533,125 1,324,125
3/1/2030 860,000 483,688 1,343,688
3/1/2031 933,000 429,938 1,362,938
3/1/2032 1,011,000 371,625 1,382,625
3/1/2033 1,095,000 308,438 1,403,438
3/1/2034 1,183,000 240,000 1,423,000
* Preliminary and subject to change.
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3/l/2035 1,2 78,000 166,063 1,444,063
3/1/2036 1,379,000 86,188 1,465,188
$ 15,000,000 $ 20,855,500 $ 35,855,500
The following table sets forth expected Special Tax and Debt Service Coverage:
Expected Special Tax and Debt Service Coverage*
Capitalized
Interest &
1 Debt
Bond Proposed Trustee Service Debt 1
Year Debt & Admin Reserve Adjusted Debt Maximum Service
Endin Service Fees Eamines (2) Service Snecial Tax Coverage
3/1/2007 $ 937,500 = $ (937,500) _ = NA1
3/1/2008 937,500 (937,500) NA1
3/1/2009 972,500 $ 21,175 (43,956) $ 949,719 $ 1,098,400 1.161
3/1/2010 1,007,313 21,493 (43,956) 984,849 1,114,876 1.131
1 3/1/2011 1,021,813 21,815 (43,956) 999,672 1,131,352 1.131
1 3/1/2012 1,037,125 22,142 (43,956) 1,015,312 1,148,403 1.131
1 3/1/2013 1,052,125 22,474 (43,956) 1,030,644 1,165,454 1.131
3/1/2014 1,066,750 22,811 (43,956) 1,045,606 1,183,080 1.131
i 3/1/2015 1,082,938 23,154 (43,956)1 1,062,1361 1,200,706 1.13
3/1/2016 1,098,500 23,501 (43,956) 1,078,0451 1,218,907 1.131
3/1/2017 , 1,114,375 23,853 (43,956) 1,094,2731 1,237,108 1.131
1 3/1/2018 1,130,438 24,211 (43,956) 1,110,6931 1,255,626 1.131
3/1/2019 1,146,563 24,574 (43,956) 1,127,1811 1,274,402 1.13
3/1/2020 1,163,625 24,943 (43,956) 1,144,6121 1,293,495 1.13
3/1/2021 1,180,438 25,317 (43,956) 1,161,7991 1,312,846 1.13
3/1/2022 1,197,875 25,697 (43,956) 1,179,6161 1,332,514 1.13
3/1/2023 1 1,214,750 26,0821 (43,956)1 1,196,8771 1,352,440 1.13
1 3/1/2024 1 1,232,938 26,4741 (43,956)1 1,215,4561 1,372,683 1.13
3/1/2025 1 1,250,188 26,8711 (43,956)1 1,233,1031 1,393,184 1.13
3/1/2026 1 1,268,375 27,2741 (43,956)1 1,251,6931 1,414,002 1.13
1 3/1/2027 1 1,287,250 27,6831 (43,956)1 1,270,977 1,435,395 1.13
1 3/1/2028 1 1,305,563 28,0981 (43,956)1 1,289,705 1,456,788 1.13
1 3/1/2029 1 1,324,125 28,5201 (43,956)1 1,308,689 1,478,756 1.13
1 3/1/2030 1 1,343,688 28,9471 (43,956) 1,328,679 1,500,724 1.13
1 3/1/2031 1 1,362,938 29,3821 (43,956)' 1,348,3641 1,523,267 1.13
1 3/1/2032 1 1,382,625 29,8221 (43,956) 1,368,4921 1,546,127 1.13
3/1/2033 1 1,403,438 30,2701 (43,956)1 1,389,7521 1,569,245 1.13
* Preliminary and subject to change.
13
1
I
3/1/2034 1,423,000 30,724 (43,956) 1,409,768 1,592,938 ' 1.13
3/1/2035 1,444,063 31,185 (43,956) 1,431,291 1,616,948 1.13
3/1/2036 1,465,188 31,652 (43,956) 1,452,884 1,641,216 1.13
(Footnotes:
(1) Trustee Fees and Admin Fees are $21,175 per year increasing at
1.5% per year
(2) Assumes a 3.00% investment
rate.
(3) Debt Service is capitalized through 3/1/08.
SECURITY AND SOURCE OF PAYMENT FOR THE BONDS
i
General
The Bonds and the interest thereon are limited obligations of the City secured and payable from
(i) the Special Tax to be levied, extended and collected on all the taxable real property within the Autumn
Creek Area subject to the Special Tax, including, without limitation, the Parcels, (ii) amounts deposited in
the Bond and Interest Fund, the Reserve Fund, and the Improvement Fund, including a portion of the
proceeds of the Bonds and the interest, profits and other income derived from the investment thereof.
When collected, the Special Tax and any Foreclosure Proceeds shall be placed in the Bond and Interest
Fund. In addition, proceeds received by the City from a condemnation of any of the Special Services or
any other property owned by or dedicated to the City within the Special Service Autumn Creek Area and
allocable to the Bonds, provided such proceeds are not used to rebuild the Special Services, shall be
deposited in the Bond and Interest Fund as security for the Bonds.
The amount of Special Tax that the City may levy in the Autumn Creek Area in any year is
strictly limited by the maximum rates approved by the Corporate Authorities at the time of formation of
the Autumn Creek Area. The City is legally authorized under the Special Service Area Act, and has
covenanted in the Indenture, to extend and collect the Special Tax in an amount determined according to
the Special Tax Report. Pursuant to the Bond Ordinance the City has levied the Special Tax in the
amounts set forth in the Maximum Special Tax column in the Table set forth below in "THE SPECIAL
SERVICE AREA AND SPECIAL TAX — Special Service Area Special Tax Roll and Report," and will
abate such tax each year to the extent it is not required to pay Administrative Expenses and principal of,
redemption premium on, or interest on the Bonds. See "SECURITY AND SOURCE OF PAYMENT
FOR THE BONDS — Special Tax" below. The Special Tax Report apportions the total amount of Special
Tax to be collected among the Parcels in the Autumn Creek Area as more particularly described herein.
Any Mandatory Prepayment of the Special Tax shall be levied against the Parcels that result in
application of the prepayment provisions. The Maximum Parcel Special Tax will remain unchanged for
the Parcels that did not result in the application of the prepayment provisions. See "THE SPECIAL
SERVICE AREA AND SPECIAL TAX — Special Service Area Special Tax Roll and Report" and
"APPENDIX B— Special Service Area Special Tax Roll and Report."
Special Tax
The levying of the Special Tax is authorized by the Corporate Authorities in Ordinance
i No. , adopted at a meeting held on , 2006 (the "Establishing Ordinance "). The
I
14
I
City has caused (i) the Establishing Ordinance to be recorded on or before the date of delivery of the
Bonds with the Recorder of Deeds of Kendall County, Illinois, and (ii) the Declaration of Consent of the
Developer to be recorded on or before such date of delivery with the Recorder of Deeds of Kendall
County, Illinois.
The Bonds are secured by, among other things, a pledge of Special Tax including all scheduled
payments of Special Tax received by the City, interest thereon, and proceeds of the redemption or sale of
property sold as a result of foreclosure of the lien of Special Tax. Pursuant to the Bond Ordinance the
City has levied the Special Tax in the amounts set forth in the Maximum Special Tax column in the Table
set forth below in "THE SPECIAL SERVICE AREA AND SPECIAL TAX — Special Service Area
Special Tax Roll and Report," and will abate such tax each year to the extent it exceeds the Special Tax
Requirement as calculated by the Special Tax Consultant on its behalf. The City has covenanted in the
Bond Ordinance and the Indenture annually on or before the last Tuesday of December for each of the
years 2007 through 2034 to calculate or cause the Special Tax Consultant to calculate the Special Tax
Requirement; to amend the Special Tax Roll and provide the county tax collector with the amended
Special Tax Roll; to adopt an ordinance approving the amount of the current calendar year's Special Tax
Requirement; and abating the Special Tax levied pursuant to the Bond Ordinance to the extent the taxes
levied pursuant to the Bond Ordinance exceed the Special Tax Requirement as calculated by the City
pursuant to the Establishing Ordinance and the Special Tax Roll and Report. On or before the last
Tuesday of January for each of the years 2008 through 2035 the Special Tax Consultant shall notify the
Trustee who shall notify the Notice Beneficial Owners of the amount of the Special Tax Requirement and
the amount of the Special Tax to be abated. The City shall take all actions which shall be necessary to
provide for the levy, extension, collection and application of the taxes levied by the Bond Ordinance,
including enforcement of such taxes by providing the County with such information as is deemed
necessary to enable the County to include any property subject to delinquent Special Taxes in the County
Collector's annual tax sale and in the event the tax lien is forfeited at such tax sale, by institution of
foreclosure procedures as provided by law; provided, however, that the obligation to institute any
foreclosure action against any taxpayer other than a taxpayer owning at least five percent of the property
in the Special Service Area shall only arise in the event the City makes the determination that the
proceeds from the foreclosure action have a commercially reasonable expectation of exceeding the costs
thereof. See "THE SPECIAL SERVICE AREA AND SPECIAL TAX — Special Service Area Special
Tax Roll and Report."
The levy of the Special Tax is subject to certain limitations. The levy of the Special Tax on each
Parcel within the Autumn Creek Area is constrained by the Maximum Parcel Special Tax amount
applicable to such Parcel; if there is ad event that reduces the annual debt service coverage ratio to less
than 110% the City would levy a Mandatory Prepayment thereby reducing the Maximum Special Tax
levied upon the Autumn Creek Area as a whole; the Maximum Parcel Special Tax (i.e., the maximum
per -parcel Special Tax) would not increase. See "THE SPECIAL SERVICE AREA AND SPECIAL
TAX — Special Service Area Special Tax Roll and Report" and "RISK FACTORS — Maximum Special
Taxes" herein. The full amount of the Maximum Parcel Special Tax as set forth in the subcaption under
the caption "Special Tax Roll and Report" has been levied pursuant to the Bond Ordinance. Pursuant to
the Indenture, the City covenants that, to the extent necessary to enforce a prepayment, it will adopt a
supplemental levy ordinance within the Autumn Creek Area in the event of a mandatory prepayment of
the Special Tax pursuant to the Special Tax Report caused by a change in the expected number of Single
Family Homes or Townhomes as set forth in the final plat of subdivision approved by the City, to the
extent the mandatory prepayment amount calculated pursuant to the terms of the Special Tax Report
exceeds the Special Tax levied for the year in which the prepayment is due pursuant to the Bond
Ordinance.
15
I
Although the Special Tax, when levied, will constitute a lien on Parcels within the Autumn Creek
Area, it does not constitute a personal indebtedness of the owners of such Parcels within the Autumn
Creek Area. There is no assurance that the owners of such Parcels in the Autumn Creek Area will be
financially able to pay the annual Special Tax or that they will pay such tax even if financially able to do
so. See "RISK FACTORS" herein.
The City may not issue additional bonds under the Indenture other than bonds issued to refund the
Bonds.
Pledged Funds
Bond and Interest Fund. The Indenture creates and establishes with the Trustee a separate and
special fund of the City established exclusively for paying principal of, interest on and redemption
premium on the Bonds and which is designated as "The Special Service Area Number 2005 -108 Special
Tax Bonds, Bond and Interest Fund" (the "Bond and Interest Fund "). When collected, the Special Taxes
and the Foreclosure Proceeds, including any interest and penalties collected in connection with such
Special Taxes or Foreclosure Proceeds shall be placed in the Bond and Interest Fund and the City shall
identify for the Trustee the amount so deposited. The City may provide for the County to transmit
directly to the Trustee for deposit to the Bond and Interest Fund any Special Taxes collected by the
County. In addition, proceeds received by the City in connection with a condemnation of any of the
Special Services or any other property dedicated to or owned by the City within the Special Service Area
and allocable to the Bonds as determined by the Special Tax Consultant which is not used to rebuild the
Special Services shall be deposited in the Bond and Interest Fund. Moneys deposited in the Bond and
Interest Fund and investments of the Bond and Interest Fund shall never be commingled with or loaned to
any other funds of the City. All interest and other investment earnings on the Bond and Interest Fund
shall become, when received, a part of the Bond and Interest Fund. When the amount of condemnation
proceeds deposited to the Bond and Interest Fund equals $1,000 or more, such amount shall be used to
redeem Bonds pursuant to the Indenture on the next Interest Payment Date. Any amounts representing
condemnation proceeds which remain on deposit in the Bond and Interest Fund for a continuous period of
thirty (30) months and which will not be used to redeem the Bonds on the next Interest Payment Date will
' be used to pay debt service on the Bonds on the next Interest Payment Date.
i
Amounts deposited in the Bond and Interest Fund are appropriated for and irrevocably pledged
to, and shall be used solely for the purpose of, paying the principal of and interest and redemption
premium on the Bonds, or for transfers to the Reserve Fund or the Administrative Expense Fund as
permitted in the Indenture.
At any time after September 1 but in no event later than December 1 of each year, the Trustee
will determine the amount needed to pay principal of and interest and redemption premium on the Bonds
on the next succeeding Interest Payment Date. After the Trustee determines that sufficient amounts are
on deposit in the Bond and Interest Fund to pay principal of, interest on and redemption premium due on
the Bonds on the next succeeding Interest Payment Date, the Trustee shall notify the City and the Special
Tax Consultant of any excess amounts on deposit in the Bond and Interest Fund, and, at the written
direction of the City, shall transfer an amount from the Bond and Interest Fund to the Administrative
Expense Fund which the City has determined will be adequate, together with other amounts in the
Administrative Expense Fund or reasonably expected to be transferred to or deposited in such Fund, to
pay all Administrative Expenses during the succeeding calendar year. After making such transfer to the
Administrative Expense Fund any excess amounts on deposit in the Bond and Interest Fund will be
transferred to the Reserve Fund to the extent necessary to replenish the Reserve Fund to the Reserve
Requirement (as defined below under the subcaption "Reserve Fund ") and thereafter any remaining
excess shall be retained in the Bond and Interest Fund and applied to pay principal and interest coming
16
I
due on the Bonds on the next Interest Payment date; provided, however, that investment earnings on
amounts on deposit in the Bond and Interest Fund on or prior to the completion of the Special Services
shall be transferred to the Improvement Fund and thereafter retained in the Bond and Interest Fund.
Written notice of each such transfer to the Reserve Fund shall promptly be given to the Notice Beneficial
Owners.
Capitalized Interest Account. A separate account designated the "Capitalized Interest Account"
exists within the Bond and Interest Fund established with the Trustee. Amounts deposited in the
Capitalized Interest Account shall be used and applied solely for the purpose of paying interest on the
Bonds first coming due or for transfer to the Special Redemption Account as described below and shall be
applied by the Trustee for such purposes without any further authorization or direction. Investment
earnings on amounts in the Capitalized Interest Account shall be transferred to the Improvement Fund.
Special Redemption Account. A separate account designated the "Special Redemption Account"
exists within the Bond and Interest Fund established with the Trustee. All prepayments of Special Tax
made in accordance with the Special Tax Report shall be deposited in the Special Redemption Account.
Amounts deposited in the Special Redemption Account representing optional prepayments of Special Tax
in accordance with the Special Tax Report shall be applied to the redemption of Bonds pursuant to the
Indenture and as described under the caption "THE BONDS — Redemption — Optional Redemption."
Amounts deposited in the Special Redemption Account representing mandatory prepayments of Special
Tax in accordance with the Special Tax Report shall be applied to the redemption of Bonds in accordance
with the Indenture and as described under the caption "THE BONDS — Redemption— Mandatory
Redemption Upon Condemnation, Completion of Construction and Change in Density" and ' — Special
Mandatory Redemption from Optional Prepayment of Special Tax."
Moneys in the Special Redemption Account shall be used exclusively to redeem Bonds pursuant
to the Indenture or to pay debt service on the Bonds pursuant to the Indenture. In the event of any
optional prepayment of Special Taxes, prior to giving notice of the redemption of the Bonds in
accordance with the Indenture, the Trustee will transfer from the Reserve Fund and the Capitalized
Interest Account to the Special Redemption Account an amount equal to the Reserve Fund Credit and the
Capitalized Interest Account Credit, respectively, (as defined in the Special Tax Report) as determined by
and upon the direction of the Special Tax Consultant. When the amount on deposit in the Special
Redemption Account equals or exceeds $1,000, such amount shall be used to redeem the Bonds on the
next March 1, June 1, September 1 or December 1, in accordance with the Indenture. On each such
March 1, June 1, September 1 or December 1, the Trustee shall withdraw from the Special Redemption
Account and pay to the owners of the Bonds to be redeemed the amounts required to redeem such Bonds.
Notwithstanding the foregoing, any amounts contained in the Special Redemption Account for a
continuous period of thirty (30) months and which will not be used to redeem the Bonds on the next
Interest Payment Date in accordance with the immediately preceding sentence and the Indenture shall be
used to pay debt service on the Bonds on the next Interest Payment Date. Any amounts contained in the
Special Redemption Account on the final maturity date of the Bonds shall be used to pay outstanding debt
service on the Bonds.
Reserve Fund. A separate and special fund of the City exists with the Trustee which is designated
as "The Special Service Area Number 2005 -108 Special Tax Bonds, Reserve Fund" (the "Reserve
Fund "), and which must be maintained in an amount equal to the Reserve Requirement. The Reserve
Requirement is, as of any particular date of calculation, an amount equal to the lesser of (i) 10% of the
stated principal amount of the Bonds, (ii) the maximum annual principal and interest requirements on the
Bonds, or (iii) 125% of the average annual principal and interest requirements on the Bonds, as adjusted
for prepayments pursuant to the Indenture and as described in the preceding paragraph hereof. The
17
Reserve Requirement will initially be $1,465,188 *. Amounts deposited in the Reserve Fund shall be used
solely for the purpose of (i) making transfers to the Bond and Interest Fund to pay the principal of,
including mandatory sinking fund payments, and interest and any premium on, all Bonds when due, in the
event that moneys in the Bond and Interest Fund are insufficient therefor, (ii) making any transfers to the
Bond and Interest Fund if the balance in the Reserve Fund exceeds the amount required to redeem all
Bonds then outstanding, (iii) making transfers to the Special Redemption Account pursuant to the
Indenture, or (iv) if the amount then on deposit in the Reserve Fund is at least equal to the Reserve
Requirement, for transfer in accordance with the Indenture, and as described in the next paragraph.
On the Business Day prior to each Interest Payment Date, moneys in the Reserve Fund in excess
of the Reserve Requirement shall be transferred by the Trustee from the Reserve Fund to the
Bond and
Improvement Fund on or prior to completion of the Special Services, and thereafter to the B o
Interest Fund to be used for the payment of interest on Bonds on the next following Interest Payment
Date.
Improvement Fund. A separate and special fund of the City which is designated as "The Special
Service Area Number 2005 -108 Special Tax Bonds, Improvement Fund" (the "Improvement Fund ")
exists with the Trustee. Moneys in the Improvement Fund shall be disbursed solely for the payment of
the cost of acquiring, constructing, installing and performing the Special Services. Disbursements from
the Improvement Fund shall be made by the Trustee upon receipt of a Disbursement Request of the City
executed by an Authorized Officer of the City which shall (i) set forth the amount required to be
disbursed, the purpose for which the disbursement is to be made, state that such Special Services (or
portions thereof) have been completed in accordance with the terms of the Public Infrastructure
Agreement, state that the disbursement is for the payment of a Special Service, and include payment
instructions to the Trustee for the amount to be disbursed; and (ii) certify that no portion of the amount
then being requested to be disbursed was set forth in any previous request for disbursement.
A copy of each Disbursement Request shall be delivered by the Trustee to the Special -Tax
Consultant. Each Disbursement Request, together with all previously submitted Disbursement Requests,
shall not exceed those amount set forth in the Special Tax Roll and Report for Single Family Homes and
Townhomes. In the event a Disbursement Request seeks payment of amounts in excess of such amounts,
the Trustee shall only disburse funds for such excess amounts upon receipt of the Special Tax
Consultant's certificate approving the disbursement and stating that the disbursements for payment of the
Special Services have been in substantial conformity with the Special Tax Roll and Report.
On the date on which a certificate of an Authorized Officer of the City is delivered certifying that
the Special Services have been completed (the "Completion Date "), the Trustee shall transfer all amounts
remaining in the Improvement Fund to the Bond and Interest Fund to be applied to the redemption of
Bonds pursuant to the Indenture; provided, however, that any amounts so transferred which do not equal
$1,000 or an integral multiple of $1,000 may be applied to pay interest owing on the Bonds on the next
succeeding Interest Payment Date; and provided further, however, that upon written direction of an
Authorized Officer of the City, an amount specified by the City may be transferred to the Capitalized
Interest Account upon delivery to the Trustee of an opinion of Bond Counsel to the effect that the transfer
of such amounts will not adversely affect the exclusion from gross income of interest on the Bonds for
federal income tax purposes and is permitted under Illinois law. All investment earnings on amounts on
deposit in the Improvement Fund prior to the Completion Date shall be retained therein to pay the costs of
the Special Services.
* Preliminary and subject to change.
18
Costs oflssuance Account. A separate account designated the "Costs of Issuance Account" exists
within the Improvement Fund established with the Trustee. Amounts deposited in the Costs of Issuance
Account shall be used solely for the purpose of paying costs incurred by the City in connection with the
issuance of the Bonds and shall be administered according to the Indenture. On the date which is six
months after the date of issuance of the Bonds, the Trustee will transfer all amounts remaining in the
Costs of Issuance Account to the Improvement Fund.
Administrative Expense Fund. A separate and special fund of the City which is designated as
"The Special Service Area Number 2005 -108 Special Tax Bonds, Administrative Expense Fund" (the
"Administrative Expense Fund ") exists with the Trustee. Amounts in the Administrative Expense Fund
shall be withdrawn by the Trustee and paid to the City or its order upon receipt by the Trustee of a written
request of an Authorized Officer stating the amount to be withdrawn, that such amount is to be used to
pay an Administrative Expense, and the nature of such Administrative Expense. On or prior to
completion of the Special Services, investment earnings on deposit in the Administrative Expense Fund
shall be transferred by the Trustee to the Improvement Fund and thereafter shall be retained in the
Administration Expense Fund.
Rebate Fund. A separate and special fund of the City exists with the Trustee which is designated
as "The Special Service Area Number 2005 -108 Special Tax Bonds, Rebate Fund" (the "Rebate Fund "),
into which there shall be deposited, as necessary, and as directed by the City or a rebate consultant,
investment earnings in the Bond and Interest Fund and the Reserve Fund Developer to the extent required
so as to maintain the tax exempt status of interest on the Bonds. All rebates, special impositions or taxes
for such purpose payable to the United States of America (Internal Revenue Service) shall be payable
from the Rebate Fund.
Investment of Funds. Moneys on deposit in Funds and Accounts established under the Indenture j
may be invested from time to time in Qualified Investments pursuant to directions from the City to the
Trustee after consulting with the Developer provided that moneys on deposit in the Special Redemption
Account shall be invested in Qualified Investments having a maturity of 180 days or less. See
"APPENDIX C— Indenture" for the definition of "Qualified Investments." Subject to the requirements of
the Indenture, earnings or losses on such investments shall be attributed to the Fund or Account for which
the investment was made. In the event the Trustee does not receive directions from the City to invest
funds held under the Indenture, the Trustee shall invest such funds in a money market fund which invests
in (i) short-term securities issued or guaranteed by the United States Government, its agencies or
instrumentalities and/or (ii) repurchase agreements relating to such securities.
Security for the Bonds
The Bonds and the interest thereon are limited obligations of the City and are secured and payable
solely from (i) the Special Tax levied, and to be extended and collected on all taxable property within the
Autumn Creek Area subject to the Special Tax (including, without limitation, the Parcels), including
interest on such Special Tax and the proceeds of the redemption or sale of property sold as a result of any
actions to foreclose the lien of Special Tax and any interest accrued thereon, brought following a
delinquency in the payment of the Special Tax (the "Special Tax7% (ii) any amounts transferred by the
City to the Bond and Interest Fund including the allocable portion of condemnation proceeds received by
the City not used to rebuild the Special Services, and (iii) amounts deposited in the Bond and Interest
Fund, including the Capitalized Interest Account, the Reserve Fund and the Improvement Fund.
19
Covenants of the City
Pursuant to the Indenture, the City has covenanted for the benefit of the owners of the Bonds (the
"Bondowners ") that, among other things, the City will:
(a) take all actions, if any, which shall be necessary, in order further to provide for
the levy, extension, collection and application of the Special Tax including enforcement of the
Special Tax as described in (c) below;
(b) not take any action which would adversely affect the levy, extension, collection
and application of the Special Tax levied pursuant to the Bond Ordinance and Indenture, except
to abate the Special Tax to the extent permitted by the Indenture and the Special Tax Report;
(c) comply with all requirements of the Special Service Area Act, the Bond
Ordinance and other applicable present and future laws concerning the levy, extension and
collection of the Special Taxes levied pursuant to the Bond Ordinance and Indenture, in each case
so that the City shall be able to pay the principal of and interest on the Bonds as they come due
and replenish the Reserve Fund to the Reserve Requirement and it will take all actions necessary
to assure the timely collection of the Special Taxes, including without limitation, the enforcement
of any delinquent Special Tax by providing the County of Kendall with such information as is
deemed necessary to enable the County to include any property subject to delinquent Special
Taxes in the County Collector's annual tax sale and, in the event that a tax lien is forfeited at such
tax sale, by the commencement and maintenance of an action to foreclose the lien of any
delinquent Special Taxes, all in the manner provided by law; provided, however, that the
obligation to institute any foreclosure action against any taxpayer other than a taxpayer owning at
least five percent of the property in the Special Service Area shall only arise in the event the City
foreclosure makes the determination that the proceeds from the oreclo r e actin n have a commercially
reasonable expectation of exceeding the costs thereof;
O pledge or P
d not encumber, led a lace any charge or lien upon any of the Special Taxes
or other amounts pledged to the Bonds superior to, or on a parity with, or junior to, the pledge and
lien created in the Indenture for the benefit of the Bonds, except as permitted b , or specifically
P P Y P Y
set forth in, the Indenture;
(e) take all actions which are necessary to be taken (and avoid any actions which it is
necessary to avoid being taken) so that interest on the Bonds will not be or become included in
gross income for federal income tax purposes under existing law;
(f) keep, or cause the Trustee to keep, proper books of record and accounts, separate
from all other records and accounts of the City, in which complete and correct entries will be
made of all transactions relating to the.deposits to and expenditure of amounts disbursed from the
Funds and Accounts created under the Indenture and the Special Taxes; and
(g) take all actions which are necessary to be taken to enforce the City's rights under
the Public Infrastructure Agreement.
Enforcement of Payment of Special Tax
The Kendall County Clerk has stated that it intends to incorporate the Special Tax bill into the
regular ad valorem property tax bill. In Illinois, general ad valorem property taxes are levied in one year
and become payable during the following year. At the end of each collection year, the Kendall County
Treasurer applies to the Circuit Court of Kendall County for a judgment for all unpaid general ad valorem
20
property taxes. The Circuit Court of Kendall County order resulting from that application for judgment
provides for a sale of all property with unpaid general ad valorem property taxes. A public sale is held, at
which time successful bidders pay the unpaid general ad valorem property taxes plus penalties (i.e.,
interest penalties and certain other costs). The annual tax sale is usually held during October of any given
year in Kendall County. Unpaid general ad valorem property taxes accrue penalties at the rate of 1-1/2%
per month from their due date until the date of sale. Taxpayers can redeem their property by paying the
purchaser of the delinquent taxes on the property at the general tax sale the amount paid at the sale, plus a
penalty. If redemption does not occur within two and one half years and certain procedural requirements
are met, the purchaser of the property at the tax sale may petition for, and receive a deed to the property
which has been sold for delinquent taxes. Any delinquent Special Tax for any given year would be
included in this general tax sale. In addition to using the annual tax sale as an enforcement mechanism, as
discussed below, a municipality may seek enforcement of unpaid Special Tax through commencement of
foreclosure proceedings pursuant to the Special Service Area Act.
If a delinquency in the payment of the Special Tax occurs, the City is authorized by the Special
Service Area Act to order institution of an action pursuant to Article 9 of the Illinois Municipal Code
(65 ILCS 5/9 -1 -1, et seq.) to foreclose any lien therefor securing the Special Tax. In such an action a
court having jurisdiction would enter a foreclosure decree authorizing the sale of the property subject to
the lien of the Special Tax, and the real property subject to the lien of the Special Tax would be sold at a
judicial foreclosure sale. The ability of the City to foreclose the lien of delinquent unpaid Special Tax
may be limited in certain instances and may require prior consent of the property owner in the event that
the property is owned by any receivership of the Federal Deposit Insurance Corporation (the "FDIC ").
See "RISK FACTORS — Bankruptcy" and "RISK FACTORS Tax Delinquencies."
Such judicial foreclosure proceedings are not mandatory under the Special Service Area Act.
However, in the Indenture, the City has covenanted with the holders of the Bonds to take all actions, if
any, which shall be necessary to provide for the levy and extension, collection and application of the
Special Tax, and to assure the timely collection of Special Tax, including without limitation, the
enforcement of any delinquent Special Tax by the commencement and maintenance of an action to
foreclose the lien of any delinquent Special Tax, provided, however, that the obligation to institute any
foreclosure action shall only arise in the event the City makes the determination that the proceeds from
the foreclosure action have a commercially reasonable expectation of exceeding the costs thereof. For a
description of this covenant, as well as other events of default and remedies under the Indenture, see
"APPENDIX C— Indenture."
No assurances can be given that a judicial foreclosure action, once commenced, will be
completed or that it will be completed in a timely manner. See "RISK FACTORS — Potential Delay and
Limitation in Foreclosure Proceedings" below. Article 9 of the Illinois Municipal Code provides that the
municipality or its assignee may file a complaint to foreclose a special service area tax lien in the same
manner that foreclosures are permitted by law in case of delinquent general taxes. The "law in case of
delinquent general taxes" to which the Illinois Municipal Code refers is the Illinois Revenue Code. Under
such foreclosure proceedings, the court adjudicates the existence of a default in the payment obligation
and authorizes a foreclosure sale; the sale is conducted and the proceeds distributed according to the
respective priorities; the successful bidder is given a certificate of sale; and, if the redemption period
expires without a redemption of the special service area taxes, the certificate of sale may be converted to a
deed. Although the municipality holds the lien for the local improvement and is therefore the proper
party to commence foreclosure procedures, bondholders with bonds secured by special service area taxes
may compel the municipality to perform its duty and use all lawful means, including foreclosure, to
collect the taxes out of which the bondholders are to be paid. Special service area taxes create a lien that
is superior to other liens and encumbrances, and when general property taxes and Special Tax are both
delinquent, the proceeds of any foreclosure action, if insufficient to pay each in full, are divided between
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them on a pro rata basis. If special service area taxes are not paid in full at a foreclosure sale, and the lien
amounts are bid in at such foreclosure sale, then unless the special service area taxes are then redeemed
through payment of the amount of the special service area taxes plus interest, the certificate of sale can be
converted into a deed to the property only after expiration of the applicable redemption period. The
Illinois Constitution prescribes certain minimum redemption periods for unpaid taxes on property,
including special service area taxes, but the Illinois General Assembly may create longer redemption
periods. For residential property with less than seven dwelling units, the Illinois Constitution provides for
a minimum two -year redemption period. The corresponding statute, however, permits the delinquent
owner of such property to redeem it for two and a half years (35 ILCS 200/21 -350). Additionally, in
certain circumstances the redemption period may be extended for a period which will expire no later than
3 years from the date of the sale (35 ILCS 200/21 -385). If the property can also be considered "vacant
non -farm real estate," the Constitution authorizes a reduction of the redemption period to one year, but the
statute applicable to special service area taxes contains no such exception.
No assurances can be given that the real property subject to sale or foreclosure and sale will be
sold or, if sold, that the proceeds of sale will be sufficient to pay any delinquent installment of special
service area taxes. Neither the Special Service Area Act nor Article 9 of the Illinois Municipal Code
requires the City to purchase or otherwise acquire any lot or parcel of property offered for sale or subject
to foreclosure if there is no other purchaser at such sale. Article 9 of the Illinois Municipal Code does
specify that the special service area taxes will have the same lien priority in the case of delinquency as the
priority of the lien of ad valorem property taxes.
If the Reserve Fund is depleted and delinquencies in the payment of Special Tax exist, there
could be a default or delay in payments to the Bondowners pending prosecution of foreclosure
proceedings and receipt by the City of foreclosure sale proceeds, if any. However, within the limits of the
Special Tax Report and the Special Service Area Act, the City may adjust through abatement the Special
Tax levied on all property within the Autumn Creek Area in future Calendar Years to provide an amount,
taking into account such delinquencies, required to pay debt service on the Bonds and to replenish the
Reserve Fund. The amounts of the Maximum Parcel Special Tax are sufficient to pay the amounts j
required by the Indenture to be paid on the Bonds (except with respect to a Mandatory Prepayment);
however, there are no assurances that the taxes levied will always be collected in their entirety.
Market Absorption Study
Metrostudy (the "Market Consultant ") performed a market analysis of the Autumn Creek Area as
reported in the Management Decision Report & Absorption Analysis dated as of January 20, 2006 (the
"Market Absorption Study ") attached as Appendix A hereto. Neither the Underwriter, Developer nor the
City makes any representation as to the accuracy of the conclusions drawn by the Market Consultant in
the Market Absorption Study.
Based upon its analysis of the expected demographic and economic trends, the market supply and
demand condition, conditions in the United City of Yorkville, and other factors, and assuming the
proposed average prices listed below are adhered to, the Market Consultant estimated that monthly sales
of Single Family Homes and Townhomes in the Autumn Creek Area will be absorbed by end users as
follows:
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Anticipated
Product Line Price Range Sales per Year
I
Low High
$148,000-
Townhomes $182,000 78 83
$248,000-
Single Family Homes $278,000 66 70
$287,000-
$314,000 51 54
While the Market Consultant has endeavored to estimate the rate of sales of Single Family Homes
and Townhomes in the Autumn Creek Area, there can be no assurance that such rate can be obtained.
Failure to achieve these market projections could result in a higher Special Tax burden on the Developer
and on individual Parcels in the Autumn Creek Area than expected and, consequently, the failure of
owners of property within the Autumn Creek Area and the Developer to pay the Special Tax and thereby
cause a default on the Bonds. Prospective purchasers should not assume that the rate of sales of Single
Family Homes or Townhomes will occur as estimated and should review the Market Absorption Study in
its entirety in order to make an informed decision whether to purchase the Bonds. See "APPENDIX A—
Market Absorption Study."
Summary of the Appraisal
i
A market value appraisal of the Parcels was performed by (the
"Appraiser ") as of It is the opinion of the Appraiser that the prospective market value
of the Parcels to a single purchaser is $ (based on 317 fully- improved Single Family
Homes and 258 Townhomes and subject to final plat approval and the satisfactory completion of the
requisite site improvements). It is also the opinion of the Appraiser that the market value of a Single
Family Home Parcel is $ and that of a Townhome Parcel is $ See "APPENDIX
D— Appraisal. "
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Value to Lien Ratio
The following table sets forth the appraised value -to -lien ratio with respect to the Project, based
on $15,000,000* aggregate principal amount of the Bonds:
Appraised Value of Parcels improved with On -Site Special Services
(based on 317 Single Family Homes and 258 Townhomes) ................. $
Bonds Outstanding ..................................................... ............................... $15,000,000*
Value -to -Lien Ratio .................................................... ...............................
This value -to -lien ratio is based on the Appraisal. No assurance can be given that the foregoing
ratio can or will be maintained during the period of time the Bonds are outstanding both because property
values could drop and because other public entities, over which the Autumn Creek Area has no control,
could issue additional indebtedness secured by a lien on a parity with the lien securing payment of the
Special Tax or payable through the levy or imposition of a tax on a parity with the Special Tax.
* Preliminary and subject to change.
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Tax Assessment, Collection and Representative Property Taxes
Under state law, local assessment officers are responsible for determining the assessed valuation
of taxable real property including railroad property not used for transportation purposes. Certain other
types of taxable property including railroad property used for transportation purposes and pollution
control equipment, are assessed by the Illinois Department of Revenue (the "Department "). Valuations
determined by local assessment officers are subject to appeal and review at the county level and then, in
general, to equalization by the Department. Such equalization is achieved by applying to each county's
assessments a multiplier determined by the Department. The purpose of equalization is to provide a
common basis of assessments among counties by adjusting assessments toward the statutory standard of
33 -1/3% of fair market value. Farmland is assessed according to a statutory formula which takes into
account factors such as productivity and crop mix. Taxes are extended against the assessed values after
equalization. Certain statutory exemptions provide for reductions in assessed valuation or for limitations
upon increases in assessed valuation to qualifying taxpayers.
Property tax levies of each taxing body, such as the City, are filed in the office of the county clerk
of each county in which territory of the taxing body is located. The county clerk computes the rates and j
amounts of taxes applicable to taxable property subject to the tax levies of each taxing body and
determines the dollar amount of taxes attributable to the respective parcels of taxable property. The
county clerk then supplies to the appropriate collecting officials within the county the information needed
to bill the taxes in respect to the various parcels therein.
After the taxes have been collected, the collecting officials distribute to the various taxing bodies
their respective shares of the taxes collected. Taxes levied in one calendar year are due and payable in
two installments during the next calendar year. Taxes not paid when due are subject to a penalty of 1' /2%
per month until paid. Unpaid property taxes constitute a lien against the property subject to the tax.
The following table sets forth a statement of general ad valorem taxes, based on current rates, that
would be expected to be assessed against Parcels improved with detached Single Family Homes and
Townhomes in the Autumn Creek Area based on the assessed values for such property set forth below
and the most recent tax bill received by the Developer.
Ad Valorem Taxes*
United City of Yorkville
City of Yorkville, Illinois Single Family Home Townhome
Market Value $ 280,000 $ 180,000
Assessed Value 92,400 59,400
Multiplier 1 1
Average Homeowner's Exemption (5,000.00) (5,000.00)
Taxable Valuation 87,400 54,400
Taxing Agencv Tax Rate ( %1 Tax Rate ( %1
County of Kendall 0.6194 0.6194
Kendall County Forest Preserve 0.0369 0.0369
Bristol Township 0.3800 0.3800
* Preliminary and subject to change.
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Bristol - Kendall Fire District 0.5940 0.5940
Yorkville - Bristol Sanitary District 0.0486 0.0486
Unit School District Number 115 4.0829 4.0829
Community College Dist. Number 516 0.4104 0.4104
City of Yorkville 0.5826 0.5826
Yorkville Library 0.1500 0.1500
Total Tax Rate 6.9048 6.9048
Representative Ad Valorem Tax 6,035 3,756
The City has no control over the amount of additional debt payable from taxes or assessments on
all or a portion of the property within the Autumn Creek Area, that may be issued in the future by other
governmental entities or districts. Nothing prevents the owners of land within the Autumn Creek Area
from consenting to the issuance of additional debt by other public agencies which would be secured by
taxes or assessments on the same property subject to the Special Tax. To the extent such indebtedness is
payable from assessments, and other special taxes levied pursuant to the Special Service Area Act or
other taxes, such assessments, special taxes and other taxes may have a lien on the property within the
Autumn Creek Area in addition to and on a parity with the lien of the Special Tax. Accordingly, the liens
on the property within the Autumn Creek Area could increase without any corresponding increase in the
value of the property within the Autumn Creek Area and thereby reduce the ratio that exists at the time
the Bonds are issued between the value of the property and the debt secured by the taxes and assessments
thereon. The imposition of such additional indebtedness could also reduce the willingness and ability of
the property owners within the Autumn Creek Area to pay the Special Tax when due. See "RISK
FACTORS --- Overlapping Indebtedness."
Moreover, in the event of a delinquency in the payment of a Special Tax, no assurance can be
given that the proceeds of any foreclosure sale would be sufficient to pay the delinquent Special Tax and
any other delinquent special taxes, assessments or taxes. See "RISK FACTORS — Appraised Value ".
SUMMARY OF THE PUBLIC INFRASTRUCTURE AGREEMENT
Introduction. Set forth below is a brief description of the Public Infrastructure Agreement. Such
description does not purport to be comprehensive or definitive and is qualified in its entirety by reference
to the complete form of the Public Infrastructure Agree_ ment, which is included as Appendix E to this
Limited Offering Memorandum.
Agreement to Construct Public Improvements. Pursuant to the Public Infrastructure Agreement,
all Public Improvements ( "Public Improvements" as defined in paragraph E of the Public Infrastructure
Agreement are the same as the Special Services as defined in this Limited Offering Memorandum) shall
be designed and constructed by or at the direction of the Developer, on behalf of the City, and as
approved by the City, in accordance with the Entitlement Documents (as described in the Public
Infrastructure Agreement) and all applicable laws, ordinances, rules and regulations. Pursuant to
Article 3 of the Public Infrastructure Agreement, the Developer is obligated to construct and convey to
the City the Public Improvements. The Developer shall receive payment for the construction,
conveyance, dedication or grant of easement of the Public Improvements in an amount equal to the
Budgeted Amount. In the event that the actual cost of constructing a particular Public Improvement
exceeds the budgeted cost for that Public Improvement ( "Excess Cost "), the Developer can utilize funds
25
allocated to other Public Improvements to pay the Excess Cost; provided however, that any Public
Improvements to be paid for with Bond Proceeds must be in conformity with the Special Tax Roll.
Payment Procedures. The Developer may submit a written request to the City, not more than
once in any calendar month, a Request for Payment for the Budgeted Amount related to the portion of the
Public Improvements that has been completed. The City Engineer will, within ten (10) business days
after submission of a request for payment, inspect the same and determine if the work complies with the
Construction Plans (as defined in the Public Infrastructure Agreement). For all Public Improvements or
portions thereof in compliance, the City will, within two business days of such inspection, execute and
deliver to the Developer and Trustee a Disbursement Request (as defined in the Public Infrastructure
Agreement) which shall entitle the Developer to receive a disbursement from the Bond Proceeds of the
Bonds for the Budgeted Amount for the completed portion of the Public Improvements. If, in the City
Engineer's reasonable opinion, the Public Improvements or portion thereof are not in compliance with the
Entitlement Documents, the City, within five (5) business days of the Request for Payment, will notify the
Developer in writing of the reasons that the Public Improvements or portion thereof are not in compliance
with the Construction Plans. Such notice will specifically identify the Public Improvement which it
believes is not in compliance and specify in reasonable detail an explanation of the reason the Public
Improvements or portion thereof are not in compliance. To the extent that multiple Public Improvements
are included in the Request for Payment, the Developer is .entitled to be paid for those Public
Improvements which the City Engineer determines to be in compliance. The Developer shall proceed to
cure any defect, and shall then resubmit the Request for Payment pursuant to the procedure described
above. The Developer is entitled to receive payment for the actual costs incurred up to the total Budgeted
Amount for the Public Improvements. See Appendix E hereto and the information included in Exhibit B
thereto for a description of the Budgeted Amount for the Public Improvements or portions thereof.
Security. Pursuant to the Public Infrastructure Agreement, (i) the Developer is not required to
post any security for. that portion of the Public Improvements to be paid with Bond Proceeds, and (ii) to
the extent Bond Proceeds are insufficient to pay for the cost of the Public Improvements, Developer shall
provide a performance bond in an amount not to exceed 110% of such insufficiency. In the event that the
Bond Proceeds are insufficient to complete the Public Improvements, the City may draw upon the
performance bond for payment of any Public Improvements according to the procedures set forth in the
City's subdivision code.
Continuing Disclosure. Pursuant to the Public Infrastructure Agreement, the Developer will
make available certain information on an on -going basis. See "CONTINUING INFORMATION —The
Developer."
Sales Contract Rider. Pursuant to Exhibit E of the Public Infrastructure Agreement, the
Developer is obligated to attach a rider to each sales contract (the "Rider ") describing the Autumn Creek
Area, the Maximum Special Tax and the levy and collection process for the Special Tax. The Rider
discloses the frequency, duration and maximum amount of special tax payments to which the purchased
Parcel will be subject, and notifies the purchaser of the ability to prepay the Special Tax.
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SUMMARY OF THE ANNEXATION AGREEMENT AND PLANNED DEVELOPMENT
AGREEMENT
An Annexation Agreement and Planned Development Agreement dated April 12, 2005 (the
"Annexation Agreement "), was entered into among the owners at the time, the Developer and the City
with respect to the Autumn Creek Development. The summary of the Annexation Agreement set forth
below is qualified in its entirety by reference to the definitive Annexation Agreement, copies of which are
26
available upon request from the Underwriter. The following summary pertains only to the provisions of
the Annexation Agreement relating to the Autumn Creek Area.
Annexation
The property annexed is comprised of a Residential Parcel and a Commercial Parcel, as described
in the Annexation Agreement. The Residential Parcel is approximately 265 acres, and the Commercial
Parcel is approximately 21.05 acres.
Zoning
The City agreed in the Annexation Agreement to reclassify the Residential Parcel for zoning
purposes to R -2 and R -3 single family residence districts with a special use for a planned unit
development to be developed with single family homes and townhomes by Ordinance No.
the City reclassified the Residential Parcel to R -2 and R -3 and approved the special use for a planned
development.
Subdivision
Under the Annexation Agreement, the Developer submitted to the City a preliminary PUD plan
and preliminary engineering (referred to as the "Preliminary Plan"). The Plan Commission of the City
recommended approval of the Preliminary Plan as complying with all the provisions of the subdivision
regulations and the zoning ordinances of the City, except for permitted variations or deviations. In
accordance with the one family dwelling unit and townhome concepts set forth in the Preliminary Plan,
the Autumn Creek Area will have an adjusted buildable subdivided lot count of 317 single family lots
258 townhomes, for 575 total dwelling units, subject to the approval of final plat and final engineering.
The preliminary plat sets forth the engineering design for the sanitary sewer, water, storm sewer
service and the storm water retention/detention, as well as the streets and sidewalks serving the Autumn
Creek Development.
The Annexation Agreement provides that the Developer may develop the Autumn Creek
Development in one or more phases over the course of 20 years. Upon the submission by the Developer
to the City of a final plat of subdivision and final engineering plan (collectively, the "Final Plan") for a
development phase which substantially conforms with the Preliminary Plan, the City will promptly
approve the Final Plan, so long as the Developer is not in material breach or default of the Annexation
Agreement. The Developer must cause the final plat to be duly recorded with the Kendall County
Recorder's office and (i) comply with applicable City regulations pertaining to the posting of the
applicable security instruments, (ii) pay the City fees required by the Annexation Agreement and
(iii) obtain any and all other governmental approvals.
Prior to recording a final plat for each phase, the Developer is required to submit to the City a
copy of the Declaration of Covenants, Restrictions and Easements (or similarly named document) (the
"Declaration ") which will establish the covenants, conditions and restrictions for that phase. The
Declaration will provide for the authority of the Developer and/or the City to establish an association or
associations of homeowners (each a "Homeowner's Association ") which will have primary responsibility
for the care and maintenance of the common open space areas within the Autumn Creek Development
( "Common Facilities ") and the collection of assessments from the association members to defray the cost
of the Common Facilities. Each Declaration is to be recorded against each phase of development
simultaneously with the recording of the final plat for each phase.
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Variations From Local Codes
Specific variations and deviations from the City's ordinances, rules, and codes have been
requested, approved and are permitted with respect to the development, construction, and use of the
Autumn Creek Development ( "Permitted Variations "). These Permitted Variations are set forth in the
Annexation Agreement.
Utilities, Easements and Public Improvements
Under the terms of the Annexation Agreement, the Developer agrees that any extension and/or
construction of the utilities and public improvements shall be performed in accordance with existing City
subdivision regulations. Any on -site work and the cost thereof shall be the responsibility of the
Developer, except as otherwise provided in the Annexation Agreement. The City is responsible for
obtaining any off -site easements for water distribution along US Route 34 and for off -site related
improvements as outlined in the Annexation Agreement.
The City agrees that, at the Developer's request, the City shall exercise reasonable and best
efforts to acquire off -site easements. All reasonable costs related to or associated with condemnation of
property as well as the cost of acquisition of the real property approved in advance by the Developer for
easement purposes only, and as to acquisition of fee title, shall be the responsibility of the Developer.
I
Potable Water Supply, Sanitary Sewer, Recapture and Funding Mechanisms
Water Facilities. Under the terms of the Annexation Agreement, the City represents that it has
j sufficient capacity to service the Autumn Creek Development with potable water for domestic water
consumption and fire flow protection. See also, PROPOSED DEVELOPMENT — Water Facilities.
Sanitary Sewers. The City shall assist and cooperate with the Developer in efforts to acquire
adequate sanitary sewer treatment capacity from the Yorkville Bristol Sanitary District ( "YBSD ") and to
obtain adequate means of delivery of such sanitary sewer capacity to the Autumn Creek Development, or,
in the alternative, shall provide such means of delivery, subject to the requirements of the YBSD.
Pursuant to the Annexation Agreement, the Developer shall not become liable to the City or any
other party for recapture for any existing sewer or water lines or storm water lines and/or storage facilities
that may serve the Autumn Creek Area, except for recapture which may become due to MPI
Development, the owner of the property east of the Autumn Creek Area, for improvements installed by
MPI that benefit the Autumn Creek Area. The Developer shall be responsible for paying sewer and water
connection fees for the Autumn Creek Area. See also, PROPOSED DEVELOPMENT — Sanitary Sewers.
Improvement to Kennedy Road. Pursuant to the Annexation Agreement, the City is preparing
plans for the design and construction of improvements to Kennedy Road, which bisects the Autumn
Creek Area. The City shall construct the improvements to Kennedy Road, including underground
crossings where lines and mains for sanitary sewer, water, storm sewer and other utilities may be
extended across Kennedy Road in the future. In order to enable the City to pay for the cost such
improvements, the Developer shall prepay the City's Perimeter Road Fee due for the Autumn Creek Area
in the amount of $1,150,000.00, being the sum of $2,000.00 multiplied by the number of dwelling units
shown in the Preliminary Plans. The prepayment shall be paid in increments, with each increment being
due and payable within 30 days after each draw request is made under the contract let by the City for the
design and construction of the road, with the Developer's total payment not to exceed $1,150,000.00.
The City shall not withhold permits or approvals for any portion of the Autumn Creek Area if the
Kennedy Road improvements are not completed by the City.
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Inclusion of Route 34 Entry Road and Route 34 Detention Area in Developer's Phases.
Pursuant to the Annexation Agreement, Developer agrees to include the construction of the east -west
entry road from Route 34 and Detention Lot A along Route 34 in one of the phases of the Autumn Creek
Area.
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Security Instruments
Posting Security. The Developer is required to deposit with the City irrevocable letters of credit
or surety bonds (the "Security Instruments ") to guarantee completion and maintenance of the public
improvements to be constructed as a part of the Autumn Creek Development that are required by
applicable ordinances of the City. The amount and duration of each Security Instrument will be
established by applicable ordinances of the City. The City Council, pursuant to recommendation by the
City Engineer, will from time to time approve a reduction or reductions in the Security Instruments by an
amount not in excess of 85% of the value certified by the City Engineer of the completed work, so long as
the balance remaining in the Security Instruments is at least equal to 110% of the cost to complete the
remaining public improvements. If the Developer chooses to use a Special, Service Area as a primary
funding mechanism for the installation of the public improvements, the Developer shall not be required to
post any irrevocable letters of credit or surety bonds to guarantee the installation of those public
improvements. Any public improvements installed by the Developer as part of a special service area shall
require the Developer to post a one -year maintenance bond after acceptance by the City of said public
improvements in an amount equal to 10% of the approved engineering's estimate of the costs.
Acceptance of Underground Improvements and Streets. Upon completion and inspection of
underground improvements, streets, and/or related improvements, and acceptance by the City Council
upon recommendation by the City Engineer, the Developer shall be entitled to a release or appropriate
reduction of any applicable security instrument, subject to a maintenance security instrument remaining in
place for a one year period from the date of acceptance by the City. The City is required to exercise good
faith and due diligence in accepting such public improvements.
Procedures for Acceptance of Other Improvements
I
! Pursuant to the Annexation Agreement, upon completion of other public improvements not
constructed specific to any individual neighborhood (i.e. park areas, offske water mains, homeowners
association open space) in each phase of development, and acceptance thereof by the City Council upon
recommendation by the City Engineer, the Developer shall be entitled to a release or appropriate
reduction of any applicable security instrument, subject to a maintenance security instrument remaining in
place for a one year period from the date of acceptance by the City.
Amendments to Ordinances
All ordinances, regulations, and codes of the City, including, without limitation those pertaining
to subdivision controls, zoning, storm water management and drainage, comprehensive land use plan,
building code and related restrictions, as they presently exist, except as amended, varied, or modified by
the terms of the Annexation Agreement, will apply to the Autumn Creek Area for a period of 5 years from
the date of the Annexation Agreement. Any agreements, repeal, or additional regulations which are
subsequently enacted by the City may not be applied to the development of the Autumn Creek Area
except upon the written consent of the Developer. After the 5 year period, the Autumn Creek Area will
be subject to all ordinances, regulations, and codes of the City in existence on or adopted after the
expiration of the 5 year period, provided, however, that the application of any such ordinance, regulation
or code cannot result in a reduction in the number of residential building lots approved for the Autumn
Creek Area, alter or eliminate any of the ordinance variations provided, nor result in any subdivided lot or
structure constructed within the Autumn Creek Area being classified as non - conforming under any
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ordinance of the City. The foregoing to the contrary notwithstanding, in the event the City is required to
modify, amend or enact any ordinance or regulation and to apply it to the Autumn Creek Area pursuant to
the express and specific mandate of any superior governmental authority, such ordinance or regulation
will apply to the Autumn Creek Area and must be complied with by the Developer, provided, however,
that any so called "grandfather" provision contained in any such superior governmental mandate which
would serve to exempt or delay implementation against the Autumn Creek Area will be given full force
and effect.
Building Code; Building Permits
All national amendments, deletions or additions to the building codes of the City pertaining to
life /safety considerations adopted after the date of the Annexation Agreement, will be applicable to the
Autumn Creek Development upon the expiration of the twelfth month following the effective date of such
amendment, except as to those items expressly provided for the Annexation Agreement.
The City shall act upon each application for a building permit within 14 days of the date of
application or from the last day of receipt of required documents. If the application is disapproved, the
City shall provided the applicant with a statement in writing specifying the reasons for the denial.
Fees and Charges
I
During the first 5 years following the date of the Annexation Agreement, the City will impose
upon and collect from the Developer, and its contractors and suppliers, only those permit, license, tap -on
and connection fees and charges, and in such amount or at such rate, as are in effect on the date of the
Annexation Agreement and as is generally applied throughout the City.
Contributions
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The Developer will not be required to donate any land or money to the City, or any other
governmental body, except as otherwise expressly provided in the Annexation Agreement. Certain fees
per unit are enumerated in the Annexation Agreement. The Developer will be responsible for making
contributions to compensate the Yorkville Community School District #115 ( "School District ") and the
City Recreation Department ( "Recreation Department") for the estimated impact which is projected to be
experienced by the districts as a result of the development of the Autumn Creek Area.
School Contribution. The Developer will contribute 16.0 acres for school purposes and
$581,139.93 as a cash contribution.
Park Contribution. The Developer is required to contribute 6.94 acres of land to the City for park
purposes and $810,999 as a cash contribution. The Developer is required to construct certain park
improvements in the areas designates as park sites, including the installation of playground equipment
and park improvements. The sum of $300,000 of the $810,999 contributed shall be withheld by the
Developer, for the purposes of funding the construction of such park improvements.
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Autumn Creek Development Fees
The following development fees will be paid to the City by the Developer for each unit:
Public works ....... ............................... $ 700
Police.................. ............................... 300
Building .............. ............................... 150
Library................ ............................... 500
Parks & Recreation ............................ 50
Engineering ........ ............................... 100
Bristol/Kendall Fire ........................... 1.000
Total............... ...............................
PROPOSED DEVELOPMENT
The information provided in this section "PROPOSED DEVELOPMENT" has been included
because it may be considered relevant to an informed evaluation and analysis of the Bonds. No assurance
can be given that the development of the Project will occur as described below. As the development of
the Project progresses and Parcels improved with Single Family Homes and Townhomes are sold, it is
expected that the ownership of the land within the Autumn Creek Area will become substantially more
diversified. No assurance can be given, however, that the development of the Project will be completed
or that it will occur in a timely manner or in the configuration described herein. The Bonds and Special
Tax are not personal obligations of any land owners or the Developer. The Bonds are secured solely by
Special Tax and certain other amounts on deposit with the Trustee. See "SECURITY AND SOURCE OF
PAYMENT FOR THE BONDS." The Bonds will finance a portion of the construction and installation of
the Special Services necessary to support the development of the Project.
General
The Autumn Creek Area to be developed by the Developer is a subdivision of approximately 265
acres. In addition to the 317 Single Family Homes and 258 Townhomes, the Project will include 92 acres
of open space, ponds, prairie land, walking and bike paths, and a recreation park.
The Developer has a sales center at the property and has commenced sales activity for the Project.
As of the date hereof, the Developer has executed 17 contracts to sell 2 Single Family Homes and 15
Townhomes within the Autumn Creek Area.
The Developer contemplates construction of 5 or more model Single Family Homes and
Townhomes ranging in approximate size from 1,150 square feet to over 3,036 square feet. Buyers can
currently select from a number of different available floor plans each with a variety of distinct exterior
designs available, as well as a wide range of amenities. The following product types for Single Family
Homes and Townhomes are planned:
The Pinebrook Single- Family Home is a two -story home with three bedrooms, and 2-
1/2 baths. The home is 1,776 sq.ft. in size, and includes a two -car garage. Four distinct
elevation styles are available. The base price ranges from $247,990 to $257,190.
The Carrington Single- Family Home is a two -story home with four bedrooms, and 2-
1/2 baths. An optional plan with an extended kitchen/nook is provided. The home is
2,148 sq.ft. in size, and includes a two -car garage. Five distinct elevation styles are
available. The base price ranges from $263,990 to $283,290.
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The Dorchester Single- Family Home is a two -story home with four bedrooms, 2-1/2
baths, and a library. An optional plan with an extended family room is provided. The
home is 2,267 sq.ft. in size, and includes a two -car garage. Five distinct elevation styles
are available. The base price ranges from $266,990 to $287,699.
The Wilshire Single - Family Home is a two -story home with four bedrooms, 2 -1/2
baths, and a library. An optional plan with an extended family room is provided. The
home is 2,470 sq.ft. in size, and includes a two -car garage. Five distinct elevation styles
are available. The base price ranges from $277,990 to $296,990.
The Sterling Single - Family Home is a two -story home with four bedrooms, 2 -1/2
baths, and a library. An optional plan with an extended family room is provided. The
home is 2,474 sq.ft. in size, and includes a two -car garage. Five distinct elevation styles
are available. The base price ranges from $286,990 to $305,390.
The Rockport Single - Family Home is a two -story home with four bedrooms, 2 -1/2
baths, and a library. The home is 2,718 sq.ft. in size, and includes a, two -car garage.
Four distinct elevation styles are available. The base price ranges from $300,990 to
$321,590.
The Birmingham Single - Family Home is a two -story home with four bedrooms, and
2 -1/2 baths, and a library. Optional plans include an extended family room, and
additional full bath, or an in -law suite with an additional full bath. The home is 3,036
sq.ft. in size, and includes a two -car garage. Five distinct elevation styles are available.
The base price ranges from $313,990 to $334,990.
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The Alcott Townhome is a one -story townhome with two bedrooms, and one bath. An
optional plan with an additional bathroom and a powder room is provided. The
townhome is 1,150 sq.ft. in size, and includes a two -car garage. The base price is
$147,900.
The Bradbury Townhome is a two -story townhome with three bedrooms, and two
baths. An optional plan with a larger master bathroom is provided. The townhome is
1,574 sq.ft. in size, and includes a two -car garage. The base price is $181,990.
The Claiborne Townhome is a two -story townhome with two bedrooms, and two and
%Z baths. An optional plan with a patio is provided. The townhome is 1,370 sq.ft. in
size, and includes a two -car garage. The base price is $166,990.
The Darien Townhome is a two -story townhome with three bedrooms, and two and
baths. An optional plan with a patio is provided. The townhome is 1,520 in size, and
includes a two -car garage. The base price is $171,490.
The Ethan Townhome is a two -story townhome with three bedrooms, and two and
baths. An optional plan with a patio is provided. The townhome is 1,521 sq.ft. in size,
and includes a two -car garage. The base price is $177,990.
Water Facilities
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The City has agreed to provide the Autumn Creek Development with potable water for domestic
water consumption and fire flow protection and will maintain the water distribution system to and within
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the Autumn Creek Development. See "SUMMARY OF ANNEXATION AGREEMENT — Utilities and
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Public Improvements —Water Facilities."
Sanitary Sewers
Pursuant to the Annexation Agreement, the City has agreed to assist and cooperate with the
Developer in efforts to acquire adequate sanitary sewer treatment capacity from the Yorkville Bristol
Sanitary District ( "YBSD ") and to obtain adequate means of delivery of such sanitary sewer capacity to
the Autumn Creek Development, or, in the alternative, shall provide such means of delivery, subject to
the requirements of the YBSD.
The Developer has obtained the necessary off -site easement and has installed the sanitary
connection to the City's new lift station. YBSD has sufficient capacity to serve the Autumn Creek
Development.
Storm Water Facilities
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The Developer will provide for storm water drainage and retention/detention in the following
manner: (i) installation of underground sewers within that part of the Autumn Creek Area to be developed
and improved with buildings, structures, streets, driveways, and other locations which will be conveyed
and maintained by the City; and (ii) installation of graded, open swales or ditches and storm water
retention/detention areas as depicted on the preliminary engineering within that part of the Autumn Creek
Area designated on the preliminary engineering.
Sidewalks and Street Related Improvements
The Developer will install the curb, gutter, street pavement, street lights, recreational path and
public sidewalks in the Autumn Creek Area on a lot by lot or block by block basis. The City will take the
ownership and maintenance responsibility of the portions of the trail system/bike path located in the
public right of way.
Other Utilities
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The cable television franchise in this region is SBC. NICOR, SBC, and ComEd provide gas,
telephone, and electrical service, respectively, to the Autumn Creek Area.
Access
Main access for the Autumn Creek Area will be from Illinois State Route No. 34. Additional
access points to the Autumn Creek. Area will made from Kennedy Road, and through an existing
residential development to the west and through a planned residential development to the east.
Flood Plain/Wetlands
The development is not in a flood plain and will not impact any jurisdictional wetlands. All flood
plain and wetlands permits, if required, have been received.
Schools
Yorkville Community School District No. 115, with two grade schools serving grades K -2, an
intermediate school serving grades 3 -5, a middle school serving grades 6-8, and a high school serving
grades 9 -12, will serve the homes within the Autumn Creek Area. Each school offers a full academic
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program coupled with a variety of extra - curricular activities for students. The two grade schools are
located miles from the Project, the intermediate school is located miles from the Project, the
middle school is located miles from the Project, and the high school is located miles from the
Project.
The Developer
The Autumn Creek Area is owned and being developed by Pulte Home Corporation, a Michigan
corporation. Pulte Home Corporation is one of several operating subsidiaries of Pulte Diversified
Companies, Inc..( "PDCI" ), which (together with other companies) is a direct wholly owned subsidiary of
Pulte Homes, Inc. ( "PHI "), which is a publicly held holding company whose direct and indirect
subsidiaries engage in the homebuilding and financial services businesses. PHI is subject to the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and, in
accordance therewith, files reports and other information with the Securities and Exchange Commission
( "SEC "). Such reports and other information may be inspected and copied at the public reference
facilities maintained by the SEC at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549. Such reports and other information concerning PHI also may be inspected at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New York 10005, the securities exchange on
which certain of PHI's securities are listed. The SEC also maintains a website (httn: / /www.sec.Rov) that
contains reports and other information regarding PHI.
The Underwriter and the City make no representation or warranty, express or implied, as to the
accuracy or completeness of any information contained in this Limited Offering Memorandum about
Pulte Home Corporation or any of the information referred to above concerning PDCI or PHI. Neither
the Underwriter nor the City has investigated or independently verified any of the information contained
in this Limited Offering Memorandum about Pulte Home Corporation or any of the information referred
to above concerning PDCI or PHI (financial, legal or otherwise) and neither the Underwriter nor the City '
assume any responsibility for the accuracy or completeness thereof. In making an investment decision
with respect to the Bonds, prospective investors must rely on their own examination of Pulte Home
Corporation, PDCI, and PHI.
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Environmental Review
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Testing Service Corporation ( "TSC ") conducted a Phase 1 Environmental Site Assessment
( "ESA ") of the Area for the Developer dated January 16, 2004. Information available to TSC indicated
that the Area has been historically utilized for agricultural purposes. TSC identified three recognized
environmental conditions in connection with the area. The first dealt with past fueling of equipment on
the site; the second condition was in regards to vehicle maintenance and painting activities; the third
condition was related to the possibility of impacted soil/groundwater associated with dumping near the
creek.
On March 24 and 25, 2004, Bradburne, Briller & Johnson, LLC ( "BB &J ") conducted a Phase II
ESA for the areas identified in the Phase 1. As part of this investigation, soil borings were conducted in
certain patterns in areas of concern. In this report, dated March 31, 2004, BB &J suggested conducting
additional testing at the site where vehicle painting had taken place. Otherwise, the site was clear and did
not require additional investigation.
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BB &J performed additional geoprobe testing on July 16, 2004. In the report dated September 10,
2004, BB &J, recommended excavating an area of that may contain potentially contaminated soil. On
May 9, 2005, BB &J excavated an area approximately 34 ft. by 17 ft. by 4.5 ft. deep. BB &J performed
additional tests to confirm that the contaminated soil had been completely removed. In a letter dated May
11, 2005, BB &J confirmed the impacted soil had been removed.
THE CITY
The United City of Yorkville (the "City") was established in 1834, and has been the county seat
of Kendall County since 1859. It is located in northeastern Illinois on the Fox River approximately 45
miles southwest of Chicago. Nearby communities include Oswego, Bristol, Plano, Millbrook, Helmar,
Newark, Plattville, Montgomery, Sugar Grove and Plainfield. According to the 2000 Census, the City
had a population of 6,189. A special census was completed in December of 2003 resulting in a
population total of more than 8,500.
City Government and Services
The City follows a Mayor /City Council form of government in which the Mayor, Aldermen, City
Clerk and City Treasurer are each elected to a four -year term. The City Council is comprised of the
Mayor and eight Alderman (two Alderman elected from each of the City's four wards).
The City is served by the Bristol/Kendall Fire Protection District which carries a Protection Class
6. It maintains a 24 hour paramedics unit and is a member of the Mutual Aid Box Alarm System. The
Police Department employs twenty full -time officers, and emergency medical service is available 24
hours a day.
Transportation
The City is approximately 15 miles west of Interstate 55 (1 -55); almost 20 miles north of
Interstate 80 (1 -80); and nearly 12 miles south of Interstate 88 (I -88). Illinois Routes 47 and 34 intersect
j the City.
O'Hare International Airport is approximately 40 miles northeast of the City and Midway Airport
is about 40 miles to the east in Chicago. Aurora Municipal Airport, approximately ten miles to the north
provides lighted runways and aircraft tiedowns, hangar, power plant repair, air frame repair and navigator
aids. Additionally it offers freight, charter and helicopter services.
The Burlington Northern Santa Fe Railroad in nearby Aurora provides commuter rail service.
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Yorkville Public Library
Yorkville Public Library (the "Library") serves the residents of the City and is a member of the
Heritage Trail Library System. The Library began as a "Reading Room" in the 1800's and was actively
used by the Yorkville Women's Club who in 1915 formally established it as a library. In 1965, the
Library was turned over to the City of Yorkville. Over the years, it has occupied three locations and has
had its growth funded through state programs, monetary gifts from businesses as well as individuals, and
volunteer labor. It has recently undergone improvements' with the addition of a CD -ROM full -text
magazine index, and a referendum was passed in 2004 to authorize the sale of not to exceed $8.75 million
of bonds to expand the facility. As part of that authorization, $7.25 million of bonds were sold in July,
2005.
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In addition to its extensive collection of books, Library resources include dial -a -story, local
history, newspapers, sheet music, audio books, large print books, paperbacks, magazines, and videos and
DVD's. Services available to the community are homebound service, interlibrary loan, kit for brothers
and sisters of new babies, kits for sick kids, loft meeting area, photocopier, computers, tax forms, talking
books, typewriter and voter registration. The Library offers the following online resources: animals and
the environment; arts and crafts; children's book and screen characters; children's books and stories
online; educational resources; exploration and museums; history and geography; holidays and
celebrations; literature online; math and science; music and poetry; reference tools and homework help;
space; and sports and recreation.
Community Life
The City contains approximately 60 acres of parks with picnic areas, a gazebo and recreational
fields. Programs offered include aerobics, basketball, bus trips, bowling, Country/Western dance, crafts,
dance, fishing, golf, soccer, sports club, street hockey, tee ball, tennis and tumbling. Residents also enjoy
a golf course and forest preserves which are nearby but outside the City boundaries.
Medical services are available at Rush/Copley Medical Center and Provena -Mercy Center, both
located in Aurora. Additional facilities are rovided b Sandwich Community Hospital in Sandwich,
P Y
Illinois. These institutions are about fifteen miles from the City.
Education
Community Unit School District Number 115 (the "District ") meets the elementary and
secondary educational requirements of the City with two elementary schools, one junior high school and j
one high school. The District has a staff of approximately 200 teachers and administrators and
approximately 3,200 students. The District has implemented a new computer curriculum, innovative
interdisciplinary projects and advanced team building and support programs for students and staff.
Higher education opportunities are offered by Aurora University in nearby Aurora and Northern Illinois
University in DeKalb.
In addition, Waubonsee Community College District No. 516 (the "College ") offers a wide
variety of transfer, vocational, continuing and community education, children's and corporate
development and training classes. It has 24 programs designed for transfer to senior institutions, and also
offers occupational- oriented programs ranging in length from one semester to two years. The College
recently opened a state -of -the -art academic computing center that houses eight classrooms and a 120
personal computer work station open lab.
Socioeconomic Information
Following are lists of large employers located in the City and in the surrounding area.
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Major City Employers /)
Approximate
Name Product/Service Emnlovment
Amurol Confections Co. Sugar Confections, Bubble Gum, & 500
Candy
Newly Weds Foods Food Seasonings, Cures and Binders 115
Brenart Eye Clinic Eyeglasses 50
Cascade Water Works Mfg. Co., Inc. Sewer & Piping Systems Repair 40
Products
C.J. Insulation, Inc. Insulation Installation 40
Bristol Equipment Company Fluid Sampling Valves, Tank Car 25
Automatic Cleaners
G.H. Haws & Assocs. Plastic Molding Parts 25
Alpha Precision, Inc. Photographic Equipment & Supplies 20
Waste Technology, Inc. Environmental Investigators 20
Note: Source: 2005 Illinois Manufacturers Directory, 2005 Illinois Services Directory and a selective
telephone survey.
Major Area EmployersN
Approximate
Location Name Product/Service Emnlovment
Sugar Grove Harper -Wyman Co., Thermostatic Controls & Gas 1,400
Appliance Control Group Combustion Products
Sugar Grove Waubonsee Community Education 750
College #516
Montgomery Lyon Metal Products Steel Storage Equipment 600
Oswego Chicago Bridge & Iron Engineering & Technical Center 450
Company
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Montgomery Eby -Brown Co. Wholesale Tobacco & 400
Confectionery
Montgomery The Dial Corp. Soap, Glycerin, & Fatty Acids 400
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Plainfield CBI Insulation Betterment Storage Tank Insulation 300
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Equipment
Plano Plano Molding Co. Plastic Injection Molding 300
Headquarters
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Montgomery Processed Plastic Co. Plastic Toys 300
Plainfield Fox Valley Press Newspaper Printing 230
Oswego Computype Bar Coding Solutions & Products 201
Montgomery Fox River Foods Inc. Wholesale Food 200
Montgomery General American Door Co. Garage Doors 200
Sugar Grove Oak Grigsby, Inc. Electronic Switches 200
Plainfield R.A. Bright Construction, Concrete, Excavating, 200
Inc. Underground Utilities
Note: Source: 2005 Illinois Manufacturers Directory, 2005 Illinois Services Directory and a selective
telephone survey.
The following tables show employment by industry and by occupation for the City, Kendall
County (the "County ") and the State of Illinois (the "State ") as reported by the 2000 Census.
Employment By Industry
The Citv Kendall Countv State of Illinois
Classification Number Percent Number Percent Number Percent
Agriculture, Forestry, Fishing, Hunting, 47 1.45% 380 1.32% 66,481 1.14%
and Mining
Construction 332 10.23% 2,586 8.97% 334,176 5.73%
Manufacturing 564 17.38% 5,337 18.50% 931,162 15.96%
Wholesale Trade 145 4.47% 1,187 4.12% 222,990 3.82%
Retail Trade 434 13.37% 3,416 11.84% 643,472 11.03%
Transportation and Warehousing, and 201 6.19% 1,657 5.75% 352,193 6.04%
Utilities
Information 67 2.06% 774 2.68% 172,629 2.96%
Finance, Insurance, Real Estate, 216 6.65% 2,463 8.54% 462,169 7.92%
and Rental and Leasing
Professional, Scientific, Management, 287 8.84% 2,369 8.21% 590,913 10.13%
Administrative, and Waste Management
Services
Educational, Health and Social Services 443 13.65% 4,691 16.26% 1,131,987 19.41%
Entertainment and Recreation Services, 244 7.52% 1,740 6.03% 417,406 7.16%
Accommodation and Food Services
Other Services (except Public 118 3.64% 1,246 4.32% 275,901 4.73%
Administration)
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Public Administration 148 4.56% 996 3.45% 231.706 3.97%
Total 3,246 100.00% 28,842 100.00% 5,833,185 100.00%
Note: Source: U. S. Bureau of the Census.
Employment By Occupation(!)
The City Kendall Count State of Illinois
Classification Number Percent Number Percent Number Percent
Management and Professional 1,140 35.12% 9,817 34.04% 1,993,671 34.18%
Service Occupations 416 12.82% 3,216 11.15% 813,479 13.95%
Sales and Office Occupations 858 26.43% 8,310 28.81% 1,609,939 27.60%
Farming, Forestry and Fishing 0 0.00% 66 0.23% 17,862 0.31%
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Construction, Extraction, and 300 9.24% 2,997 10.39% 480,418 8.24%
Maintenance
Production,Transportation, and 532 16.39% 4,436 15.38% 917.816 15.73%
Material Moving
Total 3,246 100.00% 28,842 100.00% 5,833,185 100.00%
i Note: Source: U.S. Bureau of the Census.
Annual Average Unemployment Rates
Calendar Year The Citv Kendall Countv State of Illinois
1996 5.9% 3.9% 5.3%
1997 4.7% 3.1% 4.7%
1998 4.3% 2.9% 4.5%
1999 4.1% 2.8% 4.3%
2000 4.1% 2.8% 4.4%
2001 5.9% 4.0% 5.4%
2002 8.2% 5.6% 7.1%
2003 8.9% 6.0% 6.7%
2004 N/A 5.0% 6.2%
2005 N/A 5.0% 5.7%
Notes: Illinois Department of Employment Security.
(2) Preliminary rates for the month of August 2005.
Housing
The 2000 Census reported that the median value of the City's owner - occupied homes was
$157,700, which compares with $154,900 for the County and $130,800 for the State. The 2000 market
value of specified owner - occupied units for the City, the County and the State was as follows:
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Specified Owner - Occupied Units
The City Kendall Countv State of Illinois
Classification Number Percent Number Percent Number Percent
Less than $50,000 0 0.00% 93 0.65% 230,049 9.31%
$50,000 to $99,999 150 9.35% 1,137 7.90% 651,605 26.38%
$100,000 to $149,999 520 32.40% 5,485 38.12% 583,409 23.62%
$150,000 to $199,999 657 40.93% 4,168 28.97% 429,311 17.38%
$200,000 to $299,999 260 16.20% 2,873 19.97% 344,651 13.95%
$300,000 to $499,999 18 1.12% 492 3.42% 163,254 6.61%
$500,000 to $999,999 0 0.00% 128 0.89% 55,673 2.25%
$1,000,000 or more 0 0.00% 12 0.08% 12.386 0.50%
Total 1,605 100.00% 14,388 100.00% 2,470,338 100.00%
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Note: cn Source: U.S. Bureau of the Census.
Income
Per Capita Personal Income
for the Ten Highest Income Counties in the StateN
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Rank 2000
1 Lake County $32,102
2 DuPage County 31,315
3 McHenry County 26,476
4 Kendall County 25,188
5 Will County 24,613
6 Kane County 24,315
7 Cook County 23,227
8 Sangamon County 23,173
9 Monroe County 22,954
10 Grundy County 22,591
Note: Source: U.S. Bureau of the Census.
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The following shows a ranking of median family income for the Chicago metropolitan area
among 102 Illinois counties from the 2000 Census.
Ranking of Median Family Income /)
Family
CountV[11, Income Ranklll.,
DuPage County $79,314 1
Lake County 76,424 2
McHenry County 71,553 3
Will County 69,608 4
Kendall County 69,383 5
Kane County 66,558 6
Cook County 53,784 14
Note: Source: U.S. Bureau of the Census.
According to the 2000 Census, the City had a median family income of $67,521. This compares
to $69,383 for the County and $55,545 for the State. The following table represents the distribution of
family incomes for the City, the County and the State at the time of the 2000 Census.
Median Family Income(])
The City Kendall County State of Illinois
Classification Number Percent Number Percent Number Percent
Under $10,000 7 0.42% 117 0.78% 156,205 5.00%
$10,000 to $14,999 0 0.00% 169 1.13% 105,747 3.38%
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$15,000 to $24,999 79 4.79% 609 4.07% 273,712 8.76%
$25,000 to $34,999 131 7.94% 966 6.45% 331,907 10.62%
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$35,000 to $49,999 284 17.21% 2,226 14.86% 506,429 16.20%
$50,000 to $74,999 536 32.48% 4,492 29.99% 736,897 23.58%
$75,000 to $99,999 328 19.88% 3,215 21.46% 445,390 14.25%
$100,000 to $149,999 206 12.48% 2,372 15.84% 356,068 11.39%
$150,000 to $199,999 35 2.12% 506 3.38% 101,955 3.26%
$200,000 or more 44 2.67% 306 2.04% 111.008 3.55%
Total 1,650 100.00% 14,978 100.00% 3,125,318 100.00%
Note: Source: U.S. Bureau of the Census.
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According to the 2000 Census, the City had a median household income of $60,391. This
compares to $64,625 for the County and $46,590 for the State. The following table represents the
distribution of household incomes for the City, the County and the State at the time of the 2000 Census.
Median Household Income
The Citv Kendall County State of Illinois
Classificati6n Number Percent Number Percent Number Percent
Under $10,000 70 3.10% 435 2.32% 383,299 8.35%
$10,000 to $14,999 54 2.39% 378 2.01% 252,485 5.50%
$15,000 to $24,999 175 7.76% 1,308 6.96% 517,812 11.27%
$25,000 to $34,999 193 8.55% 1,553 - 8.27% 545,962 11.89%
$35,000 to $49,999 652 29.90% 5,234 27.86% 952,940 20.75%
$50,000 to $74,999 536 32.48% 4,492 29.99% 745,180 23.58%
$75,000 to $99,999 382 16.93% 3,635 19.35% 531,760 11.58%
$100,000 to $149,999 246 10.90% 2,567 13.66% 415,348 9.04%
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$150,000 to $199,999 35 1.55% 563 3.00% 119,056 2.59%
$200,000 or more 44 1.95% 345 1.84% 128.898 2.81%
Total 2,256 100.00% 18,789 100.00% 4,592,740 100.00%
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Note: (0 Source: U.S. Bureau of the Census.
Wealth Indicators
The private publication "Sales & Marketing Management" has developed a wealth indicator
termed "effective buying income" (EBI) defined as money income less personal tax and non -tax
payments, which is considered by the publication to be a bulk measurement of market potential. At
December 31, 2003 (the latest data available), the County reportedly had a total EBI of $1,449,038,000
and a median household EBI of $55,290. The trend in median household EBI relative to the State and
Kendall County, is shown below. Data for the City is not available.
Effective Buying Income
2000 2001 2002 2003 2004
Kendall County $53,508 $52,516 $55,183 $55,290 $55,275
State of Illinois 45,381 41.976 40,780 41,216 42,182
County as Percent of State 117.91% 125.11% 135.32% 134.15% 131.04%
2004 Total EBI $1,603,723,000
Note: Source: "Sales & Marketing Management".
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Retail Activity
Following is a summary of the City's sales tax receipts as collected and disbursed by the State.
Retailers' Occupation, Service Occupation and Use Tax
State Fiscal Year State Sales Tax Annual Percent
Endine June 30 Distributions (2) Chanc + ( -1
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1995 $ 443,140 7.77%
1996 472,289 6.58%
1997 453,818 (3.91 %)
1998 850,072 87.32%
1999 936,217 10.13%
2000 1,024,813 9.46%
2001 1,003,021 (2.13 %)
2002 1,203,279 19.98%
2003 1,558,831 29.55%
2004 1,982,218 27.16%
2005 2,320,546 17.07%
Growth from 1996 to 2005 423.66%
Notes: Source: Illinois Department of Revenue.
(2) Tax distributions are based on records of the Illinois Department of
Revenue relating to the 1% municipal portion of the Retailers' Occupation,
Service Occupation and Use Tax, collected on behalf of the City, less a
State administration fee. The municipal 1% includes tax receipts from the
sale of food and drugs which are not taxed by the State.
(3) The 1996percentage is based on a 1995 sales tax of $443,140.
THE SPECIAL SERVICE AREA AND SPECIAL TAX
The Special Service Area Act
Section 7(6) of Article VII of the Illinois Constitution of 1970 permits a non -home rule unit to
levy or impose additional taxes upon areas within its boundaries to provide special services to those areas
and to pay debt incurred in order to provide those special services in the manner provided by law. Such
areas are established pursuant to the provisions of the Special Service Area Act. Under the Special
Service Area Act, the Corporate Authorities of the municipality within which the special service area lies
constitute the governing body of such special service area.
The Special Service Area Act provides that bonds may be issued to provide for the special
services. Such bonds do not constitute indebtedness of the municipality in which the special service area
is situated for the purpose of any limitation imposed by any law. Such bonds shall be retired by a tax
which may be either an ad valorem property tax, a special tax, or a combination of an ad valorem property
and a special tax. A special tax may be levied or imposed on any basis that provides a rational
relationship between the amount of special tax levied or imposed against each lot or parcel within the
special service area and the special service benefit conferred. The Special Service Area Act further
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provides that the lien and foreclosure remedies provided in Article 9 of the Illinois Municipal Code shall
apply on non - payment of any special tax.
The Special Service Area Act contains a provision that allows residents of a special service area
to petition the circuit court having jurisdiction to disconnect territory from the special service area if,
among other things, such territory was not, is not, and is not intended by the corporate authorities which
created the special service area to be benefited or served by services then existing or authorized, and that
such territory constitutes less than 1 1/2% of the special service area's total equalized assessed valuation.
The Developer and the City have represented that no parcel within the Autumn Creek Area meets this
test.
Establishment of the Area
Pursuant to the Special Service Area Act, the Corporate Authorities of the City adopted
Ordinance No. 2005 -101 on December 27, 2005, proposing to establish the Autumn Creek Area.
Pursuant to notice given by publication at least once not less than 15 days prior to the hearing, and
pursuant to notice by mail to each person in whose name general taxes for the 'last proceeding year were
paid on each parcel of land within the Autumn Creek Area, a public hearing was held on January 24,
2006, to further consider establishment of the Autumn Creek Area. On the City
Council adopted Ordinance No. (the "Establishing Ordinance "), which established the
Autumn Creek Area to provide certain special services, and authorized the City to levy and collect
Special Taxes in the manner set forth in the Special Tax Report, to pay principal of and interest on the
bonds secured by the Special Taxes. in an aggregate principal amount not to exceed $15,500,000 to be
retired over a period not to exceed 30 years at an interest rate not to exceed 9% per annum or 125% of the
rate for the most recent date shown in the 20 G.O. Bonds Index of average municipal bond yields as
published in the most recent edition of the Bond Buyer published in New York, New York at the time the ,
contract is made for sale of the Bonds and the Bonds shall mature within not more than thirty (30) years
from their issue date; the proceeds of the sale of the Bonds would be used to (a) construct such Special
Services; and (b) to pay administrative expenses. Pursuant to the Special Service Area Act, if a petition
signed by at least 51% of the electors residing within the Autumn Creek Area and by at least 51% of the
owners of record of land included within the boundaries of the Autumn Creek Area is filed with the
municipal clerk within 60 days following the final adjournment of the public hearing objecting to the
creation of the Autumn Creek Area, the issuance of the Bonds or the provision of the Special Services,
then the Autumn Creek Area may not be created. Owners of the property have waived their right to file
an objection petition pursuant to the Special Service Autumn Creek Area Act. The City has caused the
Declaration of Consent and the Establishing Ordinance to be recorded in the Office of the Recorder of
Deeds of Kendall County.
Levy, Abatement and Collection of Special Tax
In Illinois, property taxes levied in one year become payable during the following year as
provided in said levy. See "SECURITY AND SOURCE OF PAYMENT FOR THE BONDS —Tax
Assessment, Collection and Representative Property Taxes." Pursuant to the Bond Ordinance the City
has levied the Maximum Parcel Special Tax for all parcels within the Autumn Creek Area. Pursuant to
the Indenture and the Special Tax Report, the City has covenanted that prior to the last Tuesday of
December of each year the City Council of the City shall determine the Special Tax Requirement due as
provided in the Special Tax Report, taking into account other amounts that may be available to pay
principal of and interest on the Bonds and administrative expenses, to amend the Special Tax Roll
pursuant to the Special Tax Report and shall, by ordinance, approve the amount of the Special Tax
Requirement and direct the County Clerk of Kendall County to extend the Special Tax for collection on
the tax books in the amounts so determined pursuant to the Special Tax Report against all parcels of
I
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taxable properly in the Autumn Creek Area. The Kendall County Clerk must receive the Special Tax Roll
by the last Tuesday in December. The Kendall County Clerk intends, to the extent possible, to
incorporate the Special Tax bill into the regular ad valorem property tax bill which will be payable in two
equal installments. The first installment is payable in June and the second installment is payable in
September. The Special Tax levied by the Bond Ordinance shall be abated each year to the extent the
taxes levied pursuant to such Bond Ordinance exceed the Special Tax Requirement as calculated by the
City.
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At the end of each collection year, the Kendall County Treasurer applies to the Circuit Court of
Kendall County, for a judgment for all unpaid taxes. The Circuit Court of Kendall County order resulting
from that application for judgment provides for a sale of all property with unpaid taxes. A public sale is
held, at which time successful bidders pay the unpaid taxes plus penalties. The annual tax sale is usually
held during October in Kendall County. Unpaid taxes accrue penalties at the rate of 1 -1/2% per month
from their due date until the date of sale. Taxpayers can redeem their property by paying the purchaser of
the property at the tax sale the amount paid at the sale, plus a penalty. If redemption does not occur
within two and one half years and certain procedural requirements are met, the purchaser of the property
at the tax sale can receive a deed to the property which has been sold for delinquent taxes. In addition, a
municipality may seek enforcement of unpaid Special Tax through foreclosure proceedings by seeking in
a court an adjudication of the existence of a lien and a finding of a failure to pay Special Tax when due.
Upon making such a finding, a court having jurisdiction would enter a foreclosure decree authorizing the
sale of the property subject to the lien of the Special Tax. See "SECURITY AND SOURCE OF
PAYMENT FOR THE BONDS — Enforcement of Payment of Special Tax" herein.
Special Service Area Special Tax Roll and Report
The following description of the Special Service Area Special Tax Roll and Report ( "Special Tax
Report") prepared by David Taussig & Associates, Inc., Newport Beach, California (the "Consultant "),
Special Tax Consultant, is qualified in its entirety by reference to the complete form of the Special Tax
Report set forth in Appendix B hereto. Capitalized terms used in this section but not deemed shall have
the meaning given to such terms in the Special Tax Report.
The Special Tax Report sets forth the provisions for apportioning and levying the Special Tax in
the Autumn Creek Area. The Special Tax will be levied_ in the Autumn Creek Area for each calendar year
from 2007 to 2034 and will be collected each calendar year from 2008 to 2035. The amount of Special
Tax levied pursuant to the Special Tax Report has been calculated to pay the actual or reasonably
estimated costs directly related to the administration of the Autumn Creek Area, debt service on the
Bonds, reasonably anticipated delinquent Special Taxes, any amount required to replenish the Reserve
Fund, the costs of credit enhancement and fees for instruments that serve as the basis of the Reserve Fund
in lieu of cash, less available funds as directed under the Indenture.
The Maximum Parcel Special Tax to be levied by the City within the Autumn Creek Area in 2007
will be $ , and will increase each year thereafter by % per year. The actual
percentage annual change in the Special Tax may be greater depending upon actual Special Tax receipts,
capitalized interest, investment earnings, and administrative expenses.
The Maximum Parcel Special Tax for any Parcel may be prepaid and the obligation of the Parcel
to pay the Maximum Parcel Special Tax may be permanently satisfied if there are no delinquent Special
Taxes with respect to such Parcel at the time of prepayment. The Maximum Parcel Special Tax may also
be prepaid in part, provided that proceeds for any such prepayment are sufficient to permit the redemption
of Bonds in such amounts and maturities deemed necessary by the Consultant and in accordance with the
Indenture.
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An owner of a Parcel intending to prepay the Maximum Parcel Special Tax, either partially or in
full, shall provide the City with written notice of intent to prepay. Within 30 days of receipt of such
written notice, the City or its designee shall notify such owner of the amount of the Special Tax Bond
Prepayment for such Parcel and the date through which the amount shall be valid.
The Special Tax Bond Prepayment for a Parcel is the amount equal to (a) the sum of
(1) Principal, (2) Premium, (3) Defeasance, and (4) Fees and (b) minus (1) the Reserve Fund Credit and
(2) the Capitalized Interest Credit. The terms "Principal," "Premium," " Defeasance," "Fees," "Reserve
Fund Credit" and "Capitalized Interest Credit" have the following meanings:
"Principal" means the principal amount of Bonds to be redeemed and equals the quotient derived
by dividing (a) the then current Maximum Parcel Special Tax for the Parcel intending to prepay by
(b) the corresponding Maximum Parcel Special Taxes for the Autumn Creek Area (and excluding
that portion of the Maximum Parcel Special Tax for any Parcel(s) that has been prepaid), and
multiplying the quotient by the principal amount of outstanding Bonds.
"Premium" means an amount equal to the Principal multiplied by the applicable redemption
premium, if any, for any Bonds so redeemed with the proceeds of any such prepayment. Any
applicable redemption premium shall be as set forth in the Indenture.
i
" Defeasance" means the amount needed to pay interest on the Principal to be redeemed until the
earliest redemption date for the outstanding Bonds less any Special Taxes heretofore paid for such
Parcel and available to pay interest on the redemption date for the Bonds.
"Fees" equal the expenses of the Autumn Creek Area associated with the Special Tax Bond
Prepayment as calculated by the City or its designee and include' but are not limited to, the costs
of computing the Special Tax Bond Prepayment, the costs of redeeming the Bonds, and the costs
of recording and publishing any notices to evidence the Special Tax Bond Prepayment and the
redemption of Bonds.
"Reserve Fund Credit" shall equal the lesser of the Reserve Fund Requirement and the balance in
the Reserve Fund multiplied by the quotient used to calculate Principal.
"Capitalized Interest Credit" shall equal the reduction in interest payable on the Bonds due to the
redemption of Principal from the Special Tax Bond Prepayment from the redemption date for the
Bonds redeemed from the Special Tax Bond Prepayment to the end of the capitalized interest
period, as determined by the Consultant. No capitalized interest credit is given if the redemption
date for Bonds redeemed from the Special Tax Bond Prepayment is after the capitalized interest
period.
The amount of any partial Special Tax Bond Prepayment will be computed pursuant to the
preceding prepayment formula substituting the portion of the Maximum Parcel Special Tax to be prepaid
for the Maximum Parcel Special Tax when computing Principal. The amount of any Special Tax Bond
Prepayment or partial Special Tax Bond Prepayment may not exceed the Bonds plus any Premium,
Defeasance, and Fees.
The sum of the amounts calculated above will be paid to the City, deposited with Trustee, and
used to pay and redeem Bonds in accordance with the Indenture and to pay the Fees associated with the
Special Tax Bond Prepayment. Upon the payment of the Special Tax Bond Prepayment amount to the
City, the obligation to pay the portion of the Maximum Parcel Special Tax which is prepaid for such
Parcel shall be deemed to be permanently satisfied.
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If at any time the Consultant determines that there has been or will be a reduction in the
Maximum Parcel Special Taxes as a result of an amendment to the final plat for the Autumn Creek Area,
or other event which reduces the Maximum Parcel Special Taxes, such that the annual debt service
coverage ratio for the Bonds is less than one hundred ten percent (110 %), then a Mandatory Special Tax
Prepayment shall be calculated. Each year's annual debt service coverage ratio shall be determined by
dividing (i) such year's reduced Maximum Parcel Special Taxes by (ii) the sum of the corresponding
annual interest and principal payments on the Bonds, plus estimated administrative expenses and less
estimated earnings on the Reserve Fund. As required under the Indenture, the City may adopt a
supplemental ordinance to provide for the levy of the Mandatory Special Tax Prepayment.
Any Mandatory Special Tax Prepayment will be calculated using the prepayment formula
described above with the following modifications: (i) the difference between the Maximum Parcel Special
Taxes required for 110% debt service coverage and the amount to which the Maximum Parcel Special
Taxes have been reduced shall serve as the numerator when computing Principal, and (ii) the Maximum
Parcel Special Taxes necessary for the annual debt service coverage ratio to equal 110% shall serve as the
denominator when computing Principal.
The amount of any Mandatory Special Tax Prepayment may not exceed the Bonds plus any
Premium, Defeasance, and Fees.
See "TIE BONDS — Optional Prepayment of Special Tax" and "— Mandatory Prepayment of
Special Tax."
The following table sets forth certain information concerning the Special Tax, including the
aggregate Maximum Special Tax to be levied in 2007 through 2034 and the Maximum Parcel Special Tax
which has been levied pursuant to the Bond Ordinance:
' I
Maximum Special Tax for Levy Years 2007 - 2034*
Collection Maximum Special Tax per Maximum Special Tax per
Lew Year Year Single Familv Detached Townhome Total
100%
2007 2008 2,000.00 1,800.00 1,098,400
2008 2009 2,030.00 1,827.00 1,114,876
2009 2010 2,060.00 1,854.00 1,131,352
2010 2011 2,091.00 1,882.00 1,148,403
2011 2012 2,122.00 1,910.00 1,165,454
2012 2013 2,154.00 1,939.00 1,183,080
2013 2014 2,186.00 1,968.00 1,200,706
2014 2015 2,219.00 1,998.00 1,218,907
2015 2016 2,252.00 2,028.00 1,237,108
2016 2017 2,286.00 2,058.00 1,255,626
2017 2018 2,320.00 2,089.00 1,274,402
2018 2019 2,355.00 2,120.00 1,293,495
2019 2020 2,390.00 2,152.00 1,312,846
2020 2021 2,426.00 2,184.00 1,332,514
" Preliminary and subject to change.
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2021 2022 2,462.00 2,217.00 1,352,440
2022 2023 2,499.00 2,250.00 1,372,683
2023 2024 2,536.00 2,284.00 1,393,184
2024 2025 2,574.00 2,318.00 1,414,002
2025 2026 2,613.00 2,353.00 1,435,395
2026 2027 2,652.00 2,388.00 1,456,788
2027 2028 2,692.00 2,424.00 1,478,756
2028 2029 2,732.00 2,460.00 1,500,724
2029 2030 2,773.00 2,497.00 1,523,267
2030 2031 2,815.00 2,534.00 1,546,127
2031 2032 2,857.00 2,572.00 1,569,245
2032 2033 2,900.00 2,611.00 1,592,938
2033 2034 2,944.00 2,650.00 1,616,948
2034 2035 2,988.00 2,690.00 1,641,216
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Administrative Services
David Taussig & Associates, Inc. (the "Administrator ") will provide administrative services for
the Special Service Area for the City pursuant to an Administrative Services Agreement. The
Administrator prepared the Special Tax Report. Under the Administrative Services Agreement, the
Administrator will (i) maintain a Parcel database necessary to extend, bill and collect the Special Taxes,
(ii) calculate the amount of Special Tax to be abated for the Autumn Creek Area, (iii) prepare an annual
report for the Autumn Creek Area, (iv) facilitate billing of the Special Tax, (v) monitor tax receipts and
collections, (vi) track Special Tax prepayment amounts, (vii) field taxpayer inquiries, (viii) monitor sales
practices and disclosure materials, and (ix) calculate any rebate on the Bonds.
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RISK FACTORS
Investment in the Bonds involves risks which may not be appropriate for certain investors. The
following is a discussion of certain risk factors which should be considered, in addition to other matters
set forth in this Limited Offering Memorandum, in evaluating the Bonds which are not rated by a
recognized rating agency. This discussion does not purport to be comprehensive or definitive. The
occurrence of one or more of the events discussed herein could adversely affect the ability or willingness
of property owners in the Autumn Creek Area to pay their Special Tax when due. Such failures to pay
Special Tax could result in the inability of the Autumn Creek Area to make full and punctual payments of
debt service on the Bonds. In addition, the occurrence of one or more of the events discussed herein
could adversely affect the value of the property in the Autumn Creek Area.
Limited Source of Funds
The Bonds, together with the interest thereon, are limited obligations of the City, payable solely
from the Special Tax and the amounts on deposit in the various funds and accounts established and
maintained under the Indenture, all as more fully set forth therein. The Bonds are not general obligations
of the City, Pulte Home Corporation, PDCI or PHI and do not constitute an indebtedness of the City
within the meaning of any constitutional or statutory limitation. No holder of the Bonds, Pulte Home
Corporation, PDCI or PHI shall have the right to compel the exercise of any taxing power of the City for
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payment of principal thereof or interest or premium, if any, thereon (other than the levy of the Special Tax
as provided in the Bond Ordinance and the Indenture). See "SECURITY AND SOURCE OF
PAYMENT FOR THE BONDS — General" herein.
Concentration of Ownership
All of the land within the Autumn Creek Area is currently owned by the Developer. The
Developer currently intends to develop the land within the Autumn Creek Area as described in this
j Limited Offering Memorandum. There are expected to be subsequent transfers of ownership of the
property within the Autumn Creek Area prior to completion of the Project. However, any number of
factors, including an increase in interest rates, may result in slower sales of property in the Autumn Creek
Area by the Developer.
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Until transfers to homeowners occur, the timely payment of the Bonds depends on the willingness
and ability of the Developer or the then current owner to pay the Special Tax when due. The Developer
has a limited source of funds and, if the Developer doesn't acquire all of the land in the Autumn Creek
Area, the then current owner may be limited in its source of funds. A failure'to make payments when due
could result in the rapid, total depletion of the Reserve Fund prior to replenishment from the resale of
property upon a foreclosure or otherwise. In that event, there could be a default in payments of the
principal of, and interest on, the Bonds. See "PROPOSED DEVELOPMENT —the Developer" above
and "RISK FACTORS — Potential Delay and Limitations in Foreclosure Proceedings" below.
Information Not Verified
Information concerning the Autumn Creek Area and the proposed development has been obtained
from the City, the Developer and other sources believed to be reliable, but much of that information
involves predictions of future events, such as sales and ability of homeowners and other property owners
to pay their share of the Special Tax; such information is, by its nature, not subject to verification.
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Failure to Develop Properties
Development of land is subject to economic considerations affecting the Developer and
prospective purchasers of developed property including interest rates and the general economic climate of
the region surrounding the Autumn Creek Area. The failure to complete development of the required
infrastructure or substantial delays in the completion of the Project due to litigation, the inability to obtain
required funding, the inability to sell homes or other causes may reduce the value of the property within
the Autumn Creek Area and increase the length of time during which Special Tax will be payable by the
Developer as owner of taxable property within the Autumn Creek Area. Such failure or delay may affect
the willingness and ability of the owners of property within the Autumn Creek Area to pay the Special
Tax when due. Bondowners should assume that any event that significantly impinges on the ability to
develop the Autumn Creek Area would cause the property values within the Autumn Creek Area to
decrease substantially from those estimated by the Appraiser and could affect the willingness and ability
of the owners of land within the Autumn Creek Area to pay the Special Tax when due. See "SECURITY
AND SOURCE OF PAYMENT FOR THE BONDS — Market Absorption Study" and "PROPOSED
DEVELOPMENT." The City may terminate the Public Infrastructure Agreement if the Developer does
not comply with its terms and provisions. There can be no assurance that the Developer will comply with
the terms of the Public Infrastructure Agreement or that the City will not terminate such agreement if the
Developer fails to comply with its terms. See "SUMMARY OF THE PUBLIC INFRASTRUCTURE
AGREEMENT."
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Failure to Achieve Market Projections
The Market Absorption Study has reached certain conclusions, based upon market trends and the
perceived demand for housing in the United City of Yorkville area. While the Market Consultant
believes the assumptions with respect to historical market conditions are accurate, there can be no
assurances that such a level of Single Family Home or Townhome absorption can be obtained in the
Project. Failure to achieve these market projections will adversely affect the estimated value of the
Parcels, could impair the economic viability of the Project and could reduce the ability or desire of the
property owners to pay the Special Tax. In that event, there could be a default in the payment of principal
of, and interest on, the Bonds. See "PROPOSED DEVELOPMENT." It should not be assumed that the
absorption of Single Family Homes or Townhomes will occur as estimated and prospective purchasers
j should review the Market Absorption Study in its entirety in order to make an informed decision whether
to purchase the Bonds. See "APPENDIX A —Market Absorption Study." .
Appraised Values
The Appraiser has estimated the value of all property in the Autumn Creek Area on the basis of
certain assumptions and limiting conditions contained in the Appraisal, including the assumed completion
of the Project. See "SECURITY AND SOURCE OF PAYMENT FOR THE BONDS — Summary of
Appraisal' and "APPENDIX D— Appraisal." The City makes no representation as to the accuracy of the
Summary of Appraisal.
The Appraisal assumes that the Bonds will be issued for the purpose of constructing the Special
Services and that development will occur as outlined therein. There can be no assurance that the
construction of the Special Services will be completed in a timely manner or that they will be completed
at all. The Appraisal does not specifically address any possible negative impact which could occur by
reason of failure to timely complete the Special Services, any future litigation, the obtaining of future
permits or approvals or other similar situations.
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It should not be assumed that the land within the Autumn Creek Area could be sold for the
appraised amount described herein at a foreclosure sale for delinquent Special Tax. See "SECURITY
AND SOURCE OF PAYMENT FOR THE BONDS — Summary of Appraisal' and "APPENDIX D—
Appraisal."
Development within the Autumn Creek Area is contingent upon the construction and acquisition
of the Special Services as well as the necessary local improvements. A slow down or stoppage of the
development process could adversely affect land values and reduce the ability or desire of property
owners to pay the Special Tax. In that event, there could be a default in the payment of principal of, and
interest on, the Bonds. See "RISK FACTORS — Failure to Develop Properties"
Local, State and Federal Land Use Regulations
There can be no assurance that land development operations within the Autumn Creek Area will
not be adversely affected by future government policies, including, but not limited to, governmental
policies which directly or indirectly restrict or control development. The Public Infrastructure Agreement
cannot limit the application of state or federal laws and regulations which have preemptive effect on local
land use regulations. During the past several years, state and federal regulatory agencies have
significantly expanded their involvement in local land use matters through increased regulatory
enforcement of various environmental laws, including the Endangered Species Act, the Clean Water Act
and the Clear Air Act, among others. Such regulations can substantially impair the rate and amount of
j development without requiring just compensation unless the effect of the regulation is to deny all
economic use of the affected property. Bondowners should assume that any event that significantly
50
impairs the ability to develop land in the Autumn Creek Area could cause the land values within the
Autumn Creek Area to decrease substantially and could affect the willingness and ability of the owners of
land to pay the Special Tax when due or to proceed with development of land in the Autumn Creek Area.
See "RISK FACTORS — Failure to Develop Properties" herein.
Competition
j The housing market comprising the United City of Yorkville and the surrounding area has other
pending and proposed projects with approximately 4,000 total housing units. These other projects have
absorption schedules and pricing projections that are competitive with the Project. Developers for these
projects include Lennar, Centex Homes, Wiseman Hughes Enterprises, Inc., Kimball Hill Homes, MPI
LLC and various small builders. This competition could have an adverse impact on the future value of
the property in the Autumn Creek Area and the rate at which the Single Family Homes or Townhomes are
sold and absorbed. See "APPENDIX A— Market Absorption Study" and "APPENDIX D— Appraisal."
In addition, competing projects may not be within a special service area, and therefore may not have the
additional special tax burden, which could also affect absorption.
Land Development Costs
Development of land within the Autumn Creek Area is contingent upon construction or
acquisition of major special services such as arterial streets, water distribution facilities, sewage collection
and transmission facilities, drainage and flood protection facilities, gas, telephone, other communication
and electrical facilities, and lighting, as well as local improvements and on -site grading and related
improvements. There can be no assurance that the Special Services will be constructed or will be
constructed in time for development to proceed as currently expected. See "PROPOSED
DEVELOPMENT."
The cost of the Special Services plus the public and private on -site and off -site improvements can
be expected to increase the public and private debt encumbering the land within the Autumn Creek Area.
The Special Tax has priority over all existing and future private liens, imposed on property in the Autumn
Creek Area except, possibly, for liens or security interests held by the Federal Deposit Insurance
Corporation. See "RISK FACTORS — Bankruptcy," and "— Potential Delay and Limitations in
{ Foreclosure Proceedings." Although liens securing private debt are subordinate to the lien of the Special
Tax securing the Bonds, this increased private debt could reduce the ability or desire of the property
owners to pay the Special Tax imposed against their property. See "SECURITY AND SOURCE OF
PAYMENT FOR THE BONDS — Special Tax " and "SECURITY AND SOURCE OF PAYMENT FOR
THE BONDS — Summary of the Appraisal." If property owners in the Autumn Creek Area fail to pay the
Special Tax, and if the Reserve Fund is depleted prior to collection of such delinquent Special Tax
through foreclosure sale or otherwise, there could be a default in the payment of principal of, and interest
on, the Bonds. See "RISK FACTORS — Bankruptcy" herein.
I
Overlapping Indebtedness
The Special Tax and any penalties assessed for failure to pay such taxes will constitute a lien
against the parcels of land on which they will be levied until such taxes are paid. Such lien will be on a
parity with all special taxes and special assessments which may be levied by other agencies and is co-
equal to and independent of the lien for general ad valorem real property taxes regardless of when they
are imposed upon the same property. The City, however, has no control over the ability of other entities
and districts to issue indebtedness secured by special taxes or assessments payable from all or a portion of
the property within the Autumn Creek Area.
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The ability of an owner of land within the Autumn Creek Area to pay the Special Tax could be
adversely affected if additional debt is issued or additional taxes or assessments are levied which are
payable by the owners of land within the Autumn Creek Area. The imposition of additional liens,
whether public or private, may reduce the ability or willingness of the landowners to pay the Special Tax
and increases the possibility that foreclosure proceeds will not be adequate to pay delinquent Special Tax.
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Dependence on Unimproved Property
Initially, payment of the Bonds will be partially dependent upon, among other things, receipt of
Special Tax imposed on certain Parcels not improved with Single Family Homes or Townhomes for a
number of years in the future. See "THE SPECIAL SERVICE AREA AND SPECIAL TAX" and
"PLAN OF FINANCE— Expected Tax Revenues and Debt Service Coverage" herein. Parcels not
improved with Single Family Homes or Townhomes are less valuable per Parcel than Parcels improved
with Single Family Homes. Parcels not improved with Single Family Homes or Townhomes also provide
less security to the Bondowners should it be necessary for the City to foreclose on such Parcels due to the
nonpayment of the Special Tax. Because of the current concentration of ownership in the Developer, the
timely payment of the Bonds depends upon the willingness and ability of the Developer and future
owners to pay the Special Tax levied on the Parcels not improved with Homes or Townhomes when due.
See "RISK FACTORS—Concentration of Ownership" above. A slowdown or stoppage in the continued
improvement of Parcels with Homes or Townhomes could reduce the willingness and ability of the
Developer to make Special Tax payments on Parcels not improved with Homes or Townhomes and could
greatly reduce the value of such property in the event it has to be foreclosed. See "RISK FACTORS —
Appraised Values" above.
Zoning Approvals
The City has adopted ordinances approving the Preliminary Plat of Subdivision for the Project, l
the Preliminary Engineering Plans, and approval of the Preliminary Plat of Subdivision. The Developer
has applied for final plat approval for the remaining phases. Final plat approval is required for the
remainder of the area pursuant to the covenants regarding the Autumn Creek Area zoning contained in the
Annexation Agreement and the Public Infrastructure Agreement. Consideration and approval by the City
may not always be exercised in a manner that is favorable to the Developer.
Permits
The Developer has applied for and obtained permits from the Illinois Environmental Protection
Agency for the sanitary sewer and water main construction, the U.S. EPA (NPDES) for general storm
water discharge for the Project, the Sanitary District, Illinois Department of Natural Resources, the
Illinois Historic Preservation Agency, and the US Fish and Wildlife Service. The Illinois Department of
Transportation has provided a permit of accessibility to the site. The Developer has not, as of the date
hereof, applied for all building permits necessary to construct the Special Services and the other
improvements that make up the Project. Failure to obtain the necessary permits on a timely basis will
adversely affect the completion of the Project.
Tax Delinquencies
In order to pay debt service on the Bonds, it is necessary that the Special Tax within the Autumn
Creek Area be paid in a timely manner. The Special Tax, from which funds necessary for the payment of
principal of, and interest on, the Bonds are derived, will be billed to the property owners within the
Autumn Creek Area on the regular general ad valorem property tax bills sent to owners of such properties
or on a special tax bill delivered at the same time as the regular ad valorem property tax bills. Such
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Special Tax installments are due and payable, and bear the same penalties and interest for non - payment,
as do general ad valorem property tax installments. The unwillingness or inability of a property owner to
pay ad valorem property tax bills as evidenced by general ad valorem tax delinquencies may also indicate
an unwillingness or inability to make general ad valorem tax payments and Special Tax installment
payments in the future. If the Developer or future owners fail to pay the Special Tax when due there
could be significant special tax delinquencies. See "RISK FACTORS -- Concentration of Ownership."
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Also, the Kendall County Collector may not be willing to bill the property owners in the Autumn
Creek Area the Special Tax on their regular ad valorem property tax bills, or, if the Kendall County
Collector is willing to bill the properly owners in the Autumn Creek Area the Special Tax on their regular
ad valorem property bills today, the Kendall County Collector may not be willing to do so in the future.
In that event, the responsibility to bill and collect Special Tax would become the City's responsibility
under the Special Tax Report.
See "SECURITY AND SOURCE OF PAYMENT FOR THE BONDS — Enforcement of
Payment of Special Tax" for a discussion of the provisions which apply, and procedures which the City is
obligated to follow under the Indenture, in the event of delinquencies in the payment of Special Tax. See
"RISK FACTORS — Potential Delay and Limitation in Foreclosure Proceedings" and ' — Bankruptcy"
below, for a discussion of limitations on the City's ability to foreclose the lien of delinquent unpaid
Special Tax in certain circumstances.
Potential Delay and Limitations in Foreclosure Proceedings
The payment of Special Tax and the ability of the City to foreclose the lien of a delinquent unpaid
Special Tax may be limited by bankruptcy, insolvency and other laws generally affecting creditors' rights
or by the laws of the State of Illinois relating to judicial foreclosure. See "RISK FACTORS —
Bankruptcy." In addition, the prosecution of a foreclosure could be delayed due to many reasons,
including crowded local court calendars or lengthy procedural delays.
The ability of the City to foreclose the lien of a delinquent unpaid Special Tax payment may be
limited with regard to properties in which the Federal Deposit Insurance Corporation ( "FDIC ") or any
successor to the FDIC may acquire an interest. The FDIC currently does not have an interest in the land
within the Autumn Creek Area. However, if a lender takes a security interest in property in the Autumn
Creek Area and becomes insolvent, such a lender could fall under the jurisdiction of the FDIC. The FDIC
could assert federal preemptive power to challenge any prior taxes, special taxes and assessments where it
is in their interest to do so, including the requirement that local agencies obtain the consent of the FDIC in
order to foreclose the lien of delinquent unpaid special taxes.
If the City is required to obtain the consent of the FDIC to foreclose on property located in the
Autumn Creek Area, such consent could be denied and the City might be unable to pursue foreclosure
proceedings. Additionally, obtaining such consent could delay the foreclosure proceedings. Any delay in
foreclosure proceedings or the inability of the City to foreclose on property in the Autumn Creek Area in
which the FDIC has an interest could result in a delay or default in payment of the Bonds.
In addition, potential investors should be aware that judicial foreclosure proceedings are not
summary remedies and can be subject to significant procedural and other delays caused by crowded court
calendars and other factors beyond the control of the Autumn Creek Area or the City. In addition, the
Illinois Constitution prescribes certain minimum redemption periods, which may be as long as three
years, in the event of foreclosure. See "SECURITY AND SOURCE OF PAYMENT FOR THE
BONDS — Foreclosure of Liens." It should be assumed that, under current conditions, it is estimated that
a judicial foreclosure of the lien of the Special Tax could take several years from initiation of litigation to
the lien foreclosure sale.
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:.
Delays and uncertainties in the Special Tax lien foreclosure process create significant risks for
Bondowners. High rates of Special Tax payment delinquencies which continue during the pendency of
i protracted Special Tax lien foreclosure proceedings, could result in the rapid, total depletion of the
i Reserve Fund prior to replenishment from the resale of Parcels in the Autumn Creek Area upon
foreclosure. In that event, there could be a default in payments of the principal of, and interest on, the
Bonds. See "RISK FACTORS --- Concentration of Ownership" above.
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Bankruptcy
The various legal opinions to be delivered concurrently with the delivery of the Bonds (including
Bond Counsel's approving legal opinion) will be qualified, as to the enforceability of the various legal
instruments, by moratorium, bankruptcy, reorganization, insolvency or other similar laws affecting the
rights of creditors generally.
Although a bankruptcy proceeding would not cause the Special Tax to become extinguished, the
amount and priority of any Special Tax lien could be modified if the value of the property falls below the
value of the lien. If the value of the property is less than the lien, such excess amount could be treated as
an unsecured claim by a bankruptcy court having jurisdiction. In addition, bankruptcy of a property
owner could result in a delay in commencement and completion of tax sale or foreclosure proceedings.
Such delay would increase the likelihood of a delay or default in payment of the principal of, and interest
on, the Bonds and the possibility of delinquent tax Special Tax installments not being paid in full.
Maximum Special Taxes
Pursuant to the Bond Ordinance, the City has levied the Special Tax in the maximum amounts
permitted by the Special Tax Report. However, there is no assurance that the maximum amounts will at
all times be sufficient to pay the amounts required to be paid by the Indenture. See "SECURITY AND
SOURCE OF PAYMENT FOR THE BONDS —Tax Revenues" and "THE SPECIAL SERVICE AREA
AND SPECIAL TAX — Special Service Area Special Tax Roll and Report."
Disclosure to Future Purchasers
The City has recorded the Establishing Ordinance for the property included in the Autumn Creek
Area in the Office of the Recorder of Deeds of Kendall County on or prior to the Date of Delivery, and
will record the Declaration of Consent in the Office of the Recorder of Deeds of Kendall County on or
prior to the Date of Delivery. While title companies normally refer to such notices in title reports, there
can be no guarantee that such reference will be made or, if made, that a prospective purchaser or lender
will consider such Special Tax obligation in the purchase of Parcels or the lending of money thereon. The
Developer has agreed to include the Rider with the purchase contract that initial purchasers will sign
disclosing and explaining the Special Tax obligation. There can be no guarantee that the Rider will be
included with all of Developer's purchase contracts, or, if the Rider is included, that a prospective
purchaser will consider the Special Tax obligation in the purchase of Parcels. A purchaser's failure to be
aware of or consider the Special Tax obligation may negatively affect such purchaser's willingness and
ability to pay the Special tax when due.
Limited Secondary Market
There can be no guarantee that there will be a secondary market for the Bonds or, if a secondary
market exists, that such Bonds can be sold for any particular price. Except as set forth in the Public
Infrastructure Agreement and as described below under the caption "CONTINUING DISCLOSURE ",
neither the City nor the Developer has committed to provide any financial or and operating information
on a going forward basis. See "Appendix C— Indenture." Occasionally, because of general market
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conditions, lack of current information, the absence of a credit rating for the Bonds or because of adverse
history or economic prospects connected with a particular issue, secondary marketing practices in
connection with a particular issue are suspended or terminated. In addition, prices of issues for which a
market is being made will depend on then prevailing circumstances. Such prices could be substantially
different from the original purchase price.
Secondary Market and Prices
The Underwriter presently does not intend to engage in secondary market trading of the Bonds.
The Underwriter is not obligated to engage in secondary trading or to repurchase any of the Bonds at the
request of the Owners thereof. No assurance can be given that a secondary market for any of the Bonds
will be available and no assurance can be given that the initial offering prices for the Bonds will continue
for any period of time.
Loss of Tag Exemption
Interest on the Bonds could become includible in gross income for federal income tax purposes
retroactive to the date of issuance of the Bonds as a result of a failure of the City to comply with certain
provisions of the Code. Should such an event of taxability occur, the Bonds are not subject to early
redemption and will remain outstanding to maturity or until redeemed under the optional redemption or
mandatory redemption provisions of the Indenture.
Risk of Legislative and Judicial Changes
Future legislation, regulations, governmental or judicial interpretation of regulations or legislation
or practices and procedures related to property tax assessment, levy, collections or distribution could have
a material effect on the calculation or availability of the Special Tax. There is no assurance that
legislation will not be considered or enacted in the future, and unless provision is made in such legislation
for special service areas generally in Illinois, the generation of the Special Tax could be materially
adversely affected.
Change in Density
As set forth in this Limited Offering Memorandum, the Developer intends to develop the Autumn
Creek Area with 317 Single Family Homes and 258 Townhouses. The Special Tax Report allocates the
Special Tax on the basis of the 317 Single Family Lots and 258 Townhomes. However, if a change in the
number of Single Family Homes or Townhomes reduces the total of the Maximum Parcel Special Taxes,
the Special Tax Report calls for a mandatory repayment of the Special Tax. Pursuant to the Special Tax
Report, if the mandatory prepayment is not paid, such prepayment amount may be levied on any and all
of the remaining Parcels. The levy of such mandatory prepayment amount shall have the same sale and
lien priorities as are provided for general ad valorem property taxes. In the event such levy is not paid,
the Village may collect the levy through a tax sale proceeding, which may result in a delay in collection
of that portion of the Special Tax.
UNDERWRITING
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The Underwriter, William Blair & Company, L.L.C., has agreed to purchase the Bonds from the
City for reoffering, subject to certain conditions, at an aggregate purchase price of $15,000,000, which
reflects an underwriting discount of $ Under the bond purchase agreement among the
City, the Developer, and the Underwriter (the "Bond Purchase Agreement"), the Underwriter is obligated
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to purchase all of the Bonds if any are purchased. The obligation of the Underwriter to make such
purchase is subject to certain conditions set forth in the Bond Purchase Agreement. The Underwriter may
change the prices and other terms with respect to the offer and sale of the Bonds from time to time after
the Bonds are released for sale, and the Bonds may be offered and sold at prices other than the initial
offering price set forth on the cover page of this Limited Offering Memorandum, including sales to
dealers.
LEGAL OPINIONS
Legal matters incident to the authorization, issuance and sale of the Bonds are subject to the
approving legal opinion of Foley & Lardner LLP, Chicago, Illinois, Bond Counsel. The proposed form of
the opinion of Bond Counsel is included herein as Appendix F. Certain legal matters will be passed upon
for the Underwriter by its counsel, Schain, Burney, Ross & Citron, Ltd., Chicago, Illinois; for the City, by
its counsel, John Wyeth, Esq., Yorkville, Illinois, and for the Developer by its counsel, Gardner, Carton &
Douglas, Chicago, Illinois.
TAX MATTERS
In the opinion of Foley & Lardner LLP, Bond Counsel, based upon an analysis of existing laws,
regulations, rulings and court decisions, and assuming, among other matters, compliance with certain
covenants, interest on the Bonds is excluded from gross income for federal income tax purposes under the
Code and is not a specific preference item for purposes of determining an individual's or corporation's
federal alternative minimum taxable income. However, Bond Counsel observes that interest on the Bonds
is included in adjusted current earnings in calculating federal corporate alternative minimum taxable "
income. Interest on the Bonds is not exempt from State of Illinois income taxes.
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Bonds purchased, whether at original issuance or otherwise, for an amount greater than their
principal amount payable at maturity (or, in some cases, at their earlier call date) ( "Premium Bonds ") will
be treated as having amortizable bond premium. No deduction is allowable for the amortizable bond
premium in the case of bonds, like the Premium Bonds, the interest on which is excluded from gross
income for federal income tax purposes. However, the amount of tax exempt interest received, and a
purchaser's basis in a Premium Bond, will be reduced by the amount of amortizable bond premium
properly allocable to such purchaser. Thus, the amortization of Bond premium may have an effect on a
bondholder's recognition of gain or loss when a Premium Bond is sold or paid off. Beneficial Owners of
Premium Bonds should consult their own tax advisors with respect to the proper treatment of amortizable
bond premium in their particular circumstances.
To the extent the issue price of any maturity of the Bonds is less than the amount to be paid at
maturity of such Bonds (excluding amounts stated to be interest and payable at least annually over the
term of such Bonds), the difference constitutes "original issue discount," the accrual of which, to the
extent properly allocable to each Bondholder, is treated as interest on the Bonds which is excluded from
gross income for federal income tax purposes. For this purpose, the issue price of a particular maturity of
the Bonds is the first price at which a substantial amount of such maturity of the Bonds is sold to the
public (excluding bond houses, brokers, or persons or organizations acting in the capacity of underwriters,
placement agents or wholesalers). The original issue discount with respect to any maturity of the Bonds
accrues daily over the term to maturity of such Bond on the basis of a constant interest rate compounded
semiannually (with straight -line interpolations between compounding dates). The accruing original issue
discount is added to the adjusted basis of such Bond to determine taxable gain or loss upon disposition
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(including sale, redemption, or payment on maturity) of Bonds. Beneficial Owners of the Bonds should
consult their own tax advisors with respect to the tax consequence of ownership of Bonds with original
issue discount, including the treatment of purchasers who do not purchase such Bonds in the original
offering to the public at the first price at which a substantial amount of such Bond was sold to the public.
Section 103 of the Code imposes various restrictions, conditions and requirements relating to
exclusion from gross income for federal income tax purposes of interest on obligations such as the Bonds.
The City has covenanted to comply with certain restrictions designed to insure that interest on'the Bonds
will not be included in a bondholder's gross income for federal income tax purposes. Failure to comply
with these covenants may result in interest on the Bonds being included in gross income for federal
income tax purposes, possibly from the original issue date of the Bonds. The opinion of Foley &
Lardner LLP assumes compliance with these covenants. Foley & Lardner LLP has not undertaken to
determine (or to inform any person) whether any actions taken (or not,taken) or events occurring (or not
occurring) after the date of issuance of the Bonds may adversely affect the value of or the tax- exempt
status of interest on the Bonds. Further, Foley & Lardner LLP does not give assurance that pending or
further legislation or amendments to the Code, if enacted into law, will not adversely affect the value of or
the tax exempt status of interest on the Bonds. Beneficial Owners are encouraged to consult their own tax
advisors with respect to proposals to restructure the federal income tax.
Certain requirements and procedures contained or referred to in the Indenture, the Bond
Ordinance, the Tax Agreement and other relevant documents may be changed and certain actions
(including, without limitation, defeasance of the Bonds) may be taken or omitted under the circumstance
subject to the terms and conditions set forth in such documents. Foley & Lardner LLP expresses no
opinion as to any Bond or the interest thereon if any such change occurs or action is taken or omitted
upon advice or approval of bond counsel other than Foley & Lardner LLP.
Although Foley & Lardner LLP is of the opinion that interest on the Bonds is excluded from
gross income for federal income tax purposes, the ownership or disposition of, or the accrual or receipt of
j interest on, the Bonds may otherwise affect a Beneficial Owner's federal or state tax liability. The nature
and extent of these other tax consequences will depend upon the particular tax status of the Beneficial
j Owner or the Beneficial Owner's other items of income or deduction. Foley & Lardner LLP expresses no
opinion regarding any such other tax consequences.
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No assurance can be given that any future legislation or clarifications or amendments to the Code,
if enacted into law, will not cause the interest on the Bonds to be subject, directly or indirectly, to federal
j or state income taxation, or otherwise prevent the Bondholders from realizing the full current benefit of
the tax status of the interest thereon. Further, no assurance can be given that any such future legislation,
or any actions of the IRS, including, but not limited to, selection of the Bonds for audit examination, or
the course or result of any examination of the Bonds, or other bonds which present similar tax issues, will
not affect the market price for the Bonds.
CONTINUING INFORMATION
The City
The Indenture requires the City to make available to the Trustee (i) each of the reports,
certificates and other information required to be delivered by the Developer to the City pursuant to
Section 6.1 of the Public Infrastructure Agreement (discussed below), (ii) a report or reports not later than
December 31st each year commencing December 31, 2006, which may be prepared by the Special Tax
Consultant, setting forth the Special Tax Requirements for the current year and the immediately
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succeeding year and the amount of taxes to be abated for the current year, the current year's collection of
taxes, delinquencies, tax sales, foreclosures, the Special Service Area's equalized assessed valuation, the
estimated new value -to -lien ratio and current ad valorem property tax rate(s) and (iii) a copy of the annual
audited financial statements of the City.
The Developer
Section 6.1 of the Public Infrastructure Agreement requires the Developer to provide to the City,
the Underwriter, the Notice Beneficial Holders and the Special Tax Consultant, certain continuing
information concerning the Autumn Creek Area and the Project until such time as 90 percent of the
Single Family Homes and Townhouses are sold. This information includes quarterly reports from the
Developer to the City, the Underwriter, the Notice Beneficial Holders and the Special Tax Consultant,
setting forth: (A) the number of Single Family Homes and Townhouse sales and the range of sales prices
for such homes; (B) a description of the type of such homes; (C) the number of Single Family Homes and
Townhouses constructed on the Autumn Creek Area; (D) the number of sales of Single Family Homes
and Townhouses closed; (E) any bulk property sales; (F) any pending litigation which would adversely
affect the ability of the Developer to develop the Autumn Creek Area or to pay Special Tax; (G) any
material change in the structure or ownership of the Developer; (H) any failure of the Developer, or any
affiliate of the Developer, to pay by the date due general ad valorem property taxes or Special Tax, or any
other governmental charge in the Autumn Creek Area; (1) any denial or termination of credit; (J) any
denial or termination of, or default under, any line of credit or loan or any other loss of a source of funds
that Developer has reason to believe is likely to have a material adverse affect on the ability of the
Developer to cause the Autumn Creek Area to be developed; (K) the occurrence of any event of
Bankruptcy with respect to the Developer, or any affiliate of the Developer; (L) any significant
amendments to land use entitlements for the Autumn Creek Area, if such amendments are likely to
prevent or delay the implementation of the Autumn Creek Area; (M) any previously undisclosed
governmentally- imposed preconditions to commencement or continuation of development on the Autumn
Creek Area, if such preconditions are likely to prevent or delay the development of the Autumn Creek
Area; (l) any previously undisclosed legislative, administrative or judicial challenges to development of
the Autumn Creek Area or the collection of Special Tax; (0) any changes of which the Developer is
aware, if material, in the alignment, design or likelihood of completion of significant public
improvements affecting the Autumn Creek Area, including major thoroughfares, sewers, water
conveyance systems and similar facilities. Quarterly reports shall be delivered within thirty (30) days
after the end of each calendar quarter. In addition, the Developer shall use its best efforts to provide
prompt notice of any of the events listed in (F) through (0) above. Until such time as 90 percent of the
Single Family Homes and Townhomes are sold as verified in writing by the Developer to the City and the
Underwriter, upon prior written notice to the Developer by the Notice Beneficial Holders, the Developer
shall make its current annual financial statements available for review by the Notice Beneficial Holders.
See "APPENDIX E --The Public Infrastructure Agreement."
Subsequent purchasers of the Bonds who notify the Trustee in writing that they are Notice
Beneficial Holders will be entitled to receive the information described under "CONTINUING
DEVELOPER INFORMATION" herein. Prospective purchasers of the Bonds can obtain the continuing
Developer information described herein from the Underwriter.
LIAHTED OFFERING
The Bonds are being offered only to a limited number (35 or less) of sophisticated investors.
Each prospective purchaser of the Bonds is being furnished a copy of this Limited Offering
Memorandum, together with any supplements to this Limited Offering Memorandum. In addition, each
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prospective purchaser is hereby offered the opportunity, prior to purchasing any Bonds and at any time
the Bonds are outstanding, to ask questions of, and receive answers from the Underwriter, the City and
the Developer concerning the terms and conditions of the offering, and to obtain any additional relevant
information, to the extent either possesses the same or can acquire it without unreasonable effort or
expense. Inquiries concerning additional information should be directed in writing to the Underwriter at
William Blair & Company, L.L.C., 222 W. Adams St., Chicago, Illinois 60606, Attention: Municipal
Bond Department,
NO LITIGATION
The City
At the time of delivery of and payment for the Bonds, the City will certify that there is no action,
suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, regulatory agency,
public board or body, pending with respect to which the City has been served with process or is otherwise
aware, or, to the knowledge of the officer of the City executing such certificate, threatened against the
City affecting the existence of the City, the Autumn Creek Area or the titles of its officers to their
respective offices or seeking to restrain or to enjoin the sale or delivery of the Bonds, the application of
the proceeds thereof in accordance with the Bond Ordinance and/or the Indenture, or the collection or
application of the Special Tax, or in any way contesting or affecting the validity or enforceability of the
Bonds, the Bond Ordinance, the Indenture, the Public Infrastructure Agreement, or any action of the City
contemplated by any of the said documents, or the collection or application of the Special Tax, or in any
way contesting the completeness or accuracy of the Bond Ordinance, the Indenture or any amendments or
supplements hereto, or contesting the powers of the City contemplated by any of said documents, nor, to
the knowledge of the officer of the City executing such certificate, is there any basis therefor.
The Developer
At the time of delivery of and payment for the Bonds, the Developer will certify that there is no
action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government
agency, public board or body, pending or threatened by or against the Developer: (i) in any way
questioning the due formation and valid existence of the Developer, (ii) in any way questioning or
affecting the validity of the Public Infrastructure Agreement or the consummation of the transactions
contemplated thereby; (iii) in any way questioning or contesting_ the validity of any governmental
approval of the Project or any aspect thereof; or (iv) which would have a material adverse effect upon the
financial condition of the Developer or the ability of the Developer to develop the Project.
NO RATING
The City has not made, and does not currently contemplate making, an application to any rating
agency for the assignment of a rating to the Bonds.
MISCELLANEOUS
The references, excerpts, and summaries of documents and statutes contained in this Limited
Offering Memorandum do not purport to be complete statements of the provisions of such documents and
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statutes, and reference is made to all such documents and statutes for full and complete statements of their
terms and provisions.
The estimates, assumptions, statistical and financial information, and all other information
contained in this Limited Offering Memorandum have been compiled from official and other sources
believed by the underwriter to be reliable; however, none of such estimates, assumptions, or information
is guaranteed by the City, the Developer, the Special Tax Consultant, or the Underwriter as to
completeness or accuracy.
Any statement made in this Limited Offering Memorandum involving matters of opinion or of
estimates, whether or not so expressly stated, is set forth as such and not as a representation of fact; no
representation is made that any of the estimates contained herein will be realized. The information and
expressions of opinion contained herein are subject to change without notice, and neither the delivery of
this Limited Offering Memorandum nor any offer or sale made hereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of the City or the Autumn Creek Area
since the date hereof.
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AUTHORIZATION
Both the City and the Developer have authorized the execution and distribution of this Limited
Offering Memorandum.
UNITED CITY OF YORKVILLE,
an Illinois municipal corporation
By: /s/
Arthur Prochaska, Mayor
PULTE HOME CORPORATION
By: /s/
Name, Title
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APPENDIX A
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Market Absorption Study
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APPENDIX B
Special Service Area Special Tax Roll and Report
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APPENDIX C
Indenture
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APPENDIX D
Appraisal
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APPENDIX E
Public Infrastructure Agreement
APPENDIX F
Bond Opinion
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Exhibit F
Agreement for Consulting Services
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CH12 603856.3
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AGREEMENT FOR CONSULTING SERVICES
THIS AGREEMENT (the "Agreement ") is made and entered into as of this _ day
of 2006, by and between the United City of Yorkville (herein called
"Yorkville "); Centex Homes, a corporation (herein called "Centex "), and David
Taussig and Associates, Inc., a California corporation (herein called "Consultant ").
RECITALS
A. The Consultant desires to perform certain services as described herein with respect to
the proposed Special Service Area (as such terms are defined in Exhibit "A" attached hereto).
B. Yorkville and Centex desire that Consultant perform such services.
C. Centex will be responsible for payment of the Consulting Services (as that term is
defined below) and Consultant's expenses and the execution of this Agreement indicates Centex's
agreement to pay Consultant's professional fees for the services provided hereunder and expenses, as
provided in this Agreement and the exhibits attached hereto.
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AGREEMENT
Yorkville, Centex, and the Consultant in consideration of the mutual promises and conditions
herein contained agree as follows:
ARTICLE I
TERM OF CONTRACT
Section 1.1 This Agreement shall become effective on the date stated above and will
continue in effect until the earlier of (i) the date of the closing of the second series of bonds for the
Special Service Area or (ii) until terminated as provided in Article VI below.
ARTICLE II
SERVICES TO BE PERFORMED BY CONSULTANT
Section 2.1 Consultant agrees to perform the professional services and to deliver the work
products as described in the Scope of Work Statement attached as Exhibit "A" hereto and
incorporated herein by reference (the "Scope of Work Statement "). Such professional services and
work products, as from time to time modified in accordance with Section 2.3 hereof, are collectively
referred to as the "Consulting Services."
Section 2.2 Consultant will determine the method, details and means of performing the
Consulting Services. Consultant may, at Consultant's own expense, employ such assistance as it
deems necessary to perform the Consulting Services required under this Agreement. Consultant shall
conduct research and arrive at conclusions with respect to its rendition of information, advice,
recommendation or counsel independent ofthe control and direction ofYorkville and Centex, other
than normal contract monitoring. All computer software (including without limitation financial
models, compilations of formulas, and spreadsheet models), inventions, designs, programs,
improvements, processes and methods (collectively, the "Proprietary Models ") used or developed
United City of Yorkville — Centex Homes SSA No. 2005 -109 Page 1
Special Service Area Consulting Services January 4, 2006
by Consultant in performing its work is proprietary and shall remain property owned solely by, or
licensed by a third parry to, Consultant. Yorkville and Centex acknowledge and agree that the
consideration paid by Centex herein only entitles Centex and Yorkville to a license to use the hard
copy or electronically- transmitted reports generated pursuant to the Consulting Services and that any
Proprietary Model that Consultant uses to generate such reports is owned by, or is duly licensed
j from a third party to, Consultant and is not being provided to Centex or Yorkville hereunder. Centex
and Yorkville acknowledge that Consultant may have used reports and analyses that Consultant
authored for other clients as base works or templates for the reports and analyses prepared for
Yorkville pursuant to this Agreement, and Centex and Yorkville acknowledge and agree that
Consultant has the right to use the reports and analyses that it authors pursuant to this Agreement as
base works or templates for reports and analyses that Consultant authors for Consultant's other
clients, provided, however that Consultant shall not use any confidential information provided by
Centex or Yorkville in such future reports and analyses. Centex and Yorkville acknowledge and
agree that Consultant has spent substantial time and effort in collecting and compiling data and
information (the "Data Compilations ") in connection with the Consulting Services and that such
Data Compilations may be used by Consultant for its own purposes, including, without limitation,
sale or distribution to third parties; provided, however, that Consultant will not sell or distribute any
of Centex's or Yorkville's confidential information that may be contained in such Data Compilations,
unless such confidential information is used only on an aggregated and anonymous basis.
Section 2.3 Any proposed changes in the Consulting Services hereunder shall be
submitted to the other parties hereto, and any such changes agreed to by the parties shall be reflected
in an amendment to the Scope of Work Statement in accordance with Section 7.2 hereto.
ARTICLE III
COMPENSATION
Section 3.1 Centex agrees to pay Consultant for its Consulting Services, in accordance
with this Agreement, a professional fee computed according to the Professional Fee Schedule
attached as Exhibit "B" hereto and incorporated herein by reference (the "Fee Schedule "). Centex
acknowledges and agrees that portions of Consultant's professional fees and expenses were incurred
by Consultant prior to the execution of this Agreement (the "Pre- Agreement Fees ") and Centex
agrees to pay such Pre - Agreement Fees in accordance with this Agreement.
Section 3.2 Centex shall reimburse the Consultant for Consultant's reasonable expenses.
Expenses shall include all actual expenditures made by Consultant in the performance of any
Consulting Services undertaken pursuant to the Agreement, including, without limitation, the
following expenditures:
(a) Cost of clerical assistance @ $35.00 per hour, including typing, collation,
printing and copying, plus copier and photography costs, including
photographic reproduction of drawings and documents based upon
Consultant's actual costs and not subject to any mark -ups.
(b) Travel and transportation costs, including mileage for the use of personal
automobiles at the prevailing IRS standard rate, rental vehicles, lodging and
regularly scheduled commercial airline coach ticket costs based upon
Consultant's actual costs and not subject to any mark -ups.
United City of Yorkville — Centex Homes SSA No. 2005 -109 Page 2
Special Service Area Consulting Services January 4, 2006
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(c) Courier services, facsimile, and telephone expenses based upon Consultant's
actual costs and not subject to any mark -ups.
Section 3.3 As provided in the Fee Schedule, Centex shall pay the invoice of Consultant
at the closing of the sale of each series of bonds for the Centex Special Service Area. Consultant
shall use commercially reasonable efforts to forward the invoice to Centex seven (7) days before the
date of each such bond closing. Such invoice shall contain the payment amount to be made by
Centex to Consultant with respect to the bond closing. The payment shall be made on the date of the
bond closing.
Section 3.4 If the closing of the sale of the first series of bonds for the Centex SSA No.
2005 -109 does not occur prior to June 30, 2006, Consultant shall present to Centex as promptly as
practicable after such date an invoice covering Consulting Services and reimbursable expenses to
date. Thereafter, on or about the first two weeks of each month during which Consulting Services
are rendered hereunder, Consultant shall present to Centex an invoice covering the current
Consulting Services performed and the reimbursable expenses incurred pursuant to this Agreement
and exhibits thereto for the preceding month. Such invoices shall be paid by Centex within thirty
(30) days of the date of each invoice. A 1.2% per month (or the maximum amount permitted by law
if less than 1.2 %) charge may be imposed against accounts which are not paid within thirty (30) days
of the date of each invoice.
Section 3.5 The maximum total professional fee amount set forth in the Fee Schedule may
be increased, upon agreement of the parties, as a result of any expansion of the Consulting Services
to be rendered hereunder pursuant to Section 2.3 or as provided in the Scope of Work Statement.
Any such changes in the maximum total professional fee amount agreed to by the parties shall be
reflected in an amendment to the Fee Schedule entered into in accordance with Section 7.2.
Section 3.6 Records of Consultant's costs relating to (i) the Consulting Services performed
under this Agreement and (ii) reimbursable expenses shall be kept and shall be available to
Yorkville, Centex, or their authorized representative at reasonable intervals during normal business
hours.
ARTICLE IV
OTHER OBLIGATIONS OF CONSULTANT
Section 4.1 Consultant agrees to perform the Consulting Services in accordance with the
Scope of Work Statement. Should any errors caused by the negligence of Consultant be found in
such services or products, upon written notice to Consultant, Consultant shall correct them at no
additional charge by revising the work products called for in the Scope of Work Statement to
eliminate the errors.
Section 4.2 Consultant will supply all tools and instrumentalities required to perform the
Consulting Services under the Agreement.
Section 4.3 Neither this Agreement nor any duties or obligations under this Agreement
may be assigned by Consultant without the prior written consent of Yorkville and Centex. However,
Consultant may subcontract portions of the work to be performed hereunder to other persons
provided Consultant notifies Yorkville and Centex of the name and address of said proposed
subcontractor and Yorkville and Centex either consent or fail to respond to such notification within
United City of Yorkville — Centex Homes SSA No. 2005 -109 Page 3
Special Service Area Consulting Services January 4, 2006
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ten (10) business days of such notification with respect to the use of any particular proposed
subcontractor.
Section 4.4 In the performance of its Consulting Services hereunder, Consultant is, and
shall be deemed to be for all purposes, an independent contractor (and not an agent, officer,
employee or representative of Yorkville or Centex) under any and all laws, whether existing or
future. Consultant is not authorized to make any representation, contract or commitment on behalf of
Yorkville or Centex.
ARTICLE V
OTHER OBLIGATIONS OF YORKVILLE
Section 5.1 Yorkville and Centex agree to comply with all reasonable requests of
Consultant and provide access to all documents reasonably necessary to the performance of
Consultant's duties under this Agreement with the exception of those documents which the Scope of
Work Statement calls upon the Consultant to prepare.
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Section 5.2 Neither this Agreement nor any duties or obligations under this Agreement
may be assigned•by Yorkville or Centex without the prior written consent of Consultant.
Section 5.3 Yorkville, Centex, other public agencies and landowners, other Consultants,
and other professionals and parties dealing with Yorkville or Centex or involved in the subject
development project referred to in the Scope of Work Statement (collectively, the "Furnishing
Parties ") will be furnishing to Consultant various data, reports, studies, computer printouts and
other information and representations as to the facts involved in the project which Centex and
Yorkville understand Consultant will be using and relying upon in preparing the reports, studies,
computer printouts and other work product called for by the Scope of Work Statement. Consultant
shall not be obligated to establish or verify the accuracy of the information furnished by or on behalf
of the Furnishing Parties, nor shall Consultant be responsible for the impact or effect on its work
products of the information furnished by or on behalf of the Furnishing Parties, in the event that such
information is in error and therefore introduces error into Consultant's work products.
Section 5.4 In the event that court appearances, testimony or depositions are required of
Consultant in connection with the services rendered hereunder, Centex shall compensate Consultant
at a rate of $250 per hour and shall reimburse Consultant for out -of- pocket expenses on a cost basis.
ARTICLE VI
TERMINATION OF AGREEMENT
Section 6.1 Yorkville may terminate this Agreement upon thirty (30) days written notice
to Centex and Consultant. Centex may terminate this Agreement upon thirty (30) days written notice
to Yorkville and Consultant. Consultant may terminate its obligations to perform Consulting
Services under this Agreement upon thirty (30) days written notice to Yorkville and Centex.
Section 6.2 Should Yorkville, Centex, or both Yorkville and Centex default in the
performance of this Agreement or materially breach any of its provisions, Consultant may terminate
this Agreement immediately, unless such material breach has been cured by the breaching party(ies)
within ten (10) days following written notice of the material breach from Consultant; provided,
United City of Yorkville — Centex Homes SSA No. 2005 -109 Page 4
Special Service Area Consulting Services January 4, 2006
however, that if Yorkville breaches this Agreement, Centex shall have the right, but not the
obligation, to cure such breach on Yorkville's behalf, to the extent permitted by law. Should
Consultant default in the performance of this Agreement or materially breach any of its provisions,
Yorkville or Centex may terminate this Agreement immediately, unless such material breach has
been cured within ten (10) days following written notice of the material breach from Yorkville or
Centex.
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Section 6.3 If this Agreement is terminated for any reason, Consultant shall be paid for all
Consulting Services rendered, in accordance with the Fee Schedule (not to exceed the maximum
amount set forth in Article I of the Fee Schedule), and reimbursable expenses, in accordance with
Section 3.2, incurred up to the effective date of termination of the Agreement.
Section 6.4 The covenants contained in Sections 2.2, 3.1, 3.2, 3.3, 3.4, 5.3, 5.4,63, 6.4,
and Article VII shall survive the termination of this Agreement.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Any notices to be given hereunder by any party to the others may be effected
either by personal delivery in writing, by United States registered or certified mail, return receipt
requested, postage prepaid, sent by a recognized overnight courier service, by facsimile or email.
Notices shall be addressed to the parties at the addresses appearing below, but each party may
change the address by written notice in accordance with the first sentence of this Section 7.1.
Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will
be deemed communicated as of three (3) business days after mailing. Notices sent by overnight
courier shall be deemed communicated one (1) business day after depositing with such overnight
courier service. Notices sent via facsimile will be deemed received on the date faxed (with receipt
confirmed). Notices sent via email will be deemed received within one business day of when the
email was sent, if no notice of failed delivery is received.
If to United City of Yorkville With a copy to:
Yorkville: City Attorney
800 Game Farm Road
Yorkville, IL 60560
Attention: John Wyeth
Phone: (630) 553 -8570
If to Centex: Centex Homes With a copy to: McDermott, Will & Emery
2250 Point Boulevard 227 West Monroe Street
Suite 401 Chicago, IL 60606 -5096
Elgin, IL 60123 Attn: Fred Feinstein
Attn: Matthew Cudney Fax: (312) 984 -7665
Fax: (847) 841-3583
Email; Email: ffeinstein(amwe.com
Matthew.CudnevO.Centex.com
United City of Yorkville — Centex Homes SSA No. 2005 -109 Page 5
Special Service Area Consulting Services January 4, 2006
If to David Taussig and Associates, Inc. With a copy to:
Consultant: 1301 Dove Street, Suite 600
Newport Beach, CA 92660
Attention: Mitch Mosesman
Fax (949) 955 -1500
Email: mitchia.Oussie.com
Section 7.2 This Agreement and exhibits hereto supersede any and all agreements, either
oral or written, between the parties hereto with respect to the rendering of service by Consultant for
Yorkville and contains all of the covenants and agreements between the parties with respect to the
rendering of such services. Each party to this Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone
acting on behalf of any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or binding. Any modification of
this Agreement (including any exhibit hereto) will be effective if it is in writing and signed by the
party against whom it is sought to be enforced. Any ambiguities herein shall not be construed against
the drafter hereof.
Section 7.3 If any provision in this Agreement is held by a court of competent jurisdiction
to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full
force without being impaired or invalidated in any way.
Section 7.4 Any controversy between the parties hereto involving the construction or
application of any of the terms, covenants, or conditions of this Agreement will, on the written
request of one party served on the other, be submitted to binding arbitration in accordance with the
commercial rules and regulations of the American Arbitration Association. The arbitration shall take
place in Chicago, Illinois, or such other location mutually agreed to by the parties.
The arbitrator(s) shall be selected as follows: In the event that Yorkville, Centex, and
Consultant agree on one arbitrator, the arbitration shall be conducted by such arbitrator. In the event
Yorkville, Centex, and Consultant do not so agree, Yorkville, Centex, and Consultant shall each
select an arbitrator. The arbitrators shall act by majority vote. The parties may propose arbitrators
from JAMS, ADR, ARC or any independent arbitrator /neutral for dispute resolution. The parties are
not required to hire an American Arbitration Association arbitrator for resolution of a dispute
hereunder.
The decree or judgment of an award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof.
Section 7.5 The prevailing party in any arbitration or legal action brought by one party
against the other(s) and arising out of this Agreement shall be entitled, in addition to any other rights
and remedies it may have, to reimbursement for its expenses, including court costs and reasonable
attorneys' fees. The non - prevailing party(ies) shall be liable, to the extent allowable under law, for
all fees and expenses of the arbitrator(s) and all costs of the arbitration.
Section 7.6 This Agreement will be governed by and construed in accordance with the
laws of the State of Illinois.
United City of Yorkville — Centex Homes SSA No. 2005 -109 Page 6
Special Service Area Consulting Services January 4, 2006
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Section 7.7 This Agreement may be executed in multiple counterparts, each ofwhich shall
be deemed an original, but all of which taken together shall constitute one (1) and the same
instrument. This Agreement may be executed by electronic facsimile or similar means.
Section 7.8 No provision hereof may be waived except by a written agreement signed by
the waiving party. The waiver of any term or of any condition of this Agreement shall not be deemed
to constitute the waiver of any other term or condition.
Section 7.9 It is the parties' intention that there shall be no third party beneficiaries to this
Agreement.
Section 7.10 Exhibits "A" and "B" attached hereto are incorporated herein by this
reference.
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IN WITNESS WHEREOF, this Agreement has been executed on the date and year first
above written.
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UNITED CITY OF YORKVILLE
" YORKVILLE"
By:
Name:
Its:
CENTEX HOMES
"CENTEX'
By:
Name:
Its:
"CONSULTANT" DAVID TAUSSIG & ASSOCIATES, INC.
By:
David Taussig, President
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United City of Yorkville — Centex Homes SSA No. 2005 -109 Page 7
Special Service Area Consulting Services January 4, 2006
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EXHIBIT A
SPECIAL SERVICE AREA CONSULTING SERVICES
SCOPE OF WORK STATEMENT
SSA No. 2005 -109
(Bristol Bay Project)
Special Service Area ( "SSA ") No. 2005 -109 is anticipated to be established for Centex Homes for
the Bristol Bay project located in the United City of Yorkville, County of Kendall, State of Illinois
(the "Project "). This Scope of Work Statement describes consulting services to be provided by
Consultant to assist in the formation of the SSA No. 2005 -109.
1. Backe round Research
The Furnishing Parties shall provide to Consultant and Consultant will review, as necessary,
Project concept plan(s) and/or preliminary plat(s) of subdivision; County parcel/property
identification numbers (PIN) maps for the Project; property tax bills; development
assumptions (i.e., proposed land uses; gross and net acreage; residential product type, mix,
and floor areas; estimated absorption/velocity rates; and estimated raw, finished, and
improved property values); estimated public improvement costs (an engineer's opinion of
probable cost for all public improvements will be required), construction schedule, and
description; public improvement plans and/or drawings showing location of such
improvements; and annexation, development, and recapture /reimbursement agreements.
Consultant shall rely on such data provided by the Furnishing Parties and shall not be
responsible for verifying its accuracy.
2. Public Facilities Eli ib�ility
Consultant will review improvements proposed to be financed and evaluate eligibility under
the Special Service Area Act (the "Act "). Yorkville and Centex understand that bond counsel
will make final determination on improvement eligibility under the Act and shall be solely
responsible for interpretation of the Act.
3. SSA Bond Structure
As requested, Consultant will assist with the sizing and structure of the bonds. Discussion
topics may include level and increasing debt service, trade -offs between capitalized interest
and bond - financed facilities, required reserve funds, and escrowed bond proceeds, if
applicable.
4. Special Tax Annortionment Formula
Consultant will prepare the special tax apportionment methodology, subject to Yorkville
policy, financing objectives as well as statutory requirements, and bond counsel approval.
The apportionment methodology will require an examination of the use and benefit of the
public improvements to be financed. Typically, industry standard measurers of facilities
usage must support the desired apportionment formula. Consultant will also develop a
prepayment formula permitting the full and/or partial prepayment of the special tax levy. A
sample prepayment calculation will be prepared upon request.
United City of Yorkville — Centex Homes SSA No. 2005 -109 Page A.1
Special Service Area Consulting Services January 4, 2006
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5. SSA Pro Forma
Consultant will prepare up to ten (10) SSA cash flow projections or "pro formas" for SSA
No. 2005 -109 showing supportable bonded indebtedness, allocation of public improvements,
estimated annual administrative expenses, and maximum and projected special taxes. Centex
understands that bonded indebtedness will be constrained by a number of factors including
but not limited to bond interest rate and term, maximum special taxes, and the appraised
value to the SSA's debt ratio (e.g., the value to lien ratio) of the Project.
6. Special Tax Roll and Method of Apportionment Report
Consultant will prepare the special tax roll and method of apportionment report for SSA No.
2005 -109 (the "Special Tax Roll and Report"). The Special Tax Roll and Report will, as
appropriate, contain a Project description; public facilities description, phasing, and cost
estimate; narrative describing the basis for the public improvement cost allocation;
explanation of the special tax formula and prepayment methodology (i.e., the procedure for
determining the annual special tax and any prepayment amount, definitions for special tax
property classifications, including property to be exempt from the levy, and maximum
special tax levels); estimated bonded indebtedness and related issuance costs and incidental
expenses. Consultant will prepare up to five (5) drafts of the Special Tax Roll and Report.
7. Bond Documents
Consultant will assist the finance team, as appropriate, in the preparation, review, and
comment on the limited offering memorandum, infrastructure agreement, trust indenture, and
form of continuing disclosure; provided, however, that in no event shall any representations
be made in such legal and bond documents that Consultant has made any certification with
respect to certain sections of such documents unless the prior written consent of Consultant
is obtained. Consultant may also comment on appraisal and market study as requested.
8. Meetings
Consultant will attend up to three (3) meetings to present and/or discuss its work products
and the proposed formation of SSA No. 2005 -109 and issuance of bonds.
9. Disclosure of the Special Tax
As requested, Consultant shall assist in the preparation of disclosure materials, including
purchase contract riders, to be used by builders in the sale of homes and conduct an "SSA
Workshop" to educate builder sales staff concerning SSA No. 2005 -109.
United City of Yorkville — Centex Homes SSA No. 2005 -109 Page A.2
Special Service Area Consulting Services January 4, 2006
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EXHIBIT B
SPECIAL SERVICE AREA CONSULTING SERVICES
PROFESSIONAL FEE SCHEDULE
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Consultant's professional fees, excluding expenses, for Consulting Services set forth in the Scope of
Work Statement pertaining to the establishment of the Centex SSA No. 2005 -109 (the "SSA
Establishment Fees ") shall be $30,000. Consultant's professional fees, excluding expenses, for
Consulting Services set forth in the Scope of Work Statement pertaining to the issuance of each
series of bonds for SSA No. 2005 -109 (the "SSA Bond Fees ") shall be, $10,000. In addition,
Consultant shall be reimbursed for expenses in accordance with Section 3.2 of this Agreement, not
to exceed ten percent (10.0 %) of the sum of the applicable SSA Establishment Fees and SSA Bond
Fees.
II. GENERAL TERMS AND CONDITIONS
Centex shall pay the SSA Establishment Fees for SSA No. 2005 -109, the applicable SSA Bond Fees,
and Consultant's reimbursable expenses at the closing of the sale of the first series of bonds for SSA
No. 2005 -109. SSA Bond Fees and the associated reimbursable expenses for each subsequent series
of bonds shall be paid on the date of such bond closing. Consultant shall use commercially
{ reasonable efforts to forward the invoice to Centex seven (7) days before the date of each bond
closing. Such invoice shall contain the payment amount to be made by Centex to Consultant with
respect to each series of Bonds. The payment shall be made on the date of the bond closing.
Notwithstanding the foregoing, if the closing of the sale of the first series of bonds for the Centex
SSA No. 2005 -109 does not occur prior to June 30, 2006, Consultant shall be remunerated for
Consulting Services based on the hourly rates set forth in Table 1 below, plus expenses. Consultant
shall present to Centex as promptly as practicable after June 30, 2006 an invoice covering
Consulting Services and reimbursable expenses to date. Thereafter, on or about the first two weeks
of each month during which Consulting Services are rendered hereunder, Consultant shall present to
Centex an invoice covering the current Consulting Services performed and the reimbursable
expenses incurred pursuant to this Agreement and exhibits thereto for the preceding month. Such
invoices (each, a "Monthly Invoice ") shall be paid by Centex within thirty (30) days of the date of j
each invoice. A 1.2% per month (or the maximum amount permitted by law if less than 1.2 %)
charge may be imposed against accounts which are not paid within thirty (30) days of the date of
each invoice. At the time of the closing of the sale of the first series of bonds for Centex SSA No.
2005 -109, Consultant shall be paid the SSA Establishment Fees, the applicable SSA Bond Fees, and
Consultant's reimbursable expenses less the amounts paid pursuant to the Monthly Invoices.
United City of Yorkville — Centex Homes SSA No. 2005 -109 Page B.l
Special Service Area Consulting Services January 4, 2006
TABLE 1
CONSULTANT'S HOURLY RATES
President $250/hour
Senior Vice President $230/hour
Vice President $220/hour
Senior Manager $200/hour
Manager $190/hour
Senior Associate $165/hour
Associate $150/hour
Senior Analyst $140/hour
Analyst $120/hour
Research Assistant $100/hour
The hourly rates in Table 1 above apply for a twenty -four (24) -month period from execution of the
Agreement and are subject to a cost -of- living and/or other appropriate increase every twelve (12)
months thereafter. Consultant generally reviews its hourly rates annually and, if appropriate, adjusts
them to reflect increases in seniority, experience, cost -of- living, and other relevant factors.
Consultant shall notify Centex in advance of any such increase.
III. LIMITATIONS
The following Professional Fe Schedule n h f Work
limitations apply to he a a d/or t o Sco e o
g PP Y P
Statement:
• Limitation of three (3) meetings: Consultant will be remunerated on a time and materials
basis for attendance at more than 3 meetings;
• Limitation of ten (10) SSA pro formas: Consultant will be remunerated on a time and
materials basis for more than ten (10) such pro formas;
• Limitation of five (5) drafts of the Special Tax Roll and Report: Consultant will be
remunerated on a time and materials basis for preparation of more than five drafts of the
Special Tax Roll and Report;
• Consulting services pertaining to the billing and collection of the special tax shall be
covered under separate agreements;
• Analysis of an ad valorem based SSA shall be covered under separate agreement; and
• Any additional tasks not defined in the Scope of Work Statement shall be charged at the
hourly rates listed above.
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Special Service Area Consulting Services January 4, 2006
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Exbibit G
Agreement for Administrative Services
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CHI2 603856.3
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AGREEMENT FOR ADMINISTRATIVE SERVICES
THIS AGREEMENT is made and entered into this day of , 2006 by and between
the United City of Yorkville at 800 Game Farm Road, Yorkville, Illinois 60560, hereinafter called
"Yorkville" or "Client," and David Taussig & Associates, Inc., at 1301 Dove Street, Suite 600,
Newport Beach, CA 92660, hereinafter called "Consultant." The Client and the Consultant in
consideration of the mutual promises and conditions herein contained agree as follows.
ARTICLE I
TERM OF CONTRACT
Section 1.1 This agreement shall become effective on the date stated above and will
continue in effect until terminated as provided in Article 6 below.
ARTICLE II
SERVICES TO BE PERFORMED BY CONSULTANT
Section 2.1 Consultant agrees to perform the professional services for the Client and to
deliver the work products to the Client as described in the Scope of Work statement attached as
Exhibit "A" hereto. Such professional services and work products, as from time to time modified in
accordance with Section 2.3 hereof, are collectively referred to as the "Administrative Services."
Section 2.2 Consultant will determine the method, details and means of performing the
Administrative Services. Consultant may, at Consultant's own expense, employ such assistance as it
deems necessary to perform the Administrative Services required by Client under this Agreement.
Consultant shall conduct research and arrive at conclusions with respect to its rendition of
information, advice, recommendation or counsel independent of the control and direction of the
Client, other than normal contract monitoring. All computer software (including without limitation
financial models, compilations of formulas and spreadsheet models), inventions, designs, programs,
improvements, processes and methods (collectively, the "Proprietary Models ") used or developed by
Consultant in performing its work is proprietary and shall remain property owned solely by, or
licensed by a third party to Consultant. Client acknowledges and agrees that the consideration paid
by Client herein only entitles Client to a license to use the hard copy or electronically transmitted
reports generated pursuant to the Administrative Services and that any Proprietary Model that
Consultant uses to generate such reports is owned by, or is duly licensed from a third party to
Consultant and is not being provided to Client hereunder. Client acknowledges and agrees that
Consultant has the right to use the reports and analyses that it authors pursuant to this Agreement as
base works or templates for reports and analyses that Consultant authors for Consultant's other
clients, provided, however, that Consultant shall not use any confidential information provided by
Client in such future reports and analyses. Client acknowledges and agrees that Consultant has spent
substantial time and effort in collection and compiling data and information (the "Data
Compilations ") in connection with the Administrative Services and that such Data Compilations may
be used by Consultant for its own purposes, including, without limitation, sale or distribution to third
parties; provided, however, that Consultant will not sell , or distribute any of Client's confidential
information that may be contained in such Data Compilations, unless such confidential information
is used only on an aggregated and anonymous basis.
Section 2.3 Any proposed changes in the Administrative Services hereunder shall be
submitted to the other party hereto, and any such changes agreed to by the parties shall be reflected
in an amendment to Exhibit "A" in accordance with Section 7.2 hereto.
Section 2.4 Nothing in this Agreement shall give the Consultant possession of authority
with respect to any Client decision beyond the rendition of information, advice, recommendation or
counsel.
ARTICLE III
COMPENSATION
Section 3.1 Client agrees to pay Consultant for its Administrative Services a professional
fee computed according to the Fee Schedule attached as Exhibit "B" hereto.
Section 3.2 On or about the first two weeks of each quarter, in accordance with the Fee
Schedule, Consultant shall present to Client an invoice. Such invoices shall be paid by Client within
thirty (30) days of the date of each invoice solely from monies on deposit in the administrative
expense fund created under the Indenture. A 1.2% charge may be imposed against accounts which
are not paid within 30 days of the date of each invoice.
Section 3.3 The maximum total fee amount set forth in Exhibit "B" may be increased as a
result of any expansion of the Administrative Services to be rendered hereunder pursuant to Section
2.3 or as provided in Exhibit "A" hereto.
Section 3.4 Records of the Consultant's costs relating to (i) the Administrative Services
performed under this Agreement and (ii) reimbursable expenses shall be kept and be available to the
Client or to Client's authorized representative at reasonable intervals during normal business hours.
ARTICLE IV
OTHER OBLIGATIONS OF CONSULTANT
Section 4.1 Consultant agrees to perform the Administrative Services in accordance with
Exhibit "A." Should any errors caused by Consultant's negligence be found in such services or
products, Consultant will correct them at no additional charge by revising the work products called
for in Exhibit "A" to eliminate the errors. Consultant's contribution toward all obligations, losses,
liabilities, damages, claims, attachments, executions, demands, actions and/or proceedings and all
costs and expenses in connection therewith, including reasonable attorneys' fees, arising out of or
connected with the performance of Consultant's Administrative Services under this Agreement,
except as may arise from Consultant's willful misconduct or gross negligence, shall in no event
exceed the amounts received by Consultant under this Agreement.
Section 4.2 Consultant will supply all tools and instrumentalities required to perform the
Administrative Services under the Agreement.
Section 4.3 Neither this Agreement nor any duties or obligations under this Agreement
David Taussig & Associates, Inc. Page 2
United City of Yorkville SSA No. 2005 -109 February 21, 2006
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may be assigned by Consultant without the prior written consent of Client. However, Consultant
may subcontract portions of the work to be performed hereunder to other persons or concerns
provided Consultant notifies Client of the name and address of said proposed subcontractor and
Client either consents or fails to respond to notification with respect to the use of any particular
proposed subcontractor.
Section 4.4 In the performance of its Administrative Service hereunder, Consultant is, and
shall be deemed to be for all purposes, an independent contractor (and not an agent, officer,
employee or representative of Client) under any and all laws, whether existing or future. Consultant
is not authorized to make any representation, contract or commitment on behalf of Client.
ARTICLE V
OTHER OBLIGATIONS OF CLIENT
Section 5.1 Client agrees to comply with all reasonable requests of Consultant and
provide access to all documents reasonably necessary to the performance of Consultant's duties
under this Agreement with the exception of those documents which Exhibit "A" calls upon the
Consultant to prepare.
Section 5.2 Neither this Agreement nor any duties or obligations under this Agreement
may be assigned by Client without the prior written consent of Consultant.
Section 5.3 The Client, County of Kendall, and other public agencies, property owners,
consultants and other parties dealing with Client or involved in the subject special service areas
referred to in Exhibit "A" will be furnishing to Consultant various data, reports, studies, computer
printouts and other information and representations as to the facts involved in the special service
areas which Client understands Consultant will be using and relying upon in preparing the reports,
studies, computer printouts and other work products called for by Exhibit "A." Consultant shall not
be obligated to establish or verify the accuracy of the information furnished by or on behalf of
Client, nor shall Consultant be responsible for the impact or effect on its work products of the
information furnished by or on behalf of Client, in the event that such information is in error and
therefore introduces error into Consultant's work products.
Section 5.4 In the event that court appearances, testimony or depositions are required of
Consultant by Client in connection with the services rendered hereunder, Client shall compensate
Consultant at a rate of $250 per hour and shall reimburse Consultant for out -of- pocket expenses on a
cost basis.
ARTICLE VI
TERMINATION OF AGREEMENT
Section 6.1 Either party may terminate or suspend this Agreement upon thirty days (30)
written notice. Unless terminated as provided herein, this Agreement shall continue in force until the
Administrative Services set forth in Exhibit "A" have been fully and completely performed and all
proper invoices have been rendered and paid.
Section 6.2 Should either party default in the ofthis Agreement or materially
breach any of its provisions, the other party at its option may terminate this Agreement by giving
written notification to the defaulting party. Such termination shall be effective upon receipt by the
David Taussig & Associates, Inc Page 3
United City of Yorkville SSA No. 2005 -109 February 21, 2006
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defaulting party, provided that the defaulting party shall be allowed ten (10) days in which to cure
any default following receipt of notice of same.
Section 6.3 The covenants contained in Sections 2.2, 3.1, 4.1, 5.3, 5.4, 6.3, and all of
Article VII shall survive the termination of this Agreement.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Any notices to be given hereunder by either party to the other may be effected
either by personal delivery in writing or by mail. Mailed notices shall be addressed to the parties at
the addresses appearing in the introductory paragraph of this Agreement, but each party may change
the address by written notice in accordance with the first sentence of this Section 7.1. Notices
delivered personally will be deemed communicated as of actual receipt. Mailed notices will be
deemed communicated as of two (2) days after mailing. i.
Section 7.2 This Agreement and exhibits hereto supersede any and all agreements, either
oral or written, between the parties hereto with respect to the rendering of service by Consultant for
Client and contains all of the covenants and agreements between the parties with respect to the
rendering of such services. Each party to this Agreement acknowledges that no representations,
inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone
acting on behalf of any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or binding. Any modification of
this Agreement (including any exhibit hereto) will be effective if it is in writing and signed by the
parry against whom it is sought to be enforced.
Section 7.3 If any provision in this Agreement is held by a court of competent jurisdiction
to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full
force without being impaired or invalidated in any way.
Section 7.4 Any controversy between the parties hereto involving the construction or
application of any of the terms, covenants, or conditions of this Agreement will, on the written
request of one party served on the other, be submitted to binding arbitration in accordance with the
commercial rules and regulations of the American Arbitration Association. The arbitration shall take
place in Chicago, Illinois, or such other location mutually agreed to by the parties.
The arbitrator(s) shall be selected as follows: In the event that Consultant and Client agree on
one arbitrator, the arbitration shall be conducted by such arbitrator. In the event Consultant and
Client do not so agree, Consultant and Client shall each select an arbitrator and the two arbitrators so
selected shall select the third arbitrator. If there is more than one arbitrator, the arbitrators shall act
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by majority vote.
The decree or judgement of an award rendered by the arbitrator(s) may be entered in any
court having jurisdiction thereof. The parties may propose arbitrators from JAMS, ADR, ARC or
any independent arbitrator /neutral for dispute resolution. The parties are not required to hire a triple
A arbitrator for resolution of a dispute hereunder.
Section 7.5 The prevailing party in any arbitration or legal action brought by one party
against the other and arising out of this Agreement shall be entitled, in addition to any other rights
David Taussig & Associates, Inc Page 4
United City of Yorkville SSA No. 2005 -109 February 21, 2006
and remedies it may have, to reimbursement for its expenses, including court costs and reasonable
attorneys' fees. The non - prevailing party shall be liable, to the extent allowable under law, for all
fees and expenses of the arbitrator(s) and all costs of the arbitration.
Section 7.6 This Agreement will be governed by and construed in accordance with the
laws of the State of Illinois.
IN WITNESS WHEREOF, this Agreement has been executed on the date and year first above
written.
CLIENT: United City of Yorkville
By:
Date:
CONSULTANT: David Taussig & Associates, Inc.
B
David Taussig, President
i Date:
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United City of Yorkville SSA No. 2005 -109 February 21, 2006
Exhibit A - Scope of Work
Please note that the Scope of Work statement is predicated on the assumption that the special taxes
for Special Service Area No. 2005 -109 (hereinafter called "SSA ") will be billed and collected by the
i County of Kendall (the "County "). The Scope of Work statement for the administration of the SSA is
comprised of those services associated with the annual calculation and billing of the special taxes,
review of bond funds and accounts, responses to taxpayer inquiries (i.e., phone calls, prepayment
requests, builder education/coordination), determination of arbitrage /rebate liability, and the
reporting of certain information as set forth in the Indenture as follows:
Task 1: Development Research and SSA Parcel Database
This task involves gathering and organizing the information required to establish and maintain a
parcel database necessary to extend, bill, and collect the special taxes, pursuant to the SSA Special
Tax Roll and Report, and includes the following:
1.1 Subdivision Research: Coordinate with Yorkville and Centex Homes Homes (the
"Builder ") to obtain copies of all final plats. Identify recording date, property use,
acreage, and the lot, block and unit numbers, as applicable, for each new parcel.
1.2 Permanent Index Numbers: Coordinate with County to determine valid Permanent
Index Numbers ( "PIN") for the coming year and obtain new cadastral maps.
1.3 Classification of Property: Assign each parcel to the appropriate special tax
classification in accordance with the SSA Special Tax Roll and Report.
1.4 SSA Parcel Database: Establish and maintain parcel database for the SSA that will
include all relevant PINS, property data, and special tax characteristics.
Task 2: Special Tax Reauirement Calculation and Special Tax Abatement
This task involves calculating the amount of special tax to be abated for the SSA and includes the
following subtasks:
2.1 Bond Funds Accountability Analysis: This task involves the review and analysis of
account statements for the funds and accounts maintained by the trustee. Consultant
will prepare a monthly report, which summarizes the activity for each fund and
account and evaluates flow of funds for consistency with the Indenture or other
controlling documents. When necessary, Consultant will communicate our findings
with Yorkville or trustee.
2.2 Determine Annual Expenses: Identify the SSA's expenses including annual debt
service, administrative expenses, and provision for delinquencies.
2.3 Year -End Reconciliation: Prepare year -end reconciliation to determine surplus
funds, if any, in the bond funds and accounts, interest earnings, and other credits that
may be applied to toward the abatement of the special tax.
2.4 Extension of Special Taxes: Extend the required special taxes to each PIN pursuant
to the SSA Special Tax Roll and Report and determine the resulting amount to be
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United City of Yorkville SSA No. 2005 -109 February 21, 2006
abated, if any.
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Task 3: Report Preparation
This task includes the preparation of an annual report for the SSA, which will generally contain the
following:
j • Brief Development Summary
• Flow of Funds Summary
• Special Tax Collection, Tax Sale, and Foreclosure Status
• Bond Fund and Account Balance Summary
• Special Tax Requirement Calculation
• Current Equalized Assessed Value
• Estimated New Value -to -Lien Ratio
Current Ad Valorem Property Tax Rates
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The contents of the annual report will include the information necessary to satisfy the reporting
requirements as set forth in Section 8.6(ii) of the Indenture.
Task 4: Billing of the Special Tax
This task involves coordination with and assistance to the County, as needed, to facilitate the billing
of the special tax. The following subtasks are included:
4.1 Special Tax Roll: For the SSA, Consultant will prepare a special tax roll listing each
PIN and the corresponding maximum special tax, special tax amount abated, and
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special tax amount to be billed.
4.2 Transmittal to County: The special tax rolls will be transmitted to the County in
hard copy and/or electronic form as specified by the County, along with a certified
copy of the abatement ordinances, to be provided to Consultant by Yorkville, in hard
copy and electronic form as specified by the County.
4.3 Coordination with Assessor: As requested, Consultant will assist the applicable
Township Assessor determine the average public improvements allocable to
properties in the SSA.
Task 5: Assistance with Delinquent Special Taxes
As needed, Consultant will assist in the monitoring of special tax receipts and collection of
delinquent special taxes. The following subtasks are included:
5.1 Special Tax Receipts: Consultant will review the special tax distribution reports
provided by the County to monitor and record the collection of special taxes. At
Client's request, Consultant will arrange for the automatic wire transfer of special tax
receipts to the trustee, provided the County and trustee can accommodate an
electronic transfer of special taxes. Consultant will request and review the County's
unpaid list to determine the payment status of each individual PIN. As needed,
Consultant will record this data in a special tax payment database and prepare an
annual delinquent special tax report for distribution to Yorkville, County, trustee, and
other interested parties.
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United City of Yorkville SSA No. 2005 -109 February 21, 2006
5.2 Demand Letters: This task entails the preparation and mailing of demand letters to
the property owners that remain delinquent in the payment of special taxes after the
County has conducted its tax sale (or such other date as specified in the Indenture).
Consultant will prepare a draft demand letter for review and approval by Yorkville
staff and counsel. After the form of the demand letter is approved, Consultant will
print and mail the demand letters to property owners.
5.3 Coordination with Property Owners: Consultant will respond to telephone calls
from property owners who have questions regarding the payment of the delinquent
special taxes.
5.4 Foreclosure: This task involves assistance with the foreclosure of the special taxes
that remain delinquent after the follow -up process. Consultant assumes that at this
stage in the collection process Yorkville will retain legal counsel to pursue
foreclosure. Therefore, out services will consist of the preparation of materials
detailing the delinquent special taxes, penalties, and interest.
Task 6: Special Tax Prevavments
This task entails the calculation of prepayment amounts and coordination with the trustee and
associated record keeping in the event any special tax is prepaid. This task includes the following
subtasks:
6.1 Prepayment Calculation: Upon request, Consultant will calculate the amount
needed to prepay the special tax pursuant to the prepayment formula as set forth in
the SSA Special Tax Roll and Report. The prepayment information provided will
identify the amount due, the deadline for payment, and direction regarding where
payment is to be remitted.
6.2 Bond Redemption: This task involves analysis of the early redemption of bonds
resulting from the prepayment of special taxes. Consultant will coordinate with the
trustee to ensure the proper application of such funds and review the resulting
revised debt service schedule.
Task 7: Taxvaver Inquiries
This task involves responding to telephone calls from prospective or current property owners or
other interested parties who have questions regarding the SSA. This task includes brief written
responses to property owners as necessary. In order to efficiently and effectively handle these
property owner's requests, Consultant has a toll -free number for property owners who have
questions.
Task 8: Homeowner Disclosure
This task involves the review of Builder disclosure materials and periodic monitoring, as determined
by Consultant, of information pertaining to the SSA provided by Builder's sales staff to prospective
home buyers. Consultant may, at its discretion, pose as prospective buyer to evaluate Builder sales
staffs knowledge of the SSA.
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Task 9: Arbitrage/Rebate Calculation
This task encompasses those activities associated with computing the rebate liability of the bonds
sold on behalf of the SSA.
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United City of Yorkville SSA No. 2005 -109 February 21, 2006
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Exhibit B — Fee Schedule
PROFESSIONAL FEES
Consultant's annual compensation for Tasks 1 through 8 of the Scope of Work statement is a fixed
fee of $12,000 plus expenses, with an additional $1,000 for each parity bond issue. Consultant's
compensation for Task 9 is $3,000 per bond issue for the initial annual calculation, and $2, 500 per
bond issue per year for subsequent years; note, additional fees will be incurred for transferred
proceeds analysis, commingled funds analysis, final or five year report, or computation periods in
excess of twelve months.
GENERAL TERMS AND CONDITIONS
The preceding annual professional fees shall be billed in four equal installments, with invoices
submitted by Consultant to Client on or about the first two weeks of each quarter. Such invoices
shall be paid by Client within thirty (30) days of the date of each invoice solely from monies on
deposit in the administrative expense fund created under the Indenture. A 1.2% charge may be
imposed against accounts that are not paid within 30 days of the date of each invoice.
At Client's request, services in addition to those identified in the Scope of Work statement may be
provided. Unless otherwise agreed to by Client and Consultant, any additional tasks assigned by
Client shall be charged at the hourly rates listed below.
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TABLE 1
CONSULTANT'S HOURLY RATES j
President $250/hour
Senior Vice President $230/hour
Vice President $220/hour
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Senior Manager $200/hour
Manager $190/hour
Senior Associate $165/hour
Associate $150/hour
Senior Analyst $140/hour
Analyst $120/hour
Research Assistant $100/hour
Such additional tasks may include, but are not be limited to, the following:
• Manual billing of special taxes;
• Administration of variable rate bonds;
• Attendance, other than via telephone, at meetings with property owners or Yorkville staff to
answer questions, review the levy, or resolve disputes regarding the calculation of the special
tax;
• Assistance with workshops, seminars, etc. concerning disclosure of the special tax;
• Preparation and dissemination of continuing disclosure reports in accordance with Security
and Exchange Commission Rule 15c2 -12; and
• Assumption of dissemination agent responsibilities for developer continuing disclosure
reports, if any.
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United City of Yorkville SSA No. 2005 -109 February 21, 2006
The preceding lump sum professional fees and hourly rates apply for a 24 month period from
execution of the Agreement and are subject to a cost -of- living and/or other appropriate increase
every 12 months thereafter. Consultant generally reviews its professional fees and hourly rates
annually and, if appropriate, adjusts them to reflect increases in seniority, experience, cost -of- living,
and other relevant factors. Consultant shall notify Client in advance of any such increase.
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