093_SB1601eng

 
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 1        AN ACT concerning finance.

 2        WHEREAS,   The   General   Assembly   takes   note   that
 3    governmental  units  in  the  State  must borrow funds in the
 4    current bond market, and  the  issuance  of  bonds  or  other
 5    obligations as what are commonly referred to as variable rate
 6    demand  bonds,  auction  bonds,  or commercial paper bonds is
 7    ever increasing, and is frequently  the  most  advisable  and
 8    economic means of borrowing; and

 9        WHEREAS,  It is sometimes most advantageous in connection
10    with such borrowings to enter  into  cap,  collar,  swap,  or
11    other  derivative  transactions  relating  to  interest rates
12    which serve to hedge interest rate risk and it is  frequently
13    necessary to procure credit enhancement in the forms commonly
14    referred  to  as municipal bond insurance, letters of credit,
15    lines of credit, standby bond purchase agreements, or  surety
16    bonds,  and  the  like,  in  such  demand  bond  and  similar
17    transactions; and

18        WHEREAS,  Existing  law authorizes such transactions, but
19    it is advisable for the  law  to  be  more  fully  stated  to
20    accommodate  same,  expressly  permitting  certain aspects of
21    such transactions; therefore

22        Be it enacted by the People of  the  State  of  Illinois,
23    represented in the General Assembly:

24        Section  5.   The  Bond  Authorization  Act is amended by
25    changing Section 7 as follows:

26        (30 ILCS 305/7) (from Ch. 17, par. 6607)
27        Sec.  7.  Interest  rate  swaps.  For  purposes  of  this
28    Section, terms are as defined in the  Local  Government  Debt
29    Reform  Act.  With  respect  to  all or part of any currently
 
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 1    outstanding or proposed issue of its  bonds,  a  governmental
 2    unit  public  corporation whose aggregate principal amount of
 3    bonds  outstanding  or  proposed  exceeds  $10,000,000   may,
 4    without   prior   appropriation,  enter  into  agreements  or
 5    contracts with  any  necessary  or  appropriate  person  (the
 6    counter party) that will have the benefit of providing to the
 7    governmental  unit:  (i)  public corporation an interest rate
 8    basis, cash flow basis, or other basis  different  from  that
 9    provided  in  the  bonds  for the payment of interest or (ii)
10    with respect to a future delivery of bonds, one or more of  a
11    guaranteed  interest  rate,  interest  rate  basis, cash flow
12    basis, or purchase price.     Such  agreements  or  contracts
13    include  without  limitation agreements or contracts commonly
14    known as "interest rate  swap,  collar,  cap,  or  derivative
15    agreements",   "forward   payment   conversion   agreements",
16    interest  rate  locks, forward bond purchase agreements, bond
17    warrant agreements, or bond purchase  option  agreements  and
18    also  include  agreements or contracts providing for payments
19    based on levels of or changes in interest rates, including  a
20    change in an interest rate index, to exchange cash flows or a
21    series  of  payments,  or  to  hedge payment, rate spread, or
22    similar exposure (such agreements or contracts, collectively,
23    being "swaps").  Without limiting other permitted terms which
24    may be included in swaps, the following provisions may or, if
25    hereinafter so required, shall apply:
26        (a) Payments made pursuant to a swap (the swap  payments)
27    which  are to be made by the governmental unit may be paid by
28    such governmental unit, without limitation, from proceeds  of
29    the bonds, including bonds for future delivery, identified to
30    such  swaps,  or  from  bonds issued to refund such bonds, or
31    from  whatever  enterprise  revenues   or   revenue   source,
32    including  taxes  pledged  or to be pledged to the payment of
33    such bonds, which enterprise revenues or revenue  source  may
34    be increased to make such swap payments, and swap payments to
 
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 1    be  received by the governmental unit, which may be periodic,
 2    up-front, or on termination, shall be  used  solely  for  and
 3    limited  to  any lawful corporate purpose of the governmental
 4    unit.
 5        (b)  Up-front or periodic net swap payments to be paid by
 6    the governmental unit under  the  swaps  (the  standard  swap
 7    payments)  such  agreements  or contracts shall be treated as
 8    interest for the purpose of  calculating  any  interest  rate
 9    limit  applicable  to  the bonds, provided, however, that for
10    purposes of making such standard swap payments only (and  not
11    with  respect  to  the  bonds so issued or to be issued), the
12    bonds shall be deemed not exempt from income  taxation  under
13    the  Internal  Revenue  Code  for  purposes  of State law, as
14    contained in this Bond Authorization  Act,  relating  to  the
15    permissible  rate  of  interest  to  be  borne  thereon, and,
16    provided further, that  if  payments  of  any  standard  swap
17    payments  are  to  be  made  by the governmental unit and the
18    counterparty on different  dates,  the  net  effect  of  such
19    payments  for purposes of such interest rate limitation shall
20    be determined using a true interest cost (yield) calculation.
21        (c)  Any such agreement or contract and the swap payments
22    to be made thereunder shall not be taken  into  account  with
23    respect to any debt limit applicable to the governmental unit
24    public corporation.
25        (d)  Swap  payments  upon the termination of any swap may
26    be paid to a counterparty upon any terms customary for swaps,
27    including,  without  limitation,  provisions   using   market
28    quotations  available  for giving the net benefit of the swap
29    at the time of termination to the  persons  entitled  thereto
30    (viz.,   the   governmental  unit  or  the  counterparty)  or
31    reasonable fair market value determinations of the  value  at
32    termination made in good faith by either such persons.
33        (e)  The  term  of  the swap shall not exceed the term of
34    any currently outstanding bonds identified to such  swap  or,
 
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 1    for  bonds to be delivered, not greater than 5 years plus the
 2    term of years proposed for such bonds to be delivered, but in
 3    no event longer than 40 years, plus, in each case,  any  time
 4    period necessary to cure any defaults under such swap.
 5        (f)  The choice of law for enforcement of swaps as to any
 6    counterparty  may  be  made  for  any  state  of these United
 7    States, but the law which shall apply to the  obligations  of
 8    the  governmental  unit  shall  be  the  law  of the State of
 9    Illinois, and jurisdiction to enforce the  swaps  as  against
10    the  governmental units shall be exclusively in the courts of
11    the State of Illinois or  in  the  applicable  federal  court
12    having jurisdiction and located within the State of Illinois.
13        (g)  Governmental  units, in entering into swaps, may not
14    waive any sovereign immunities from time  to  time  available
15    under  the  laws of the State of Illinois as to jurisdiction,
16    procedures, and remedies, but such swaps shall  otherwise  be
17    fully  enforceable  as  valid and binding contracts as and to
18    the extent provided herein and by other applicable law.
19    (Source: P.A. 87-1176.)

20        Section 10.  The Local Government Credit Enhancement  Act
21    is amended by changing Sections 2 and 3 as follows:

22        (50 ILCS 410/2) (from Ch. 85, par. 4302)
23        Sec.  2.  For  the  purposes  of  this  Act, terms are as
24    defined in the Local Government Debt Reform Act.  unless  the
25    context requires otherwise:
26        (a)  "Unit  of  local  government" shall have the meaning
27    ascribed to it in Article VII,  Section  1  of  the  Illinois
28    Constitution.
29        (b)  "School  district"  means any public school district
30    organized under the School Code or prior law and includes any
31    dual or unit school district, high school  district,  special
32    charter  district  and  non-high  school  district.   "School
 
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 1    district" also means any community college district organized
 2    under the Public Community College Act or prior law.
 3        (c)  "Governing board" means the corporate authorities of
 4    the municipality, county board, board of trustees,  board  of
 5    education, board of school directors, or other governing body
 6    of the unit of local government or school district.
 7    (Source: P.A. 83-1536.)

 8        (50 ILCS 410/3) (from Ch. 85, par. 4303)
 9        Sec. 3.  In connection with the issuance of its bonds and
10    notes,  a  governmental  unit  of  local government or school
11    district  may  enter  into  agreements  (credit   agreements)
12    arrangements to provide additional security or and liquidity,
13    or both, for the bonds and notes.  These may include, without
14    limitation,  municipal  bond  insurance,  letters  of credit,
15    lines of credit, standby  bond  purchase  agreements,  surety
16    bonds,  and the like, by which the governmental unit of local
17    government or school district may  borrow  funds  to  pay  or
18    redeem or purchase and hold its bonds and a governmental unit
19    may  enter into agreements for the purchase or remarketing of
20    bonds (remarketing agreements) arrangements for  providing  a
21    mechanism  for  remarketing  bonds  tendered  for purchase in
22    accordance  with  their  terms.  The  term  of  such   credit
23    agreements  or  remarketing  agreements  shall not exceed the
24    term of the bonds, plus any time period necessary to cure any
25    defaults under such agreements assuring the ability of owners
26    of the issuing local government's or school district's  bonds
27    to  sell  or to have redeemed their bonds.  The unit of local
28    government or school district may enter  into  contracts  and
29    may agree to pay fees to persons providing such arrangements,
30    including from bond proceeds.
31        Without  limiting  the terms which may be included in any
32    such  credit  agreements  or  remarketing   agreements,   the
33    ordinance  The  resolution of the governing board authorizing
 
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 1    the issuance of the bonds may or, if hereinafter so required,
 2    shall provide as follows:
 3        (a) that Interest rates on the bonds may vary  from  time
 4    to  time depending upon criteria established by the governing
 5    body board, which may include,  without  limitation:  (i),  a
 6    variation  in  interest  rates  as  may be necessary to cause
 7    bonds to be remarketed remarketable from time to  time  at  a
 8    price  equal  to  their  principal  amount  plus  any accrued
 9    interest; (ii) rates set by auctions; or (iii) rates  set  by
10    formula. and may provide for appointment of,
11        (b)  A national banking association, bank, trust company,
12    investment  banker  or  other  financial  institution  may be
13    appointed to serve as a remarketing agent in that connection,
14    and such remarketing agent may be delegated authority by  the
15    governing body to determine interest rates in accordance with
16    criteria  established  by the governing body.  The resolution
17    of the governing board authorizing the issuance of the  bonds
18    may provide that
19        (c)  Alternative  interest  rates  or provisions may will
20    apply during such times as the bonds are held by the a person
21    or persons (financial providers) providing a credit agreement
22    or remarketing agreement letter of  credit  or  other  credit
23    enhancement  arrangement  for  those  bonds  and  during such
24    times, the interest on the bonds may  be  deemed  not  exempt
25    from  income  taxation  under  the  Internal Revenue Code for
26    purposes of State law, as contained in the Bond Authorization
27    Act, relating to the permissible rate of interest to be borne
28    thereon.
29        (d)  Fees  may  be  paid  to  the  financial   providers,
30    including  all  reasonably  related  costs, including therein
31    costs of enforcement and litigation (all such fees and  costs
32    being  financial  provider  payments)  and financial provider
33    payments may be paid, without limitation,  from  proceeds  of
34    the bonds being the subject of such agreements, or from bonds
 
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 1    issued  to  refund  such  bonds,  or from whatever enterprise
 2    revenues or revenue source, including taxes, pledged  to  the
 3    payment  of  such bonds, which enterprise revenues or revenue
 4    source may be  increased  to  make  such  financial  provider
 5    payments,  and such financial provider payments shall be made
 6    subordinate to the payments on the bonds.
 7        (e)  The bonds need not be held in physical form  by  the
 8    financial providers when providing funds to purchase or carry
 9    the   bonds   from   others   but   may   be  represented  in
10    uncertificated form in the credit agreements  or  remarketing
11    agreements.
12        (f)  The  debt  or  obligation  of  the governmental unit
13    represented by a bond tendered for purchase to  or  otherwise
14    made   available  to  the  governmental  unit  and  thereupon
15    acquired by either such  governmental  unit  or  a  financial
16    provider  shall not be deemed to be extinguished for purposes
17    of State law until cancelled by the governmental unit or  its
18    agent.
19        (g)  The choice of law for the obligations of a financial
20    provider  may  be  made for any state of these United States,
21    but the law which shall  apply  to  the  obligations  of  the
22    governmental  unit shall be the law of the State of Illinois,
23    and  jurisdiction  to  enforce  such  credit   agreement   or
24    remarketing  agreement as against the governmental unit shall
25    be exclusively in the courts of the State of Illinois  or  in
26    the  applicable federal court having jurisdiction and located
27    within the State of Illinois.
28        (h)  The governmental unit may not  waive  any  sovereign
29    immunities  from time to time available under the laws of the
30    State  of  Illinois  as  to  jurisdiction,  procedures,   and
31    remedies,  but  any  such  credit  agreement  and remarketing
32    agreement shall otherwise by fully enforceable as  valid  and
33    binding contracts as and to the extent provided by applicable
34    law.
 
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 1        (i)  Such  credit  agreement or remarketing agreement may
 2    provide for acceleration of the principal amounts due on  the
 3    bonds,  provided,  however,  that  such acceleration shall be
 4    deferred for not less than 18 months from the time  any  such
 5    bond is acquired pursuant to any such agreement.
 6    (Source: P.A. 83-1536.)