0596ORDINANCE NO. ~
ORDINANCE authorizing the issuance of "CITY OF
SOUTHLAKE, TEXAS, GENERAL OBLIGATION REFUNDING AND
IMPROVEMENT BONDS, SERIES 1993"; specifying the terms and
features of said bonds; levying a continuing direct annual
ad valorem tax for the payment of said bonds; and resolving
other matters incident and related to the issuance, sale,
payment and delivery of said bonds, including the approval
and execution of a Paying Agent/Registrar Agreement, a
Purchase Contract and Special Escrow Agreement and the
approval and distribution of an official Statement
pertaining thereto; and providing an effective date.
WHEREAS, the City Council of the City of Southlake, Texas (the
"City") has heretofore issued, sold, and delivered, and there is
currently outstanding obligations totalling in principal amount
$2,815,000 of the following issues or series (hereinafter called
collectively called the "Refunded Obligations Bonds"), to wit:
(1) City of Southlake, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series 1990,
dated August 1, 1990, maturing on February 1 in
each of the years 2002 through 2011, and
aggregating in principal amount
$ 745,000
(2) City of Southlake, Texas, General
Obligation Refunding Bonds, Series 1990, dated
March 1, 1990, maturing on February 1 in each of
the years 2002 through 2009, and aggregating in
in principal amount
$2,070,000
AND WHEREAS, pursuant to the provisions of Article 717k,
V.A.T.C.S., as amended, the City Council is authorized to issue
refunding bonds and deposit the proceeds of sale thereof directly
with the place of payment for the Refunded Obligations, and such
deposit, when made in accordance with said snatute, shall
constitute the making of firm banking and financial arrangements
for the discharge and final payment of the Refunded Obligations;
and
WHEREAS, the City Council hereby finds and dete~ines that the
Refunded Obligations should be refunded at this time ~o restructure
the debt service repayment schedule for such indebtedness to
incorporate the new money bonds identified below and provide for a
level debt service repayment schedule on the City's outstanding
general obligation indebtedness, and the city Council further
recognizes that such refunding will result in a present value
0117994
savings on such Refunded Obligations of approximately $
while adding approximately $ in future debt service
payments on such indebtedness; and
WHEREAS, in addition to the bonds to be issued for refunding
purposes, the City Council hereby finds and determines that the
balance of the unissued general obligation bonds approved and
authorized at an election held May 2, 1992 in the principal amount
of $3,000,000 should be issued and sold at this time; and
WHEREAS, the City Council hereby finds and determines that the
general obligation bonds for refunding purposes and the general
obligation bonds voted at the aforesaid election should be issued
and sold at this time as one series or issue; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE,
TEXAS:
SECTION 1: Authorization-Desiqnation-Principal Amount-
Purpose - Date. General obligation bonds of the City shall be and
are hereby authorized to be issued in the aggregate principal
amount of $ to be designated and bear the title
"CITY OF SOUTHLAKE, TEXAS, GENERAL OBLIGATION REFUNDING AND
IMPROVEMENT BONDS, SERIES 1993" (hereinafter referred to as the
"Bonds"), for the purpose of providing funds for the discharge and
final payment of certain outstanding obligations of the City
(identified in the preamble hereof and referred to as the "Refunded
Obligations") and the payment of costs of issuance and to provide
funds in the amount of $3,000,000 for permanent public improvements
and public purposes, to wit: street improvements, including
drainage incidental thereto and the acquisition of right-of-way
therefor; all in accordance with authority conferred by and in
conformity with the Constitution and laws of the State of Texas,
including Articles 1175 and 717k, V.A.T.C.S., as amended.
SECTION 2: Fully Reqistered Obliqations - Bond Date -
Authorized Denominations - Stated Maturities - Interest Rates. The
Bonds shall be issued as fully registered obligations only, shall
be dated October 1, 1993 (the "Issue Date"), shall be in
denominations of $5,000 or any integral multiple (within a Stated
Maturity) thereof, and shall become due and payable on August 15 in
each of the years and in principal amounts (the "Stated
Maturities") and bear interest at the rate(s) per annum in
accordance with the following schedule:
EXHIBIT 0
SPECIAL ESCROW AGREEMENT
THE STATE OF TEXAS
COUNTY OF DALLAS
§
S
S
THIS SPECIAL ESCROW AGREEMENT (the "Agreement"), made and
entered into as of October 19, 1993, by and between the City of
Southlake, Texas, a duly incorporated municipal corporation in
Tarrant County, Texas (the "city") acting by and through the Mayor
and City Secretary, and Texas Commerce Trust Company, National
Association, a banking association organized and existing under
the laws of the United States of America, or its successors or
assigns hereunder (the "Bank"),
W I TN E S SETH :
WHEREAS, the City has duly issued certain obligations now
outstanding in the aggregate amount $2,815,000 (hereinafter
collectively referred to as the "Refunded Obligations") and more
particularly described as follows:
(1) City of Southlake, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series 1990,
dated August 1, 1990, maturing on February 1 in
each of the years 2002 through 2011, and
aggregating in principal amount
$ 745,000
(2) city of Southlake, Texas, General
Obligation Refunding Bonds, Series 1990, dated
March 1, 1990, maturing on February 1 in each of
the years 2002 through 2009, and aggregating in
in principal amount
$2,070,000
WHEREAS, in accordance with the provisions of Article 717k,
V.A.T.C.S., as amended (the "Act"), the city is authorized to sell
refunding bonds in an amount sufficient to provide for the payment
of obligations to be refunded, deposit the proceeds of such
refunding bonds with any place of payment for the obligations being
refunded and enter into an escrow or similar agreement with such
place of payment for the safekeeping, investment, reinvestment,
administration and disposition of such deposit, upon such terms and
conditions as the parties may agree, provided such deposits may be
invested only in direct obligations of the United States of
A~erica, including obligations the principal of'and interest on are
unconditionally guaranteed by the United States of America,
(hereinafter called the "Federal Securities") that mature and/or
bear interest payable at such times and in such amounts as will be
sufficient to provide for the scheduled payment of Refunded
Obligations; and
WHEREAS, the Refunded Obligations are scheduled to mature, or
be redeemed, and interest thereon is payable on the dates and in
the manner set forth in Exhibit A attached hereto and incorporated
herein by reference as a part of this Agreement for all purposes;
and
WHEREAS, the City on the 19th day of October, 1993, pursuant
to an ordinance (the "Bond Ordinance") passed and adopted by the
City Council, authorized the issuance of bonds known as "City of
Southlake, Texas, General Obligation Refunding and Improvement
Bonds, Series 1993" (the "Bonds"), and such Bonds are being issued
in part to refund, discharge and make final payment of the
principal of and interest on the Refunded Obligations; and
WHEREAS, upon the delivery of the Bonds, the proceeds of sale,
together with other available funds of the City, are to be
deposited with the Bank and used in part to purchase the Federal
Securities listed and identified in Exhibit B attached hereto and
incorporated by reference as a part of this Agreement for all
purposes; and
WHEREAS, the Federal Securities shall be held and deposited to
the credit of the "Escrow Fund" to be established and maintained by
the Bank in accordance with this Agreement; and
WHEREAS, the Federal Securities, together with the beginning
cash balance in the Escrow Fund, shall mature and the interest
thereon shall be payable at such times to insure the existence of
monies sufficient to pay the principal amount of the Refunded
Obligations and the accrued interest thereon, as the same shall
become due in accordance with the terms of the ordinances
authorizing the issuance of the Refunded Obligations and as set
forth in Exhibit A attached hereto; and
WHEREAS, the City has completed all arrangements for the
purchase of the Federal Securities listed in Exhibit B and the
deposit and credit of the same to the Escrow Fund as provided
herein; and
WHEREAS, the Bank is a banking association organized and
existing under the laws of the United States of America, possessing
trust powers and is fully qualified and empowered to enter into
this Agreement; and
WHEREAS, in Section 17 of the Bond Ordinance, the City Council
duly approved and authorized the execution of this Agreement; and
WHEREAS, the City and the Escrow Agent, as the case may be,
shall take all action necessary to call, pay, redeem and retire
said Refunded Obligations in accordance with the provisions
thereof, including, without limitation, all actions required by the
ordinances authorizing the Refunded Obligations, the Act, the Bond
Ordinance and this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and to secure the payment of the principal of and
the interest on the Refunded Obligations as the same shall become
due, the City and the Bank hereby mutually undertake, promise and
agree as follows:
SECTION 1: Receipt of Refunded Bond Ordinances. Receipt
of copies of the ordinances authorizing the issuance of the
Refunded Obligations and the Bond Ordinance are hereby acknowledged
by the Bank. Reference herein to or citation herein of any
provision of said documents shall be deemed an incorporation of
such provision as a part hereof in the same manner and with the
same effect as if it were fully set forth herein.
SECTION 2: Escrow Fund Creation/Fundinq. There is hereby
created by the City with the Bank a special segregated and
irrevocable trust fund designated "SPECIAL 1993 CITY OF SOUTHLAKE,
TEXAS, REFUNDING BOND ESCROW FUND" (hereinafter called the "Escrow
Fund") for the benefit of the holders of the Refunded Obligations,
and, immediately following the delivery of the Bonds, the city
agrees and covenants to cause to be deposited with the Bank the
following amounts:
for the purchase of Federal Securities
identified in Exhibit B to be held for the
account of the Escrow Fund
for deposit in the Escrow Fund as a
beginning cash balance.
The Bank hereby accepts the Escrow Fund and further agrees to
receive said moneys, apply the same as set forth herein, and to
hold the cash and Federal Securities deposited and credited to the
Escrow Fund for application and disbursement for the purposes and
in the manner provided in this Agreement.
YEAR OF
MATURITY
PRINCIPAL
INSTALLMENTS
INTEREST
RATE
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
000 %
000 %
000 %
000 %
,000 %
000 %
000 %
000 %
000 %
000 %
000 %
000 %
000 %
000 %
000 %
000 %
000 %
000 %
The Bonds shall bear interest on the unpaid principal amounts
from the Issue Date at the rate(s) per annum shown above in this
Section (calculated on the basis of a 360-day year of twelve 30-day
months). Interest on the Bonds shall be payable on February 15 and
August 15 in each year, commencing February 15, 1994.
SECTION 3: Terms of Payment - Pa¥inq Agent/Registrar. The
principal of, premium, if any, and the interest on the Bonds, due
and payable by reason of maturity, redemption or otherwise, shall
be payable only to the registered owners or holders of the Bonds
(hereinafter called the "Holders") appearing on the registration
and transfer books maintained by the Paying Agent/Registrar, and
the payment thereof shall be in any coin or currency of the United
States of America, which at the time of payment is legal tender for
the payment of public and private debts, and shall be without
exchange or collection charges to the Holders.
The selection and appointment of Texas Commerce Trust Company,
National Association to serve as Paying Agent/Registrar for the
Bonds is hereby approved and confirmed. Books and records
relating to the registration, payment, exchange and transfer of the
Bonds (the "Security Register") shall at all times be kept and
maintained on behalf of the City by the Paying Agent/Registrar, all
as provided herein, in accordance with the terms and provisions of
a "Paying Agent/Registrar Agreement", substantially in the form
attached hereto as Exhibit A, and such reasonable rules and
regulations as the Paying Agent/Registrar and the City may
prescribe. The Mayor and City Secretary are hereby authorized to
SECTION 3: Escrow Fund Sufficiency Warranty. The City hereby
represents that the cash and Federal Securities, together with the
interest to be earned thereon, deposited to the credit of the
Escrow Fund will be sufficient to pay the principal of and premium
and interest on the Refunded Obligations as the same shall become
due and payable, and such Refunded Obligations, and the interest
thereon, are to mature or be redeemed and shall be paid at the
times and in the amounts set forth and identified in Exhibit A
attached hereto.
FURTHERMORE, the Bank acknowledges receipt of a copy of the
resolution providing for the redemption of (i) Series 1990 general
obligation Refunded Obligations on February 1, 2000 at the
redemption price of par plus accrued interest and (ii) Series 1990
tax and revenue Refunded Obligations on February 1, 2001 at the
redemption price of par plus accrued interest; all in accordance
with the provisions of the respective notice requirements
applicable to said Refunded Obligations and the notice requirements
contained in the ordinances authorizing the Refunded Obligations.
The Bank agrees to cause a notice of redemption pertaining to
the Refunded Obligations to be sent to the registered owners
thereof appearing on the registration books at least thirty (30)
days prior to the respective redemption date therefor.
SECTION 4: Pledqe of Escrow. The Bank agrees that all cash
and Federal Securities, together with any income or interest earned
thereon, held in the Escrow Fund shall be and is hereby irrevocably
pledged to the payment of the Refunded Obligations as the same
shall become due and payable in accordance with Exhibit A, and such
funds initially deposited and to be received from maturing
principal and interest on the Federal Securities in the Escrow Fund
shall be applied solely in accordance with the provisions of this
Agreement.
SECTION 5: Escrow Insufficiency - City Warranty to Cure. If,
for any reason, the funds on hand in the Escrow Fund shall be
insufficient to make the payments set forth in Exhibit A attached
hereto, as the same becomes due and payable, the City shall make
timely deposits to the Escrow Fund, from lawfully available funds,
of additional funds in the amounts required to make such payments.
Notice of any such insufficiency shall be immediately given by the
Bank to the City by the fastest means possible, but the Bank shall
in no manner be responsible for the City's failure to make such
deposits.
O118o~2~
-4-
SECTION 6: Escrow Fund Securities/Seqreqation. The Bank
shall hold said Federal Securities and moneys in the Escrow Fund at
all times as a special and separate trust fund for the benefit of
the holders of the Refunded Obligations, wholly segregated from
other moneys and securities on deposit with the Bank; shall never
commingle said Federal Securities and moneys with other moneys or
securities of the Bank; and shall hold and dispose of the assets
therein only as set forth herein. Nothing herein contained shall
be construed as requiring the Bank to keep the identical moneys, or
any part thereof, in said Escrow Fund, if it is impractical, but
moneys of an equal amount, except to the extent such are
represented by the Federal Securities, shall always be maintained
on deposit in the Escrow Fund by the Bank, as trustee; and a
special account evidencing such facts shall at all times be
maintained on the books of the Bank.
SECTION 7: Escrow Fund Collections/Payments. The Bank shall
from time to time collect and receive the principal of and interest
on the Federal Securities as they respectively mature and become
due and credit the same to the Escrow Fund. On or before each
principal and/or interest payment date or redemption date, as the
case may be, for the Refunded Obligations shown in Exhibit A
attached hereto, the Bank, without further direction from anyone,
including the City, shall cause to be withdrawn from the Escrow
Fund the amount required to pay the accrued interest on the
Refunded Obligations due and payable on said payment date and the
principal of the Refunded Obligations, together with any redemption
premium, due and payable on said payment date or redemption date,
as the case may be, and the amount withdrawn from the Escrow Fund
shall be immediately transmitted and deposited with the paying
agent for the Refunded Obligations to be paid with such amount.
The paying agent for the Series 1990 general obligation Refunded
Obligations is The Frost National Bank of San Antonio, Austin,
Texas and the paying for the Series 1990 tax and revenue Refunded
Obligations is the Bank.
If any Refunded Obligation shall not be presented for payment
when the principal thereof or interest thereon shall have become
due, and if cash shall at such times be held by the Bank in trust
for that purpose sufficient and available to pay such Refunded
Obligation and interest thereon it shall be the duty of the Bank to
hold said cash without liability to the holder of such Refunded
Obligation for interest thereon after such maturity or redemption
date, in trust for the benefit of the holder of such Refunded
Obligation, who shall thereafter be restricted exclusively to said
cash for any clain of whatever nature on his part on or with
respect to said Refunded Obligation, including for any claim for
the payment thereof and interest thereon. All cash required by the
provisions hereof to be set aside or held in trust for the payment
of the Refunded Obligations, including interest thereon, shall be
applied to and used solely for the payment of the Refunded
Obligations and interest thereon with respect to which such cash
has been so set aside in trust.
Subject to the provisions of the last sentence of Section 25
hereof, cash held by the Bank in trust for the payment and
discharge of any of the Refunded Obligations and interest thereon
which remains unclaimed for a period of four (4) years after the
stated maturity date or redemption date of such Refunded
Obligations shall be returned to the City. Notwithstanding the
above and foregoing, any remittance of funds from the Bank to the
City shall be subject to any applicable unclaimed property laws of
the State of Texas.
SECTION 8: Disposal of Refunded Obliqations. Ail Refunded
Obligations cancelled on account of payment by the Bank shall be
disposed of or otherwise destroyed by the Bank, and an appropriate
certificate of destruction furnished the City.
SECTION 9: Escrow Fund Encumbrance. The escrow created
hereby shall be irrevocable and the holders of the Refunded
Obligations shall have an express lien on all moneys and Federal
Securities in the Escrow Fund until paid out, used and applied in
accordance with this Agreement.
Unless disbursed in payment of the Refunded Obligations, all
funds and the Federal Securities received by the Bank for the
account of the City hereunder shall be and remain the property of
the Escrow Fund and the City and the owners of the Refunded
Obligations shall be entitled to a preferred claim and shall have
a first lien upon such funds and Federal Securities enjoyed by a
trust beneficiary. The funds and Federal Securities received by
the Bank under this Agreement shall not be considered as a banking
deposit by the City and the Bank and the city shall have no right
or title with respect thereto, except as otherwise provided herein.
Such funds and Federal Securities shall not be subject to checks or
drafts drawn by the City.
SECTION 10: Absence of Bank Claim/Lien on Escrow Fund.
The Bank shall have no lien whatsoever upon any of the moneys or
Federal Securities in the Escrow Fund for payment of services
rendered hereunder, services rendered as paying agent/registrar for
the Refunded Obligations, or for any costs or expenses incurred
hereunder and reimbursable from the city.
SECTION 11: Substitution of Investments/Reinvestments. The
Bank shall be authorized to accept initially and temporarily cash
and/or substituted securities pending the delivery of the Federal
Securities identified in the Exhibit B attached hereto, or shall be
authorized to redeem the Federal Securities and reinvest the
proceeds thereof, together with other moneys held in the Escrow
Fund in noncallable direct obligations of the United States of
America provided such early redemption and reinvestment of proceeds
does not change the repayment schedule of the Refunded Obligations
appearing in Exhibit A and the Bank receives the following:
(1) an opinion by an independent certified public
accountant to the effect that (i) the initial and/or
temporary substitution of cash and/or securities for one
or more of the Federal Securities identified in
Exhibit B pending the receipt and delivery thereof to
the Escrow Agent or (ii) the redemption of one or more
of the Federal Securities and the reinvestment of such
funds in one or more substituted securities (which shall
be noncallable direct obligations of the United States
of America), together with the interest thereon and
other available moneys then held in the Escrow Fund,
will, in either case, be sufficient, without
reinvestment, to pay, as the same become due in
accordance with Exhibit A, the amounts due and payable
on the Refunded Obligations which have not previously
been paid, and
(2) with respect to an early redemption of Federal
Securities and the reinvestment of the proceeds thereof,
an unqualified opinion of nationally recognized
municipal bond counsel to the effect that (a) such
investment will not cause interest on the Bonds or
Refunded Obligations to be included in the gross income
for federal income tax purposes, under the Code and
related regulations as in effect on the date of such
investment, or otherwise make the interest on the Bonds
or the Refunded Obligations subject to Federal income
taxation and (b) such reinvestment complies with the
Constitution and laws of the State of Texas and with
all relevant documents relating to the issuance of the
Refunded Obligations and the Bonds.
SECTION 12: Restriction on Escrow Fund Investments -
Reinvestment. Except as provided in Section 11 hereof, moneys in
the Escrow Fund will be invested only in the Federal Securities
listed in Exhibit B and neither the City nor the Bank shall
reinvest any moneys deposited in the Escrow Fund except as
specifically provided by this Agreement.
SECTION 14: Excess Funds. If at any time through redemption
or cancellation of the Refunded Obligations there exists or will
exist excesses of interest on or maturing principal of the Federal
Securities in excess of the amounts necessary hereunder for the
Refunded Obligations, the Bank may transfer such excess amounts to
or on the order of the City, provided that the City delivers to
the Bank the following:
(1) an opinion by an independent certified public
accountant that after the transfer of such excess, the
principal amount of securities in the Escrow Fund,
together with the interest thereon and other available
monies then held in the Escrow Fund, will be sufficient
to pay, as the same become due, in accordance with
Exhibit A, the principal of, and interest on, the
Refunded Obligations which have not previously been
paid, and
(2) an unqualified opinion of nationally
recognized municipal bond counsel to the effect that (a)
such transfer will not cause interest on the Bonds or
the Refunded Obligations to be included in gross income
for federal income tax purposes, under the Code and
related regulations as in effect on the date of such
transfer, or otherwise make the interest on the Bonds or
the Refunded Obligations subject to Federal income
taxation, and (b) such transfer complies with the
Constitution and laws of the State of Texas and with all
relevant documents relating to the issuance of the
Refunded Obligations or the Bonds.
SECTION 14: Collateralization. The Bank shall continuously
secure the monies in the Escrow Fund not invested in Federal
Securities by a pledge of direct obligations of the United States
of America, in the par or face amount at least equal to the
principal amount of said uninvested monies to the extent such
money is not insured by the Federal Deposit Insurance Corporation.
SECTION 15: Absence of Bank's Liability for Investments.
The Bank shall not be liable or responsible for any loss resulting
from any investment made in the Federal Securities or substitute
securities as provided in Section 11 hereof.
SECTION 16: Bank's Compensation - Escrow Administration/
Settlement of Payinq Aqent's Charqes. The City agrees to pay the
Bank for the performance of services hereunder and as
reimbursement for anticipated expenses to be incurred hereunder
the amount of $ and, except for reimbursement of
costs and expenses incurred by the Bank pursuant to Sections 3, 11
and 19 hereof, the Bank hereby agrees said amount is full and
complete payment for the administration of this Agreement.
The City also agrees to deposit with the Bank on the
effective date of this Agreement, the sum of $ which
deposit represents the total charges due all paying agents for the
Refunded Obligations and the Bank acknowledges and agrees that
is and represents the total amount of compensation due
the Bank for services rendered as paying agent for the Refunded
Obligations, and the City hereby represents and warrants that the
balance of the foregoing sum is the total amount due the other
paying agents for the Refunded Obligations. The Bank hereby
agrees to pay, assume and be fully responsible for any additional
charges that it may incur in the performance of its duties and
responsibilities as paying agent for the Refunded Obligations.
Furthermore, the Bank agrees to transmit to the other paying agent
for the Refunded Obligations the amount included in said deposit
for paying agent services to be rendered for the Refunded
Obligations in accordance with the City's instructions.
The City acknowledges and agrees that the above amount
deposited with the Escrow Agent to cover paying agents' charges
and expenses does not include amounts which shall become due and
payable for services rendered as registrar and transfer agent for
fully registered Refunded Obligations, and the City agrees to pay
directly to each "registrar" for the Refunded Obligations all
reasonable costs, expenses and charges incurred in connection with
the maintenance of the registration books and records and the
transfer of such fully registered obligations as and when such
costs, expenses and charges are incurred and against written
invoices, statements or bills submitted therefor.
SECTION 17: Escrow Aqent's Duties / Responsibilities/
Liability. The Bank shall not be responsible for any recital
herein, except with respect to its organization and its powers and
authority. As to the existence or nonexistence of any fact
relating to the City or as to the sufficiency or validity of any
instrument, paper or proceedings relating to the City, the Bank
shall be entitled to rely upon a certificate signed on behalf of
the City by its Finance Director or Mayor and/or City Secretary of
the City as sufficient evidence of the facts therein contained.
The Bank may accept a certificate of the City Secretary under the
City's seal, to the effect that a resolution or other instrument
in the form therein set forth has been adopted by the City Council
of the City, as conclusive evidence that such resolution or other
instrument has been duly adopted and is in full force and effect.
The duties and obligations of the Bank shall be determined
solely by the express provisions of this Agreement and the Bank
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this
Agreement against the Bank.
In the absence of bad faith on the part of the Bank, the Bank
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 Bank, conforming to the
requirements of this Agreement; but notwithstanding any provision
of this Agreement to the contrary, in the case of any such
certificate or opinion or any evidence which by any provision
hereof is specifically required to be furnished to the Bank, the
Bank shall be under a duty to examine the same to determine
whether it conforms to the requirements of this Agreement.
The Bank shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Bank
unless it shall be proved that the Bank was negligent in
ascertaining or acting upon the pertinent facts.
The Bank 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 than a majority in aggregate
principal amount of all said Refunded Obligations at the time
outstanding relating to the time, method and place of conducting
any proceeding for any remedy available to the Bank not in
conflict with the intent and purpose of this Agreement. For the
purposes of determining whether the holders of the required
principal amount of said Refunded Obligations have concurred in
any such direction, Refunded Obligations owned by any obligor upon
the Refunded Obligations, or by any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such obligor, shall be disregarded, except that for
the purposes of determining whether the Bank shall be protected in
relying on any such direction only Refunded Obligations which the
Bank knows are so owned shall be so disregarded.
The term "Responsible Officers" of the Bank, as used in this
Agreement, shall mean and include the Chairman of the Board of
Directors, the President, any Vice President and any Second Vice
President, the Secretary and any Assistant Secretary, the
Ireasurer and any Assistant Treasurer, and every other officer and
assistant officer of the Bank customarily performing functions
similar to those performed by the persons who at the time shall be
cfficers, respectively, or to whom any corporate trust matter is
referred, because of his knowledge of and familiarity with a
particular subject; and the term "Responsible Officer" of the
Bank, as used in this Agreement, shall mean and include any of
said officers or persons.
SECTION 18: Limitation Re: Bank's Duties/Responsibilities/
Liabilities to Third Parties. The Bank shall not be responsible
or liable to any person in any manner whatever for the
~ufficiency, correctness, genuineness, effectiveness, or validity
of this Agreement with respect to the City, or for the identity or
authority of any person making or executing this Agreement for and
on behalf of the City. The Bank is authorized by the City to rely
upon the representations of the City with respect to this
Agreement and the deposits made pursuant hereto and as to the
City's right and power to execute and deliver this Agreement, and
the Bank shall not be liable in any manner as a result of such
reliance. The duty of the Bank hereunder shall only be to the
City and the holders of the Refunded Obligations. Neither the
City nor the Bank shall assign or attempt to assign or transfer
any interest hereunder or any portion of any such interest. Any
such assignment or attempted assignment shall be in direct
conflict with this Agreement and be without effect.
SECTION 19: Interpleader. In the event conflicting demands
or notices are made upon the Bank growing out of or relating to
this Agreement or the Bank in good faith is in doubt as to what
action should be taken hereunder, the Bank shall have the right at
its election to:
(a) Withhold and stop all further proceedings in,
and performance of, this Agreement with respect to the
issue in question and of all instructions received
hereunder in regard to such issue; and
(b) File a suit in interpleader and obtain an
order from a court of appropriate jurisdiction requiring
all persons involved to interplead and litigate in such
court their several claims and rights among themselves.
In the event the Bank becomes involved in litigation in
connection with this Section, the City, to the extent permitted by
law, agrees to indemnify and save the Bank harmless from all loss,
cost, damages, expenses and attorney fees suffered or incurred by
the Bank as a result thereof. The obligations of the Bank under
this Agreement shall be performable at the principal corporate
office of the Bank in the City of Dallas, Texas.
The Bank may advise with legal counsel in the event of any
dispute or question regarding the construction of any of the
provisions hereof or its duties hereunder, and in the absence of
negligence or bad faith on the part of the Bank, no liability
shall be incurred by the Bank for any action taken pursuant to
this Section and the Bank shall be fully protected in acting in
accordance with the opinion and instructions of legal counsel that
is knowledgeable and has expertise in the field of law addressed
in any such legal opinion or with respect to the instructions
given.
SECTION 20: Accountinq - Annual ReDort. Promptly after
September 30th of each year, commencing with the year 1994, while
the Escrow Fund is maintained under this Agreement, the Bank shall
forward to the City, to the attention of the Finance Director, or
other designated official of the City, a statement in detail of
the Federal Securities and monies held, and the current income and
maturities thereof, and the withdrawals of money from the Escrow
Fund for the preceding 12 month period ending September 30th of
each year.
SECTION 21: Notices. Any notice, authorization, request or
demand required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given when mailed by
registered or certified mail, postage prepaid addressed as
follows:
CITY OF SOUTHLAKE, TEXAS
667 N. Carroll Avenue
Southlake, Texas 76092
Attention: Finance Director
TEXAS COMMERCE TRUST COMPANY, NATIONAL ASSOCIATION
P. O. Box 2320
Dallas, texas 75201
Attention: Debt Administration
The United States Post Office registered or certified mail receipt
showing delivery of the aforesaid shall be conclusive evidence of
the date and fact of delivery.
Any party hereto may change the address to which notices are
to be delivered by giving to the other parties not less than ten
(10) days prior notice thereof.
SECTION 22: Performance Date. Whenever under the terms of
this Agreement the performance date of any provision hereof,
including the date of maturity of interest on or principal of the
Refunded Obligations, shall be a Sunday or a legal holiday or a
day on which the Bank is authorized by law to close, then the
performance thereof, including the payment of principal of and
interest on the Refunded Obligations, need not be made on such
date but may be performed or paid, as the case may be, on the next
succeeding business day of the Bank with the same force and effect
as if made on the date of performance or payment and with respect
to a payment, no interest shall accrue for the period after such
date.
SECTION 23: Warranty of Parties Re: Power to Execute and
Deliver Escrow Aqreement. The City covenants that it will
faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this
Agreement, in any and every said Refunded Obligation as executed,
authenticated and delivered and in all proceedings pertaining
thereto as said Refunded Obligations shall have been modified as
provided in this Agreement. The City covenants that it is duly
authorized under the Constitution and laws of the State of Texas
to execute and deliver this Agreement, that all actions on its
part for the payment of said Refunded Obligations as provided
herein and the execution and delivery of this Agreement have been
duly and effectively taken and that said Refunded Obligations in
the hands of the holders and owners thereof are and will be valid
and enforceable obligations of the City according to the import
thereof as provided in this Agreement.
SECTION 24: Severability. If any one or more of the
covenants or agreements provided in this Agreement on the part of
the parties to be performed should be determined by a court of
competent jurisdiction to be contrary to law, such covenant or
agreement shall be deemed and construed to be severable from the
remaining covenants and agreements herein contained and shall in
no way affect the validity of the remaining provisions of this
Agreement. In the event any covenant or agreement contained in
this Agreement is declared to be severable from the other
provisions of this Agreement, written notice of such event shall
immediately be given to each national rating service (Moody's
Investors Service, Standard & Poor's Corporation or Fitch
Investors Service) which has rated the Refunded Obligations on the
basis of this Agreement.
SECTION 25: Termination. This Agreement shall terminate
when the Refunded Obligations, including interest due thereon,
have been paid and discharged in accordance with the provisions of
this Agreement. If any Refunded Obligations are not presented for
payment when due and payable, the nonpayment thereof shall not
prevent the termination of this Agreement. Funds for the payment
of any nonpresented Refunded Obligations and accrued interest
thereon shall upon termination of this Agreement be held by the
Bank for such purpose in accordance with Section 7 hereof. Any
moneys or Federal Securities held in the Escrow Fund at
termination and not needed for the payment of the principal of or
interest on any of the Refunded Obligations shall be paid or
transferred to the City.
SECTION 26: Time of the Essence. Time shall be of the
essence in the performance of obligations from time to time
imposed upon the Bank by this Agreement.
SECTION 27: Successors/Assigns. (a) Should the Bank not
be able to legally serve or perform the duties and obligations
under this Agreement, or should the Bank be declared to be
insolvent or closed for any reason by federal or state regulatory
authorities or a court of competent jurisdiction, the City, upon
being notified or discovering the Bank's inability or
disqualification to serve hereunder, shall forthwith appoint a
successor to replace the Bank, and upon being notified of such
appointment, the Bank shall (i) transfer all funds and securities
held hereunder, together with all books, records and accounts
relating to the Escrow Fund and the Refunded Obligations, to such
successor and (ii) assign all rights, duties and obligations under
this Agreement to such successor. If the City should fail to
appoint such a successor within ninety (90) days from the date the
City discovers, or is notified of, the event or circumstance
causing the Bank's inability or disqualification to serve
hereunder, the Bank, or a bondholder of the Refunded Obligations,
may apply to a court of competent jurisdiction to appoint a
successor or assigns of the Bank and such court, upon determining
the Bank is unable to continue to serve, shall appoint a successor
to serve under this Agreement and the amount of compensation, if
any, to be paid to such successor for the remainder of the term of
this Agreement for services to be rendered both for administering
the Escrow Fund and for paying agent duties and responsibilities
for the Refunded Obligations.
(b) Furthermore, the Bank may resign and be discharged from
performing its duties and responsibilities under this Agreement
upon notifying the City in writing of its intention to resign and
requesting the City to appoint a successor. No such resignation
shall take effect until a successor has been appointed by the City
and such successor has accepted such appointment and agreed to
perform all duties and obligations hereunder for a total
compensation equal to the unearned proportional amount paid the
Bank under Section 16 hereof for the administration of this
Agreement and the unearned proportional amount of the paying
agents fees for the Refunded Obligations due the Bank.
Any successor to the Bank shall be a bank, trust company or
other financial institution that is duly qualified under
applicable law (the Act or o~her appropriate statute) to serve as
escrow agent hereunder and authorized and empowered to perform the
duties and obligations contemplated by this Agreement and
organized and doing business under the laws of the United States
or the State of Texas, having its principal office and place of
business in the State of Texas, having a combined capital and
surplus of at least $5,000,000 and be subject to the supervision
or examination by Federal or State authority.
Any successor or assigns to the Bank shall execute,
acknowledge and deliver to the City and the Bank, or its successor
or assigns, an instrument accepting such appointment hereunder,
and the Bank shall execute and deliver an instrument transferring
to such successor, subject to the terms of this Agreement, all the
rights, powers and trusts created and established and to be
performed under this Agreement. Upon the request of any such
successor Bank, the city shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor Bank all such rights, powers and duties. The term
"Bank" as used herein shall be the Bank and its legal assigns and
successor hereunder.
SECTION 28: Escrow Agreement -Amendment/Modification. This
Agreement shall be binding upon the City and the Bank and their
respective successors and legal representatives and shall inure
solely to the benefit of the holders of the Refunded Obligations,
the City, the Bank and their respective successors and legal
representatives. Furthermore, no alteration, amendment or
modification of any provision of this Agreement shall (1) alter
the firm financial arrangements made for the payment of the
Refunded Obligations or (2) be effective unless (i) prior written
consent of such alteration, amendment or modification shall have
been obtained from the holders of all Refunded Obligations
outstanding at the time of such alteration, amendment or
modification and (ii) such alteration, amendment or modification
is in writing and signed by the parties hereto; provided, however,
the City and the Bank may, without the consent of the holders of
the Refunded Obligations, amend or modify the terms and provisions
of this Agreement to cure in a manner not adverse to the holders
of the Refunded Obligations any ambiguity, formal defect or
omission in this Agreement. If the parties hereto agree to any
amendment or modification to this Agreement, prior written notice
of such amendment or proposed modification, together with the
legal documents amending or modifying this Agreement, shall be
furnished to each national rating service (Standard & Poor's
Corporation, Moody's Investors Service or Fitch Investors Service)
which has rated the Refunded Obligations on the basis of this
Agreement, prior to such amendment or modification being executed.
SECTION 29: Effect of Headinqs.
are for convenience only and shall
hereof.
The Section headings herein
not affect the construction
SECTION 30: Executed Counterparts. This Agreement may be
executed in several counterparts, all or any of which shall be
regarded for all purposes as one original and shall constitute and
be but one and the same instrument. This Agreement shall be
governed by the laws of the State of Texas and shall be effective
as of the date of the delivery of the Bonds.
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be executed by their duly authorized officers and
their corporate seals to be hereunto affixed and attested as of
the date first above written.
CITY OF SOUTHLAKE, TEXAS
ATTEST:
Mayor
City Secretary
(City Seal)
TEXAS COMMERCE TRUST
NATIONAL ASSOCIATION,
as Escrow Agent
COMPANY,
ATTEST:
Title:
Authorized Signer
(Bank Seal)
execute and deliver such Agreement in connection with the delivery
of the Bonds. The City covenants to maintain and provide a Paying
Agent/Registrar at all times until the Bonds are paid and
discharged, and any successor Paying Agent/Registrar shall be a
bank, trust company, financial institution or other entity
qualified and authorized to serve in such capacity and perform the
duties and services of Paying Agent/Registrar. Upon any change in
the Paying Agent/Registrar for the Bonds, the City agrees to
promptly cause a written notice thereof to be sent to each Holder
by United States Mail, first class postage prepaid, which notice
shall also give the address of the new Paying Agent/Registrar.
Principal of and premium, if any, on the Bonds shall be payable
at the Stated Maturities or redemption, only upon presentation and
surrender of the Bonds to the Paying Agent/Registrar at its
principal offices in Dallas, Texas (the "Designated
Payment/Transfer Office") Interest on the Bonds shall be paid to
the Holders whose name appears in the Security Register at the
close of business on the Record Date (the last business day of the
month next preceding each interest payment date) and shall be paid
by the Paying Agent/Registrar (i) by check sent United States Mail,
first class postage prepaid, to the address of the Holder recorded
in the Security Register or (ii) by such other method, acceptable
to the Paying Agent/ Registrar, requested by, and at the risk and
expense of, the Holder. If the date for the payment of the
principal of or interest on the Bonds shall be a Saturday, Sunday,
a legal holiday, or a day when banking institutions in the City
where the Designated Payment/Transfer Office of the Paying
Agent/Registrar is located are authorized by law or executive order
to close, then the date for such payment shall be the next
succeeding day which is not such a Saturday, Sunday, legal holiday,
or day when banking institutions are authorized to close; and
payment on such date shall have the same force and effect as if
made on the original date payment was due.
In the event of a nonpayment of interest on a scheduled payment
date, and for thirty (30) days thereafter, a new record date for
such interest payment (a "Special Record Date") will be established
by the Paying Agent/ Registrar, if and when funds for the payment
of such interest have been received from the City. Notice of the
Special Record Date and of the scheduled payment date of the past
due interest (which shall be 15 days after the Special Record Date)
shall be sent at least five (5) business days prior to the Special
Record Date by United States Mail, first class postage prepaid, to
the address of each Holder appearing on the Security Register at
the close of business on the last business day next preceding the
date of mailing of such notice.
01179<24
--4--
SECTION 4: Redemption. (a) Optional Redemption. The Bonds
having Stated Maturities on and after August 15, 2004, shall be
subject to redemption prior to maturity, at the option of the City,
in whole or in part in principal amounts of $5,000 or any integral
multiple thereof (and if within a Stated Maturity by lot by the
Paying Agent/Registrar), on August 15, 2003 or on any date
thereafter at the redemption price of par plus accrued interest to
the date of redemption.
(b) Exercise of Redemption Option. At least forty-five (45)
days prior to a redemption date for the Bonds (unless a shorter
notification period shall be satisfactory to the Paying
Agent/Registrar), the City shall notify the Paying Agent/Registrar
of the decision to redeem Bonds, the principal amount of each
Stated Maturity to be redeemed, and the date of redemption
therefor. The decision of the City to exercise the right to redeem
Bonds shall be entered in the minutes of the governing body of the
City.
(c) Selection of Bonds for Redemption. If less than all
Outstanding Bonds of the same Stated Maturity are to be redeemed on
a redemption date, the Paying Agent/Registrar shall treat such
Bonds as representing the number of Bonds Outstanding which is
obtained by dividing the principal amount of such Bonds by $5,000
and shall select the Bonds to be redeemed within such Stated
Maturity by lot.
(d) Notice of Redemption. Not less than thirty 30) days prior
to a redemption date for the Bonds, a notice of redemption shall be
sent by United States Mail, first class postage prepaid, in the
name of the City and at the City's expense, to each Holder of a
Bond to be redeemed in whole or in part at the address of the
Holder appearing on the Security Register at the close of business
on the business day next preceding the date of mailing such notice,
and any notice of redemption so mailed shall be conclusively
presumed to have been duly given irrespective of whether received
by the Holder.
Ail notices of redemption shall (i) specify the date of
redemption for the Bonds, (ii) identify the Bonds to be redeemed
and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state
the redemption price, (iv) state that the Bonds, or the portion of
the principal amount thereof to be redeemed, shall become due and
payable on the redemption date specified, and the interest thereon,
or on the portion of the principal amount thereof to be redeemed,
shall cease to accrue from and after the redemption date, and (v)
specify that payment of the redemption price for the Bonds, or the
principal amount thereof to be redeemed, shall be made at the
Designated Payment/Transfer office of the Paying Agent/Registrar
0117994
--5--
only upon presentation and surrender thereof by the Holder. If a
Bond is subject by its terms to prior redemption and has been
called for redemption and notice of redemption thereof has been
duly given as hereinabove provided, such Bond (or the principal
amount thereof to be redeemed) shall become due and payable and
interest thereon shall cease to accrue from and after the
redemption date therefor; provided moneys sufficient for the
payment of such Bond (or of the principal amount thereof to be
redeemed) at the then applicable redemption price are held for the
purpose of such payment by the Paying Agent/Registrar.
SECTION 5: Reqistration - Transfer - Exchanqe of Bonds-
Predecessor Bonds. The Paying Agent/Registrar shall obtain,
record, and maintain in the Security Register the name and address
of each and every owner of the Bonds issued under and pursuant to
the provisions of this Ordinance, or if appropriate, the nominee
thereof. Any Bond may be transferred or exchanged for Bonds of
other authorized denominations by the Holder, in person or by his
duly authorized agent, upon surrender of such Bond to the Paying
Agent/Registrar at the Designated Payment/Transfer Office for
cancellation, accompanied by a written instrument of transfer or
request for exchange duly executed by the Holder or by his duly
authorized agent, in form satisfactory to the Paying
Agent/Registrar.
Upon surrender of any Bond for transfer at the Designated
Payment/Transfer Office of the Paying Agent/ Registrar, one or more
new Bonds shall be registered and issued to the assignee or
transferee of the previous Holder; such Bonds to be in authorized
denominations, of like Stated Maturity and of a like aggregate
principal amount as the Bond or Bonds surrendered for transfer.
At the option of the Holder, Bonds may be exchanged for other
Bonds of authorized denominations and having the same Stated
Maturity, bearing the same rate of interest and of like aggregate
principal amount as the Bonds surrendered for exchange, upon
surrender of the Bonds to be exchanged at the Designated
Payment/Transfer Office of the Paying Agent/ Registrar. Whenever
any Bonds are surrendered for exchange, the Paying Agent/Registrar
shall register and deliver new Bonds to the Holder requesting the
exchange.
All Bonds issued in any transfer or exchange of Bonds shall be
delivered to the Holders at the Designated Payment/Transfer Office
of the Paying Agent/Registrar or sent by United States Mail, first
class, postage prepaid to the Holders, and, upon the registration
and delivery thereof, the same shall be the valid obligations of
the City, evidencing the same obligation to pay, and entitled to
the same benefits under this Ordinance, as the Bonds surrendered in
such transfer or exchange.
Ail transfers or exchanges of Bonds pursuant to this Section
shall be made without expense or service charge to the Holder,
except as otherwise herein provided, and except that the Paying
Agent/Registrar shall require payment by the Holder requesting such
transfer or exchange of any tax or other governmental charges
required to be paid with respect to such transfer or exchange.
Bonds cancelled by reason of an exchange or transfer pursuant to
the provisions hereof are hereby defined to be "Predecessor Bonds,"
evidencing all or a portion, as the case may be, of the same
obligation to pay evidenced by the new Bond or Bonds registered and
delivered in the exchange or transfer therefor. Additionally, the
term "Predecessor Bonds" shall include any mutilated, lost,
destroyed, or stolen Bond for which a replacement Bond has been
issued, registered and delivered in lieu thereof pursuant to the
provisions of Section 11 hereof and such new replacement Bond shall
be deemed to evidence the same obligation as the mutilated, lost,
destroyed, or stolen Bond.
Neither the City nor the Paying Agent/ Registrar shall be
required to issue or transfer to an assignee of a Holder any Bond
called for redemption, in whole or in part, within 45 days of the
date fixed for the redemption of such Bond; provided, however, such
limitation on transferability shall not be applicable to an
exchange by the Holder of the unredeemed balance of a Bond called
for redemption in part.
SECTION 6: Book-Entry Only Transfers and Transactions.
Notwithstanding the provisions contained in Sections 3, 4 and 5
hereof relating to the payment, and transfer/exchange of the Bonds,
the City hereby approves and authorizes the use of "Book-Entry
Only" securities clearance, settlement and transfer system provided
by The Depository Trust Company (DTC), a limited purpose trust
company organized under the laws of the State of New York, in
accordance with the requirements and procedures identified in the
Letter of Representation, by and between the City, the Paying
Agent/Registrar and DTC (the "Depository Agreement") relating to
the Bonds.
Pursuant to the Depository Agreement and the rules of DTC, the
Bonds shall be deposited with DTC who shall hold said Bonds for its
participants (the "DTC Participants"). While the Bonds are held by
DTC under the Depository Agreement, the Holder of the Bonds on the
Security Register for all purposes, including payment and notices,
shall be Cede & Co., as nominee of DTC, notwithstanding the
ownership of each actual purchaser or ow~ner of each Bond (the
"Beneficial Owners") being recorded in the records of DTC and DTC
Participants.
0117994
In the event DTC determines to discontinue serving as securities
depository for the Bonds or otherwise ceases to provide book-entry
clearance and settlement of securities transactions in general or
the city determines that DTC is incapable of properly discharging
its duties as securities depository for the Bonds, the City
covenants and agrees with the Holders of the Bonds to cause Bonds
to be printed in definitive form and provide for the Bond
certificates to be issued and delivered to DTC Participants and
Beneficial Owners, as the case may be. Thereafter, the Bonds in
definitive form shall be assigned, transferred and exchanged on the
Security Register maintained by the Paying Agent/Registrar and
payment of such Bonds shall be made in accordance with the
provisions of Sections 3, 4 and 5 hereof.
SECTION 7: Execution - Reqistration. The Bonds shall be
executed on behalf of the City by the Mayor under its seal
reproduced or impressed thereon and countersigned by the City
Secretary. The signature of said officers on the Bonds may be
manual or facsimile. Bonds bearing the manual or facsimile
signatures of individuals who are or were the proper officers of
the City on the Issue Date shall be deemed to be duly executed on
behalf of the City, notwithstanding that such individuals or either
of them shall cease to hold such offices at the time of delivery of
the Bonds to the initial purchaser(s) and with respect to Bonds
delivered in subsequent exchanges and transfers, all as authorized
and provided in the Bond Procedures Act of 1981, as amended.
No Bond shall be entitled to any right or benefit under this
Ordinance, or be valid or obligatory for any purpose, unless there
appears on such Bond either a certificate of registration
substantially in the form provided in Section 9C, manually executed
by the Comptroller of Public Accounts of the State of Texas, or his
duly authorized agent, or a certificate of registration
substantially in the form provided in Section 9D, manually executed
by an authorized officer, employee or representative of the Paying
Agent/Registrar, and either such certificate duly signed upon any
Bond shall be conclusive evidence, and the only evidence, that such
Bond has been duly certified, registered and delivered.
SECTION 8: Initial Bond(s). The Bonds herein authorized shall
be initially issued either (i) as a single fully registered bond in
the total principal amount noted in Section 1 with principal
installments to become due and payable as provided in Section 2
hereof and numbered T-i, or (ii) as eighteen (18) fully registered
bonds, being one bond for each year of maturity in the applicable
principal amount and denomination and to be numbered consecutively
from T-1 and upward (hereinafter called the "Initial Bond(s)") and,
in either case, the Initial Bond(s) shall be registered in the name
of the initial purchaser(s) or the designee thereof. The Initial
Bond(s) shall be the Bonds submitted to the Office of the Attorney
O117994
General of the State of Texas for approval, certified and
registered by the Office of the Comptroller of Public Accounts of
the State of Texas and delivered to the initial purchaser(s). Any
time after the delivery of the Initial Bond(s), the Paying Agent/
Registrar, pursuant to written instructions from the initial
purchaser(s), or the designee thereof, shall cancel the Initial
Bond(s) delivered hereunder and exchange therefor definitive Bonds
of authorized denominations, Stated Maturities, principal amounts
and bearing applicable interest rates for transfer and delivery to
the Holders named at the addresses identified therefor; all
pursuant to and in accordance with such written instructions from
the initial purchaser(s), or the designee thereof, and such other
information and documentation as the Paying Agent/Registrar may
reasonably require.
SECTION 9: Forms. A. Forms Generally. The Bonds, the
Registration Certificate of the Comptroller of Public Accounts of
the State of Texas, the Registration Certificate of Paying
Agent/Registrar, and the form of Assignment to be printed on each
of the Bonds, shall be substantially in the forms set forth in this
Section with such appropriate insertions, omissions, substitutions,
and other variations as are permitted or required by this Ordinance
and may have such letters, numbers, or other marks of
identification (including identifying numbers and letters of the
Committee on Uniform Securities Identification Procedures of the
American Bankers Association) and such legends and endorsements
(including insurance legends on insured Bonds and any reproduction
of an opinion of counsel) thereon as may, consistently herewith, be
established by the City or determined by the officers executing
such Bonds as evidenced by their execution. Any portion of the
text of any Bonds may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Bond.
The definitive Bonds and the Initial Bond(s) shall be printed,
lithographed, or engraved or typewritten, photocopied or otherwise
reproduced in any other similar manner, all as determined by the
officers executing such Bonds as evidenced by their execution
thereof.
0117994
--9-
B. Form of Definitive Bond.
REGISTERED
NO.
REGISTERED
$
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF SOUTHLAKE, TEXAS,
GENERAL OBLIGATION REFUNDING AND IMPROVEMENT BOND,
SERIES 1993
Issue Date:
October 1, 1993
Interest Rate:
Stated Maturity:
CUSIP NO:
Registered Owner:
Principal Amount:
DOLLARS
The City of Southlake (hereinafter referred to as the "City"),
a body corporate and municipal corporation in the County of
Tarrant, State of Texas, for value received, acknowledges itself
indebted to and hereby promises to pay to the order of the
Registered Owner named above, or the registered assigns thereof, on
the Stated Maturity date specified above the Principal Amount
hereinabove stated (or so much thereof as shall not have been paid
upon prior redemption), and to pay interest on the unpaid principal
amount hereof from the Issue Date at the per annum rate of interest
specified above computed on the basis of a 360-day year of
twelve 30-day months; such interest being payable on February 15
and August 15 in each year, commencing February 15, 1994.
Principal of this Bond is payable at its Stated Maturity or
redemption to the registered owner hereof, upon presentation and
surrender, at the Designated Payment/Transfer Office of the Paying
Agent/Registrar executing the registration certificate appearing
hereon, or its successor. Interest is payable to the registered
owner of this Bond (or one or more Predecessor Bonds, as defined in
the Ordinance hereinafter referenced) whose name appears on the
"Security Register" maintained by the Paying Agent/Registrar at the
close of business on the "Record Date", which is the last business
day of the month next preceding each interest payment date, and
interest shall be paid by the Paying Agent/Registrar by check sent
United States Mail, first class postage prepaid, to the address of
the registered owner recorded in the Security Register or by such
other method, acceptable to the Paying Agent/Registrar, requested
by, and at the risk and expense of, the registered owner. All
payments of principal of, premium, if any, and interest on this
Bond shall be without exchange or collection charges to the owner
hereof and in any coin or currency of the United States of America
which at the time of payment is legal tender for the payment of
public and private debts.
0117994
-10-
This Bond is one of the series specified in its title issued in
the aggregate principal amount of $ (herein referred to
as the "Bonds") for the purpose of providing funds for the
discharge and final payment of certain outstanding obligations of
the City and to pay costs of issuance, and to provide funds in the
amount of $3,000,000 for permanent public improvements and public
purposes, to wit: street improvements, including drainage
incidental thereto and the acquisition of right-of-way therefor;
under and in strict conformity with the Constitution and laws of
the State of Texas, including Articles 1175 and 717k, V.A.T.C.S.,
and pursuant to an Ordinance adopted by the City Council of the
City (herein referred to as the "Ordinance").
The Bonds maturing on and after August 15, 2004, may be
redeemed prior to their Stated Maturities, at the option of the
City, in whole or in part in principal amounts of $5,000 or any
integral multiple thereof (and if within a Stated Maturity by lot
by the Paying Agent/Registrar), on August 15, 2003, or on any date
thereafter, at the redemption price of par, together with accrued
interest to the date of redemption and upon 30 days prior written
notice being sent by United States Mail, first class postage
prepaid, to the registered owners of the Bonds to be redeemed, and
subject to the terms and provisions relating thereto contained in
the Ordinance. If this Bond (or any portion of the principal sum
hereof) shall have been duly called for redemption and notice of
such redemption duly given, then upon such redemption date this
Bond (or the portion of the principal sum hereof to be redeemed)
shall become due and payable, and interest thereon shall cease to
accrue from and after the redemption date therefor, provided moneys
for the payment of the redemption price and the interest on the
principal amount to be redeemed to the date of redemption are held
for the purpose of such payment by the Paying Agent/Registrar.
In the event of a partial redemption of the principal amount of
this Bond, payment of the redemption price of such principal amount
shall be made to the registered owner only upon presentation and
surrender of this Bond to the Designated Payment/Transfer Office of
the Paying Agent/Registrar, and there shall be issued to the
registered owner hereof, without charge, a new Bond or Bonds of
like maturity and interest rate in any authorized denominations
provided by the Ordinance for the then unredeemed balance of the
principal sum hereof. If this Bond is selected for redemption, in
whole or in part, the City and the Paying Agent/Registrar shall not
be required to transfer this Bond to an assignee of the registered
owner within 45 days of the redemption date therefor; provided,
however, such limitation on transferability shall not be applicable
to an exchange by the registered owner of the unredeemed balance
hereof in the event of its redemption in part.
01179~+
The Bonds are payable from the proceeds of an ad valorem tax
levied, within the limitations prescribed by law, upon all taxable
property in the City. Reference is hereby made to the Ordinance,
a copy of which is on file in the Designated Payment/Transfer
Office of the Paying Agent/Registrar, and to all of the provisions
of which the owner or holder of this Bond by the acceptance hereof
hereby assents, for definitions of terms; the description of and
the nature and extent of the tax levied for the payment of the
Bonds; the terms and conditions relating to the transfer or
exchange of this Bond; the conditions upon which the Ordinance may
be amended or supplemented with or without the consent of the
Holders; the rights, duties, and obligations of the City and the
Paying Agent/Registrar; the terms and provisions upon which this
Bond may be discharged at or prior to its maturity, and deemed to
be no longer Outstanding thereunder; and for other terms and
provisions contained therein. Capitalized terms used herein have
the meanings assigned in the Ordinance.
This Bond, subject to certain limitations contained in the
Ordinance, may be transferred on the Security Register only upon
its presentation and surrender at the Designated Payment/Transfer
Office of the Paying Agent/Registrar, with the Assignment hereon
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Paying Agent/Registrar duly
executed by, the registered owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or more
new fully registered Bonds of the same Stated Maturity, of
authorized denominations, bearing the same rate of interest, and of
the same aggregate principal amount will be issued by the Paying
Agent/Registrar to the designated transferee or transferees.
The city and the Paying Agent/Registrar, and any agent of
either, shall treat the registered owner whose name appears on the
Security Register (i) on the Record Date as the owner entitled to
payment of interest hereon, (ii) on the date of surrender of this
Bond as the owner entitled to payment of principal hereof at its
Stated Maturity, or its redemption, in whole or in part, and (iii)
on any other date as the owner for all other purposes, and neither
the City nor the Paying Agent/ Registrar, or any agent of either,
shall be affected by notice to the contrary. In the event of
nonpayment of interest on a scheduled payment date and for thirty
(30) days thereafter, a new record date for such interest payment
(a "Special Record Date") will be established by the Paying
Agent/Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record
Date and of the scheduled payment date of the past due interest
(which shall be 15 days after the Special Record Date) shall be
sent at least five (5) business days prior to the Special Record
Date by United States Mail, first class postage prepaid, to the
address of each Holder appearing on the Security Register at the
0117994
-12-
close of business on the last business day next preceding the date
of mailing of such notice.
It is hereby certified, recited, represented and declared that
the city is a body corporate and political subdivision duly
organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the issuance of
the Bonds is duly authorized by law; that all acts, conditions and
things required to exist and be done precedent to and in the
issuance of the Bonds to render the same lawful and valid
obligations of the City have been properly done, have happened and
have been performed in regular and due time, form and manner as
required by the Constitution and laws of the State of Texas, and
the Ordinance; that the Bonds do not exceed any Constitutional or
statutory limitation; and that due provision has been made for the
payment of the principal of and interest on the Bonds by the levy
of a tax as aforestated. In case any provision in this Bond shall
be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The terms and provisions of this
Bond and the Ordinance shall be construed in accordance with and
shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the city Council of the City has caused this
Bond to be duly executed under the official seal of the City as of
the Issue Date.
CITY OF SOUTHLAKE, TEXAS
COUNTERSIGNED:
Mayor
City Secretary
(SEAL)
01179<24
-13-
Co
*Form of Reqistration Certificate of Comptroller of Public
Accounts to appear on Initial Bond(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
THE STATE OF TEXAS
(
(
( REGISTER NO.
(
I HEREBY CERTIFY that this Bond has been examined, certified as
to validity and approved by the Attorney General of the State of
Texas, and duly registered by the Comptroller of Public Accounts of
the State of Texas.
WITNESS my signature and seal of office this
Comptroller of Public Accounts
of the State of Texas
(SEAL)
*NOTE TO PRINTER: Do Not Print on Definitive Bonds
Form of Certificate of Pa¥inq Aqent/Reqistrar to appear on
Definitive Bonds only.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Bond has been duly issued and registered under the
provisions of the within-mentioned Ordinance; the bond or bonds of
the above entitled and designated series originally delivered
having been approved by the Attorney General of the State of Texas
and registered by the Comptroller of Public Accounts, as shown by
the records of the Paying Agent/Registrar.
The principal offices of the Paying Agent/Registrar in Dallas,
Texas, is the Designated Payment/Transfer Office for this Bond.
TEXAS COMMERCE TRUST COMPANY,
ASSOCIATION,
as Paying Agent/Registrar
NATIONAL
Registration Date:
By
Authorized Signature
E. Form of Assiqnment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and
transfers unto (Print or typewrite name, address, and zip code of
transferee:) ..................................
(Social Security or other identifying number:
................. the within Bond and all r r nd
hereby irrevocably constitutes and appoints ...................
~''~o t~a~%f%r''t~e''~ ~ o~''t~ '~o~' ~%' ~or
registration thereof, with full power of substitution in the
premises.
DATED:
Signature guaranteed:
assignment must correspond with
the name of the registered owner
as it appears on the face of the
within Bond in every particular.
The Initial Bond(s)
paraqraph B of this Section, except that the
sinqle fully reqistered Initial Bond shall
follows:
shall be in the form set forth i~
form of th,.
be modified a~
(i)
immediately under the name of the bond the headings "Interest
Rate "and "Stated Maturity "shall
both be omitted;
(ii) Paragraph one shall read as follows:
Registered Owner:
Principal Amount: Dollars
The City of Southlake (hereinafter referred to as the "City"),
a body corporate and municipal corporation in the County of
Tarrant, State of Texas, for value received, acknowledges itself
indebted to and hereby promises to pay to the order of the
Registered Owner named above, or the registered assigns thereof,
the Principal Amount hereinabove stated on August 15 in each of the
years and in principal installments in accordance with the
following schedule:
0117994
-15-
YEAR OF PRINCIPAL INTEREST
MATURITY INSTALLMENTS RATE
(Information to be inserted from
schedule in Section 2 hereof).
(or so much principal thereof as shall not have been prepaid prior
to maturity) and to pay interest on the unpaid Principal Amount
hereof from the Issue Date at the per annum rates of interest
specified above computed on the basis of a 360-day year of twelve
30-day months; such interest being payable on February 15 and
August 15 in each year, commencing February 15, 1994. Principal
installments of this Bond are payable in the year of maturity to
the registered owner hereof by Texas Commerce Trust Company,
National Association (the "Paying Agent/Registrar"), upon
presentation and surrender, at its principal offices in Dallas,
Texas (the "Designated Payment/Transfer office"). Interest is
payable to the registered owner of this Bond whose name appears on
the "Security Register" maintained by the Paying Agent/Registrar at
the close of business on the "Record Date", which is the last
business day of the month next preceding each interest payment
date, and interest shall be paid by the Paying Agent/Registrar by
check sent United States Mail, first class postage prepaid, to the
address of the registered owner recorded in the Security Register
or by such other method, acceptable to the Paying Agent/Registrar,
requested by, and at the risk and expense of, the registered owner.
All payments of principal of, premium, if any, and interest on this
Bond shall be without exchange or collection charges to the owner
hereof and in any coin or currency of the United States of America
which at the time of payment is legal tender for the payment of
public and private debts.
SECTION 10: Levy of Taxes. To provide for the payment of the
"Debt Service Requirements" of the Bonds, being (i) the interest on
the Bonds and (ii) a sinking fund for their redemption at maturity
or a sinking fund of 2% (whichever amount is the greater), there is
hereby levied, and there shall be annually assessed and collected
in due time, form, and manner, a tax on all taxable property in the
City, within the limitations prescribed by law, and such tax hereby
levied on each one hundred dollars' valuation of taxable property
in the city for the Debt Service Requirements of the Bonds shall be
at a rate from year to year as will be ample and sufficient to
provide funds each year to pay the principal of and interest on
said Bonds while Outstanding; full allowance being made for
delinquencies and costs of collection; separate books and records
relating to the receipt and disbursement of taxes levied, assessed
and collected for and on account of the Bonds shall be kept and
maintained by the City at all times while the Bonds are
outstanding, and the taxes collected for the payment of the Debt
Service Requirements on the Bonds shall be deposited to the credit
0117994
-16--
of a "Special 1993 Refunding Bond Account" (the "Interest and
Sinking Fund") maintained on the records of the City and deposited
in a special fund maintained at an official depository of the
City's funds; and such tax hereby levied, and to be assessed and
collected annually, is hereby pledged to the payment of the Bonds.
Proper officers of the City are hereby authorized and directed
to cause to be transferred to the Paying Agent/ Registrar for the
Bonds, from funds on deposit in the Interest and Sinking Fund,
amounts sufficient to fully pay and discharge promptly each
installment of interest and principal of the Bonds as the same
accrues or matures; such transfers of funds to be made in such
manner as will cause collected funds to be deposited with the
Paying Agent/Registrar on or before each principal and interest
payment date for the Bonds.
Provided, however, in regard to the payments to become due on
the Bonds on February 15, 1994 and August 15, 1994, sufficient
current funds will be available and are hereby appropriated to make
such payments; and proper officials of the City are hereby
authorized and directed to transfer and deposit to the credit of
the Interest and Sinking Fund, such current funds which, together
with the accrued interest received from the purchaser, will be
sufficient to pay the amount of the payments due on the Bonds on
February 15, 1994 and August 15, 1994.
SECTION 11: Mutilated - Destroyed - Lost and Stolen Bonds. In
case any Bond shall be mutilated, or destroyed, lost or stolen, the
Paying Agent/Registrar may execute and deliver a replacement Bond
of like form and tenor, and in the same denomination and bearing a
number not contemporaneously outstanding, in exchange and
substitution for such mutilated Bond, or in lieu of and in
substitution for such destroyed, lost or stolen Bond, only upon the
approval of the City and after (i) the filing by the Holder thereof
with the Paying Agent/ Registrar of evidence satisfactory to the
Paying Agent/ Registrar of the destruction, loss or theft of such
Bond, and of the authenticity of the ownership thereof and (ii) the
furnishing to the Paying Agent/Registrar of indemnification in an
amount satisfactory to hold the City and the Paying Agent/
Registrar harmless. All expenses and charges associated with such
indemnity and with the preparation, execution and delivery of a
replacement Bond shall be borne by the Holder of the Bond
mutilated, or destroyed, lost or stolen.
0117994
Every replacement Bond issued pursuant to this Section shall be
a valid and binding obligation, and shall be entitled to all the
benefits of this Ordinance equally and ratably with all other
Outstanding Bonds; notwithstanding the enforceability of payment by
anyone of the destroyed, lost, or stolen Bonds.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect
to the replacement and payment of mutilated, destroyed, lost or
stolen Bonds.
SECTION 12: Satisfaction of Obligation of City. If the City
shall pay or cause to be paid, or there shall otherwise be paid to
the Holders, the principal of, premium, if any, and interest on the
Bonds, at the times and in the manner stipulated in this Ordinance,
then the pledge of taxes levied under this Ordinance and all
covenants, agreements, and other obligations of the City to the
Holders shall thereupon cease, terminate, and be discharged and
satisfied.
Bonds or any principal amount(s) thereof shall be deemed to have
been paid within the meaning and with the effect expressed above in
this Section when (i) money sufficient to pay in full such Bonds or
the principal amount(s) thereof at maturity or to the redemption
date therefor, together with all interest due thereon, shall have
been irrevocably deposited with and held in trust by the Paying
Agent/Registrar, or an authorized escrow agent, or (ii) Government
Securities shall have been irrevocably deposited in trust with the
Paying Agent/ Registrar, or an authorized escrow agent, which
Government Securities have been certified by an independent
accounting firm to mature as to principal and interest in such
amounts and at such times as will insure the availability, without
reinvestment, of sufficient money, together with any moneys
deposited therewith, if any, to pay when due the principal of and
interest on such Bonds, or the principal amount(s) thereof, on and
prior to the Stated Maturity thereof or (if notice of redemption
has been duly given or waived or if irrevocable arrangements
therefor acceptable to the Paying Agent/Registrar have been made)
the redemption date thereof. The City covenants that no deposit of
moneys or Government Securities will be made under this Section and
no use made of any such deposit which would cause the Bonds to be
treated as "arbitrage bonds" within the meaning of Section 148 of
the Internal Revenue Code of 1986, as amended, or regulations
adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/ Registrar, or an
authorized escrow agent, and all income from Government Securities
held in trust by the Paying Agent/Registrar, or an authorized
escrow agent, pursuant to this Section which is not required for
the payment of the Bonds, or any principal amount(s) thereof, or
0117994
--18--
interest thereon with respect to which such moneys have been so
deposited shall be remitted to the City or deposited as directed by
the City. Furthermore, any money held by the Paying
Agent/Registrar for the payment of the principal of and interest on
the Bonds and remaining unclaimed for a period of four (4) years
after the Stated Maturity, or applicable redemption date, of the
Bonds such moneys were deposited and are held in trust to pay shall
upon the request of the City be remitted to the City against a
written receipt therefor. Notwithstanding the above and foregoing,
any remittance of funds from the Paying Agent/Registrar to the City
shall be subject to any applicable unclaimed property laws of the
State of Texas.
The term "Government Securities", as used herein, means direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of
America, which are non-callable prior to the respective Stated
Maturities of the Bonds and may be United States Treasury
Obligations such as the State and Local Government Series and may
be in book-entry form.
SECTION 13: Ordinance a Contract - Amendments - Outstandinq
Bonds. This Ordinance shall constitute a contract with the Holders
from time to time, be binding on the City, and shall not be amended
or repealed by the City so long as any Bond remains Outstanding
except as permitted in this Section. The City may, without the
consent of or notice to any Holders, from time to time and at any
time, amend this Ordinance in any manner not detrimental to the
interests of the Holders, including the curing of any ambiguity,
inconsistency, or formal defect or omission herein. In addition,
the City may, with the consent of Holders holding a majority in
aggregate principal amount of the Bonds then Outstanding affected
thereby, amend, add to, or rescind any of the provisions of this
Ordinance; provided that, without the consent of all Holders of
Outstanding Bonds, no such amendment, addition, or rescission shall
(1) extend the time or times of payment of the principal of,
premium, if any, and interest on the Bonds, reduce the principal
amount thereof, the redemption price, or the rate of interest
thereon, or in any other way modify the terms of payment of the
principal of, premium, if any, or interest on the Bonds, (2) give
any preference to any Bond over any other Bond, or (3) reduce the
aggregate principal anount of Bonds required to be held by Holders
for consent to any such amendment, addition, or rescission.
0117994
The term "Outstanding" when used in this Ordinance with respect
to Bonds means, as of the date of determination, all Bonds
theretofore issued and delivered under this Ordinance, except:
(1) those Bonds cancelled by the Paying Agent/Registrar or
delivered to the Paying Agent/ Registrar for cancellation;
(2) those Bonds deemed to be duly paid by the City in
accordance with the provisions of Section 11 hereof; and
(3) those mutilated, destroyed, lost, or stolen Bonds
which have been replaced with Bonds registered and delivered
in lieu thereof as provided in Section 10 hereof.
SECTION 14: Covenants to Maintain Tax-Exempt Status.
(a) Definitions. When used in this Section, the following terms
shall have the following meanings:
"Closing Date" means the date on which the Bonds are first
authenticated and delivered to the initial purchasers against
payment therefor.
"Code" means the Internal Revenue Code of 1986, as amended
by all legislation, if any, effective on or before the Closing
Date.
"Computation Date" has the meaning set forth in Section
1.148-1(b) of the Regulations.
"Gross Proceeds" means any proceeds as defined in Section
1.148-1(b) of the Regulations, and any replacement proceeds
as defined in Section 1.148-1(c) of the Regulations, of the
Bonds.
"Investment" has the meaning set forth in Section 1.148-
l(b) of the Regulations.
"Nonpurpose Investment" means any investment property, as
defined in section 148(b) of the Code, in which Gross Proceeds
of the Bonds are invested and which is not acquired to carry
out the governmental purposes of the Bonds.
"Rebate Amount" has the meaning set forth in Section
1.148-1(b) of the Regulations.
"Regulations" means any proposed, temporary, or final
Income Tax Regulations issued pursuant to Sections 103 and 141
through 150 of the Code, and 103 of the Internal Revenue Code
of 1954, which are applicable to the Bonds. Any reference to
0117994
-20-
any specific Regulation shall also mean, as appropriate, any
proposed, temporary or final Income Tax Regulation designed
to supplement, amend or replace the specific Regulation
referenced.
"Yield" of (1) any Investment has the meaning set forth
in Section 1.148-5 of the Regulations; and (2) the Bonds has
the meaning set forth in Section 1.148-4 of the Regulations.
(b) Not to Cause Interest to Become Taxablm. The City shall not
use, permit the use of, or omit to use Gross Proceeds or any other
amounts (or any property the acquisition, construction or
improvement of which is to be financed directly or indirectly with
Gross Proceeds) in a manner which if made or omitted, respectively,
would cause the interest on any Bond to become includable in the
gross income, as defined in section 61 of the Code, of the owner
thereof for federal income tax purposes. Without limiting the
generality of the foregoing, unless and until the City receives a
written opinion of counsel nationally recognized in the field of
municipal bond law to the effect that failure to comply with such
covenant will not adversely affect the exemption from federal
income tax of the interest on any Bond, the City shall comply with
each of the specific covenants in this Section.
(c) No Private Use or Private Payments. Except as permitted by
section 141 of the Code and the Regulations and rulings thereunder,
the City shall at all times prior to the last Stated Maturity of
Bonds:
(1) exclusively own, operate and possess all property the
acquisition, construction or improvement of which is to be
financed or refinanced directly or indirectly with Gross
Proceeds of the Bonds (including property financed with Gross
Proceeds of the Refunded Obligations), and not use or permit
the use of such Gross Proceeds (including all contractual
arrangements with terms different than those applicable to the
general public) or any property acquired, constructed or
improved with such Gross Proceeds in any activity carried on
by any person or entity (including the United States or any
agency, department and instrumentality thereof) other than a
state or local government, unless such use is solely as a
member of the general public; and
(2) not directly or indirectly impose or accept any charge
or other payment by any person or entity who is treated as
using Gross Proceeds of the Bonds or any property the
acquisition, construction or improvement of which is to be
financed or refinanced directly or indirectly with such Gross
Proceeds (including property financed with Gross Proceeds of
the Refunded Obligations), other than taxes of general
application within the City or interest earned on investments
acquired with such Gross Proceeds pending application for
their intended purposes.
(d) No Private Loan. Except to the extent permitted by section
141 of the Code and the Regulations and rulings thereunder, the
City shall not use Gross Proceeds of the Bonds to make or finance
loans to any person or entity other than a state or local
government. For purposes of the foregoing covenant, such Gross
Proceeds are considered to be "loaned" to a person or entity if:
(1) property acquired, constructed or improved with such Gross
Proceeds is sold or leased to such person or entity in a
transaction which creates a debt for federal income tax purposes;
(2) capacity in or service from such property is committed to such
person or entity under a take-or-pay, output or similar contract or
arrangement; or (3) indirect benefits, or burdens and benefits of
ownership, of such Gross Proceeds or any property acquired,
constructed or improved with such Gross Proceeds are otherwise
transferred in a transaction which is the economic equivalent of a
loan.
(e) Not to Invest at Hiqher Yield. Except to the extent
permitted by section 148 of the Code and the Regulations and
rulings thereunder, the City shall not at any time prior to the
final Stated Maturity of the Bonds directly or indirectly invest
Gross Proceeds in any Investment (or use Gross Proceeds to replace
money so invested), if as a result of such investment the Yield
from the Closing Date of all Investments acquired with Gross
Proceeds (or with money replaced thereby), whether then held or
previously disposed of, exceeds the Yield of the Bonds.
(f) Not Federally Guaranteed. Except to the extent permitted
by section 149(b) of the Code and the Regulations and rulings
thereunder, the City shall not take or omit to take any action
which would cause the Bonds to be federally guaranteed within the
meaning of section 149(b) of the Code and the Regulations and
rulings thereunder.
(g) Information ReDort. The City shall timely file the
information required by section 149(e) of the Code with the
Secretary of the Treasury on Form 8038-G or such other form and in
such place as the Secretary may prescribe.
(h) Rebate of Arbitraqe Profits. Except to the extent
otherwise provided in section 148(f) of the Code and the
Regulations and rulings thereunder:
0117994
-22--
(1) The City shall account for all Gross Proceeds
(including all receipts, expenditures and investments thereof)
on its books of account separately and apart fron all other
funds (and receipts, expenditures and investments thereof) and
shall retain all records of accounting for at least six years
after the day on which the last Outstanding Bond is
discharged. However, to the extent permitted by law, the City
may commingle Gross Proceeds of the Bonds with other money of
the City, provided that the city separately accounts for each
receipt and expenditure of Gross Proceeds and the obligations
acquired therewith.
(2) Not less frequently than each Computation Date, the
City shall calculate the Rebate Amount in accordance with
rules set forth in section 148(f) of the Code and the
Regulations and rulings thereunder. The City shall maintain
such calculations with its official transcript of proceedings
relating to the issuance of the Bonds until six years after
the final Computation Date.
(3) As additional consideration for the purchase of the
Bonds by the Purchasers and the loan of the money represented
thereby and in order to induce such purchase by measures
designed to insure the excludability of the interest thereon
from the gross income of the owners thereof for federal income
tax purposes, the City shall pay to the United States out of
the Bond Fund or its general fund, as permitted by applicable
Texas statute, regulation or opinion of the Attorney General
of the State of Texas, the amount that when added to the
future value of previous rebate payments made for the Bonds
equals (i) in the case of a Final Computation Date as defined
in Section 1.148-3(e) (2) of the Regulations, one hundred
percent (100%) of the Rebate Amount on such date; and (ii) in
the case of any other Computation Date, ninety percent (90%)
of the Rebate Amount on such date. In all cases, the rebate
payments shall be made at the times, in the installments, to
the place and in the manner as is or may be required by
section 148(f) of the Code and the Regulations and rulings
thereunder, and shall be accompanied by Form 8038-T or such
other forms and information as is or may be required by
Section 148(f) of the Code and the Regulations and rulings
thereunder.
(4) The City shall exercise reasonable diligence to assure
that no errors are nade in the calculations and payments
required by paragraphs (2) and (3), and if an error is made,
to discover and promptly correct such error within a
reasonable amount of time thereafter (and in all events within
one hundred eighty (180) days after discovery of the error),
including payment to the United States of any additional
0117994
-23-
Rebate Amount owed to it, interest thereon, and any penalty
imposed under Section 1.148-3(h) of the Regulations.
(i) Not to Divert Arbitraqe Profits. Except to the extent
permitted by section 148 of the Code and the Regulations and
rulings thereunder, the City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the Bonds, enter
into any transaction that reduces the amount required to be paid to
the United States pursuant to Subsection H of this Section because
such transaction results in a smaller profit or a larger loss than
would have resulted if the transaction had been at arm's length and
had the Yield of the Bonds not been relevant to either party.
(j) Elections. The City hereby directs and authorizes the City
Manager and Finance Director, either or any combination of them, to
make elections permitted or required pursuant to the provisions of
the Code or the Regulations, as they deem necessary or appropriate
in connection with the Bonds, in the Certificate as to Tax
Exemption or similar or other appropriate certificate, form or
document.
(k) Bonds Not Hedqe Bonds. (1) At the time the original bonds
refunded by the Bonds were issued, the City reasonably expected to
spend at least 85% of the spendable proceeds of such bonds within
three years after such bonds were issued and (2) not more than 50%
of the proceeds of the original bonds refunded by the Bonds were
invested in Nonpurpose Investments having a substantially
guaranteed Yield for a period of 4 years or more.
(1) Qualified Advance Refunding. The Bonds are issued
exclusively to refund the Refunded Obligations, and the Bonds will
be issued more than 90 days before the redemption of the Refunded
Obligations. The City represents as follows:
(1) The Bonds are the first advance refunding of the
Refunded Obligations, within the meaning of section 149(d) (3)
of the Code.
(2) The Refunded Obligations are being called for
redemption, and will be redeemed: (i) in the case of Refunded
Obligations issued after 1985, not later than the earliest
date on which such bonds may be redeemed and on which the City
will realize present value debt service savings (determined
without regard to administrative expenses) on the issue; and
(ii) in the case of Refunded Obligations issued before 1986,
not later than the earliest date on which such issue may be
redeemed at par or at a premium of 3 percent or less and on
which the City will realize present value debt service savings
(determined without regard to administrative expenses) on the
issue.
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(3) The initial temporary period under section 148(c) of
the Code will end: (i) with respect to the proceeds of the
Bonds not later than 30 days after the date of issue of such
Bonds; and (ii) with respect to proceeds of the Refunded
Obligations on the Closing Date if not ended prior thereto.
(4) On and after the date of issue of the Bonds, no
proceeds of the Refunded Obligations will be invested in
Nonpurpose Investments having a Yield in excess of the Yield
on such Refunded Obligations.
(5) The Bonds are being issued for the purposes stated in
the preamble of this Ordinance. There is a present value
savings associated with the refunding. In the issuance of the
Bonds the City has neither: (i) overburdened the tax-exempt
bond market by issuing more bonds, issuing bonds earlier or
allowing bonds to remain outstanding longer than reasonably
necessary to accomplish the governmental purposes for which
the Bonds were issued; (ii) employed on "abusive arbitrage
device" within the meaning of Section 1.148-10(a) of the
Regulations; nor (iii) employed a "device" to obtain a
material financial advantage based on arbitrage, within the
meaning of section 149(d) (4) of the Code, apart from savings
attributable to lower interest rates and reduced debt service
payments in early years.
SECTION 15: Sale of Bonds - Official Statement Approval. The
Bonds authorized by this Ordinance are hereby sold by the City to
Stephens Inc. and Southwest Securities Incorporated (herein
referred to as the "Purchasers") in accordance with the Purchase
Contract, dated October 19, 1993, attached hereto as Exhibit B and
incorporated herein by reference as a part of this Ordinance for
all purposes. The Mayor is hereby authorized and directed to
execute said Purchase Contract for and on behalf of the City and as
the act and deed of this Council, and the City Secretary is
authorized to attest said Purchase Contract, and in regard to the
approval and execution of the Purchase Contract, the Council hereby
finds, determines and declares that the representations, warranties
and agreements of the City contained therein are true and correct
in all material respects and shall be honored and performed by the
City.
Furthermore, the use of the Preliminary Official Statement in
connection with the public offering and sale of the Bonds is hereby
ratified, confirmed and approved in all respects. The final
Official Statement reflecting the terns of sale, attached as
exhibit A to the Purchase Contract (together with such changes
approved by the Mayor, City Secretary, City Manager or Finance
Director, any one or more of said officials), shall be and is
hereby in all respects approved and the Purchasers are hereby
0117994
-25-
authorized to use and distribute said final Official Statement,
dated October 19, 1993, in the reoffering, sale and delivery of the
Bonds to the public. The Mayor and City Secretary are further
authorized and directed to manually execute and deliver for and on
behalf of the City copies of said Official Statement in final form
as may be required by the Purchasers, and such official Statement
in the final form and content manually executed by any one or more
of said officials shall be deemed to be approved by the City
Council and constitute the Official Statement authorized for
distribution and use by the Purchasers.
SECTION 16: Qualified Tax ExemDt Obliqations. In accordance
with the provisions of paragraph (3) of subsection (b) of Section
265 of the Code, the City hereby designates the Bonds to be
"qualified tax exempt obligations" in that the Bonds are not
"private activity bonds" as defined in the Code and the reasonably
anticipated amount of "qualified tax exempt obligations" to be
issued by the City (including all subordinate entities of the City)
for the calendar year in which the Bonds are issued will not exceed
$10,000,000.
SECTION 17: SDecial Escrow Aqreement Approval and
Execution. The "Special Escrow Agreement" (the "Agreement") by and
between the City and Texas Commerce Trust Company, NA (the "Escrow
Agent"), attached hereto as Exhibit C and incorporated herein by
reference as a part of this Ordinance for all purposes, is hereby
approved as to form and content, and such Agreement in
substantially the form and substance attached hereto, together with
such changes or revisions as may be necessary to accomplish the
refunding or benefit the City, is hereby authorized to be executed
by the Mayor and City Secretary for and on behalf of the City and
as the act and deed of the City Council; and such Agreement as
executed by said officials shall be deemed approved by the City
Council and constitute the Agreement herein approved.
Furthermore, appropriate officials of the City in cooperation
with the Escrow Agent are hereby authorized and directed to make
the necessary arrangements for the purchase of the Federal
Securities referenced in the Agreement and the delivery thereof to
the Escrow Agent on the day of delivery of the Bonds to the
Purchasers for deposit to the credit of the "SPECIAL 1993 CITY OF
SOUTHLAKE, TEXAS, REFUNDING BOND ESCROW FUND" (the "Escrow Fund");
all as contemplated and provided in Article 717k, V.A.T.C.S., as
amended, this Ordinance and the Agreement.
SECTION 18: Control and Custody of Bonds. The Mayor of the
City shall be and is hereby authorized to take and have charge of
all necessary orders and records pending investigation by the
Attorney General of the State of Texas, including the printing and
supply of definitive Bonds, and shall take and have charge and
0117994
control of the Initial Bond(s) pending the approval thereof by the
Attorney General, the registration thereof by the Comptroller of
Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Mayor, City Secretary, City Manager and Finance
Director, any one or more of said officials, are hereby authorized
and directed to furnish and execute such agreements, documents and
certifications relating to the City and the issuance, sale and
delivery of the Bonds, including certifications as to facts,
estimates, circumstances and reasonable expectations pertaining to
the use, expenditure and investment of the proceeds of the Bonds,
as may be necessary for the approval of the Attorney General, the
registration by the Comptroller of Public Accounts and the delivery
of the Bonds to the Purchasers, and, together with the City's bond
counsel and the Paying Agent/Registrar, make the necessary
arrangements for the delivery of the Initial Bond(s) to the
Purchasers and the initial exchange thereof for definitive Bonds.
SECTION 19: Proceeds of Sale. Immediately following the
delivery of the Bonds, the proceeds of sale thereof (less certain
costs of issuance, the accrued interest received from the
Purchasers of the Bonds and the amounts to be deposited to the
credit of the construction fund) shall be deposited with the Escrow
Agent for application and disbursement in accordance with the
provisions of the Agreement. The proceeds of sale of the Bonds not
so deposited with the Escrow Agent for the refunding of the
Refunded Obligations shall be disbursed and deposited for payment
of costs of issuance, deposited in the Interest and Sinking Fund
and deposited in the construction fund, all in accordance with
written instructions from the City. Pending expenditure for
authorized projects and purposes, the proceeds of sale of the Bonds
deposited to the construction fund may be invested in authorized
investments and any investment earnings realized may be expended
for such authorized projects or purposes or deposited in the
Interest and Sinking Fund as shall be determined by the City
Council. All surplus proceeds of sale of the Bonds deposited in
the construction fund, including investment earnings, remaining
after completion of all authorized projects or purposes shall be
deposited to the credit of the Interest and Sinking Fund.
SECTION 20: Notices to Holders - Waiver. Wherever this
Ordinance provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and sent by United States Mail, first class
postage prepaid, to the address of each Holder appearing in the
Security Register at the close of business on the business day next
preceding the mailing of such notice.
0117994
-27-
In any case where notice to Holders is given by mail, neither
the failure to mail such notice to any particular Holders, nor any
defect in any notice so mailed, shall affect the sufficiency of
such notice with respect to all other Bonds. Where this Ordinance
provides for notice in any manner, such notice may be waived in
writing by the Holder entitled to receive such notice, either
before or after the event with respect to which such notice is
given, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Paying
Agent/Registrar, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such waiver.
SECTION 21: Cancellation. Ail Bonds surrendered for payment,
redemption, transfer, exchange, or replacement, if surrendered to
the Paying Agent/Registrar, shall be promptly cancelled by it and,
if surrendered to the City, shall be delivered to the Paying
Agent/Registrar and, if not already cancelled, shall be promptly
cancelled by the Paying Agent/ Registrar. The City may at any time
deliver to the Paying Agent/Registrar for cancellation any Bonds
previously certified or registered and delivered which the City may
have acquired in any manner whatsoever, and all Bonds so delivered
shall be promptly cancelled by the Paying Agent/Registrar. All
cancelled Bonds held by the Paying Agent/Registrar shall be
returned to the City.
SECTION 22: Le al O inion. The obligation of the Purchasers to
accept delivery of the Bonds is subject to being furnished a final
opinion of Fulbright & Jaworski L.L.P., Attorneys, Dallas, Texas,
approving such Bonds as to their validity, said opinion to be dated
and delivered as of the date of delivery and payment for such
Bonds. A true and correct reproduction of said opinion or an
executed counterpart thereof is hereby authorized to be either
printed on definitive printed obligations or deposited with DTC
along with the global certificates for the implementation and use
of the Book Entry Only System used in the settlement and transfer
of the Bonds.
SECTION 23: CUSIP Numbers. CUSIP numbers may be printed or
typed on the Bonds deposited with The Depository Trust Company or
on printed definitive Bonds. It is expressly provided, however,
that the presence or absence of CUSIP numbers on the definitive
Bonds shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Bonds as
to legality are to be held responsible for CUSIP numbers
incorrectly printed or typed on the definitive Bonds.
0117994
--28-
SECTION 24: Benefits of Ordinance. Nothing in this Ordinance,
expressed or implied, is intended or shall be construed to confer
upon any person other than the City, the Paying Agent/Registrar and
the Holders, any right, remedy, or claim, legal or equitable, under
or by reason of this Ordinance or any provision hereof, this
Ordinance and all its provisions being intended to be and being for
the sole and exclusive benefit of the City, the Paying
Agent/Registrar and the Holders.
SECTION 25: Inconsistent Provisions. Ail ordinances, orders or
resolutions, or parts thereof, which are in conflict or
inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict, and the provisions of this
Ordinance shall be and remain controlling as to the matters
contained herein.
SECTION 26: Governinq Law. This Ordinance shall be construed
and enforced in accordance with the laws of the State of Texas and
the United States of America.
SECTION 27: Effect of Headings. The Section headings herein are
for convenience only and shall not affect the construction hereof.
SECTION 28: Construction of Terms. If appropriate in the
context of this Ordinance, words of the singular number shall be
considered to include the plural, words of the plural number shall
be considered to include the singular, and words of the masculine,
feminine or neuter gender shall be considered to include the other
genders.
SECTION 29: Severability. If any provision of this Ordinance or
the application thereof to any circumstance shall be held to be
invalid, the remainder of this Ordinance and the application
thereof to other circumstances shall nevertheless be valid, and the
City Council hereby declares that this Ordinance would have been
enacted without such invalid provision.
SECTION 30: Incorporation of Findinqs and Determinations.
The findings and determinations of the City Council contained in
the preamble hereof are hereby incorporated by reference and made
a part of this Ordinance for all purposes as if the same were
restated in full in this Section.
SECTION 31: Public Meetinq. It is officially found, determined,
and declared that the meeting at which this Ordinance is adopted
was open to the public and public notice of the time, place, and
subject matter of the public business to be considered at such
meeting, including this Ordinance, was given, all as required by
V.T.C.A., Local Government Code, Chapter 551.
0117994
-29-
SECTION 32: Effective Date. This Ordinance shall take effect
and be in full force immediately from and after its date of
adoption shown below.
PASSED ON FIRST READING, September 21, 1993.
PASSED ON SECOND READING AND ADOPTED, this October 19, 1993.
CITY OF SOUTHLAKE, TEXAS
C~ity Secretary
(City Seal)
APPROVED AS TO LEGALITY:
City Attorney
o117~
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of October 19, 1993 (this
"Agreement"), by and between the City of Southlake, Texas (the
"Issuer"), and Texas Commerce Trust Company, National Association,
a banking association duly organized and existing under the laws
of the United States of America, (the "Bank").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the
execution and delivery of its "City of Southlake, Texas, General
Obligation and Refunding Bonds, Series 1993" (the "Securities"),
dated October 1, 1993, such Securities to be issued in fully
registered form only as to the payment of principal and interest
thereon; and
WHEREAS, the Securities are scheduled to be delivered to the
initial purchasers thereof on or about November 23, 1993; and
WHEREAS, the Issuer has selected the Bank to serve as Paying
Agent/Registrar in connection with the payment of the principal
of, premium, if any, and interest on said Securities and with
respect to the registration, transfer and exchange thereof by the
registered owners thereof; and
WHEREAS, the Bank has agreed to serve in such capacities for
and on behalf of the Issuer and has full power and authority to
perform and serve as Paying Agent/Registrar for the Securities;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01. Appointment. The Issuer hereby appoints the
Bank to serve as Paying Agent with respect to the Securities, and,
as Paying Agent for the Securities, the Bank shall be responsible
for paying on behalf of the Issuer the principal, premium (if
any), and interest on the Securities as the same become due and
payable to the registered owners thereof; all in accordance with
this Agreement and the "Bond Resolution" (hereinafter defined).
The Issuer hereby appoints the Bank as Registrar with respect to
the Securities and, as Registrar for the Securities, the Bank
shall keep and maintain for and on behalf of the Issuer books and
records as to the ownership of said Securities and with respect to
0118022
the transfer and exchange thereof as provided herein and in the
"Bond Resolution".
The Bank hereby accepts its appointment, and agrees to serve
as the Paying Agent and Registrar for the Securities.
Section 1.02. Compensation. As compensation for the Bank's
services as Paying Agent/Registrar, the Issuer hereby agrees to
pay the Bank the fees and amounts set forth in Annex A attached
hereto for the first year of this Agreement and thereafter the
fees and amounts set forth in the Bank's current fee schedule then
in effect for services as Paying Agent/Registrar for
municipalities, which shall be supplied to the Issuer on or before
90 days prior to the close of the Fiscal Year of the Issuer, and
shall be effective upon the first day of the following Fiscal
Year.
In addition, the Issuer agrees to reimburse the Bank upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Bank in accordance with any of the
provisions hereof (including the reasonable compensation and the
expenses and disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
"Acceleration Date" on any Security means the date on
and after which the principal or any or all installments of
interest, or both, are due and payable on any Security which
has become accelerated pursuant to the terms of the Security.
"Bank Office" means the principal office of the Bank as
indicated on page 11 hereof. The Bank will notify the Issuer
in writing of any change in location of the Bank Office.
"Bond Resolution" means the resolution, order, or
ordinance of the governing body of the Issuer pursuant to
which the Securities are issued, certified by the Secretary
or any other officer of the Issuer and delivered to the Bank.
"Fiscal Year" means the fiscal year of the Issuer,
ending September 30th.
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--2--
"Holder" and "Security Holder" each means the Person in
whose name a Security is registered in the Security Register.
"Issuer Request" and "Issuer Order" means a written
request or order signed in the name of the Issuer by the
Mayor, City Secretary, Finance Director or City Manager, any
one or more of said officials, and delivered to the Bank.
"Legal Holiday" means a day on which the Bank is
required or authorized to be closed.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision of a government.
"Predecessor Securities" of any particular Security
means every previous Security evidencing all or a portion of
the same obligation as that evidenced by such particular
Security (and, for the purposes of this definition, any
mutilated, lost, destroyed, or stolen Security for which a
replacement Security has been registered and delivered in
lieu thereof pursuant to Section 4.06 hereof and the
Resolution).
"Redemption Date" when used with respect to any Security
to be redeemed means the date fixed for such redemption
pursuant to the terms of the Bond Resolution.
"Responsible Officer" when used with respect to the Bank
means the Chairman or Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive
Committee of the Board of Directors, the President, any Vice
President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Trust Officer or Assistant Trust
Officer, or any other officer of the Bank customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security Register" means a register maintained by the
Bank on behalf of the Issuer providing for the registration
and transfers of Securities.
0118022
"Stated Maturity" means the date specified in the Bond
Resolution the principal of a Security is scheduled to be due
and payable.
Section 2.02. Other Definitions. The terms "Bank,"
"Issuer," and "Securities (Security)" have the meanings assigned
to them in the recital paragraphs of this Agreement.
The term "Paying Agent/Registrar" refers to the Bank in the
performance of the duties and functions of this Agreement.
ARTICLE THREE
PAYING AGENT
Section 3.01. Duties of Pa¥inq Aqent. As Paying Agent, the
Bank shall, provided adequate collected funds have been provided
to it for such purpose by or on behalf of the Issuer, pay on
behalf of the Issuer the principal of each Security at its Stated
Maturity, Redemption Date, or Acceleration Date, to the Holder
upon surrender of the Security to the Bank at the Bank Office.
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer the interest on each
Security when due, by computing the amount of interest to be paid
each Holder and making payment thereof to the Holders of the
Securities (or their Predecessor Securities) on the Record Date.
All payments of principal and/or interest on the Securities to the
registered owners shall be accomplished (1) by the issuance of
checks, payable to the registered owners, drawn on the fiduciary
account provided in Section 5.05 hereof, sent by United States
mail, first class, postage prepaid, to the address appearing on
the Security Register or (2) by such other method, acceptable to
the Bank, requested in writing by the Holder at the Holder's risk
and expense.
Section 3.02. ~ent Dates. The Issuer hereby instructs
the Bank to pay the principal-~--~and interest on the Securities at
the dates specified in the Bond Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01. Security Register - Transfers and Exchanqes.
The Bank agrees to keep and maintain for and on behalf of the
Issuer at the Bank Office books and records (herein sometimes
referred to as the "Security Register") for recording the names
and addresses of the Holders of the Securities, the transfer,
exchange and replacement of the Securities and the payment of the
principal of and interest on the Securities to the Holders and
0118022
--4--
containing such other information as may be reasonably required by
the Issuer and subject to such reasonable regulations as the
Issuer and Bank may prescribe. All transfers, exchanges and
replacement of Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer, the signature on which has been guaranteed by an officer
of a federal or state bank or a member of the National Association
of Securities Dealers, in form satisfactory to the Bank, duly
executed by the Holder thereof or his agent duly authorized in
writing.
The Bank may request any supporting documentation it feels
necessary to effect a re-registration, transfer or exchange of the
Securities.
To the extent possible and under reasonable circumstances,
the Bank agrees that, in relation to an exchange or transfer of
Securities, the exchange or transfer by the Holders thereof will
be completed and new Securities delivered to the Holder or the
assignee of the Holder in not more than three (3) business days
after the receipt of the Securities to be cancelled in an exchange
or transfer and the written instrument of transfer or request for
exchange duly executed by the Holder, or his duly authorized
agent, in form and manner satisfactory to the Paying
Agent/Registrar.
Section 4.02. Certificates. The Issuer shall provide an
adequate inventory of printed Securities to facilitate transfers
or exchanges thereof. The Bank covenants that the inventory of
printed Securities will be kept in safekeeping pending their use
and reasonable care will be exercised by the Bank in maintaining
such Securities in safekeeping, which shall be not less than the
care maintained by the Bank for debt securities of other
governments or corporations for which it serves as registrar, or
that is maintained for its own securities.
Section 4.03. Form of Security Reqister. The Bank, as
Registrar, will maintain the Security Register relating to the
registration, payment, transfer and exchange of the Securities in
accordance with the Bank's general practices and procedures in
effect from time to time. The Bank shall not be obligated to
maintain such Security Register in any form other than those which
the Bank has currently available and currently utilizes at the
time.
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--5--
The Security Register may be maintained in written form or in
any other form capable of being converted into written form within
a reasonable time.
Section 4.04. List of Security Holders. The Bank will
provide the Issuer at any time requested by the Issuer, upon
payment of the required fee, a copy of the information contained
in the Security Register. The Issuer may also inspect the
information contained in the Security Register at any time the
Bank is customarily open for business, provided that reasonable
time is allowed the Bank to provide an up-to-date listing or to
convert the information into written form.
The Bank will not release or disclose the contents of the
Security Register to any person other than to, or at the written
request of, an authorized officer or employee of the Issuer,
except upon receipt of a court order or as otherwise required by
law. Upon receipt of a court order and prior to the release or
disclosure of the contents of the Security Register, the Bank will
notify the Issuer so that the Issuer may contest the court order
or such release or disclosure of the contents of the Security
Register.
Section 4.05. Return of Cancelled Certificates. The Bank
will, at such reasonable intervals as it determines, surrender to
the Issuer, Securities in lieu of which or in exchange for which
other Securities have been issued, or which have been paid.
Section 4.06. Mutilated, Destroyed, Lost or Stolen Securi-
ties. The Issuer hereby instructs the Bank, subject to the
provisions of Section 11 of the Bond Resolution, to deliver and
issue Securities in exchange for or in lieu of mutilated,
destroyed, lost, or stolen Securities as long as the same does not
result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost
or stolen, the Bank may execute and deliver a replacement Security
of like form and tenor, and in the same denomination and bearing
a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in
substitution for such destroyed lost or stolen Security, only upon
the approval of the Issuer and after (i) the filing by the Holder
thereof with the Bank of evidence satisfactory to the Bank of the
destruction, loss or theft of such Security, and of the
authenticity of the ownership thereof and (ii) the furnishing to
the Bank of indemnification in an amount satisfactory to hold the
Issuer and the Bank harmless. All expenses and charges associated
with such indemnity and with the preparation, execution and
delivery of a replacement Security shall be borne by the Holder of
the Security mutilated, or destroyed, lost or stolen.
0118022
--6--
Section 4.07. Transaction Information to Issuer. The Bank
will, within a reasonable time after receipt of written request
from the Issuer, furnish the Issuer information as to the
Securities it has paid pursuant to Section 3.01, Securities it has
delivered upon the transfer or exchange of any Securities pursuant
to Section 4.01, and Securities it has delivered in exchange for
or in lieu of mutilated, destroyed, lost, or stolen Securities
pursuant to Section 4.06.
ARTICLE FIVE
THE BANK
Section 5.01. Duties of Bank. The Bank undertakes to
perform the duties set forth herein and agrees to use reasonable
care in the performance thereof.
Section 5.02. Reliance on Documents, Etc. (a) The Bank
may conclusively rely, as to the truth of the statements and
correctness of the opinions expressed therein, on certificates or
opinions furnished to the Bank.
(b) The Bank shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Bank was negligent in ascertaining the pertinent
facts.
(c) No provisions of this Agreement shall require the Bank
to expend or risk its own funds or otherwise incur any financial
liability for performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risks or
liability is not assured to it.
(d) The Bank may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note, security, or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties. Without limiting the
generality of the foregoing statement, the Bank need not examine
the ownership of any Securities, but is protected in acting upon
receipt of Securities containing an endorsement or instruction of
transfer or power of transfer which appears on its face to be
signed by the Holder or an agent of the Holder. The Bank shall
not be bound to make any investigation into the facts or matters
stated in a resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
note, security, or other paper or document supplied by Issuer.
0118022
--7--
(e) The Bank may consult with counsel, and the written
advice of such counsel or any opinion of counsel shall be full and
complete authorization and protection with respect to any action
taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(f) The Bank may exercise any of the powers hereunder and
perform any duties hereunder either directly or by or through
agents or attorneys of the Bank.
Section 5.03. Recitals of Issuer. The recitals contained
herein with respect to the Issuer and in the Securities shall be
taken as the statements of the Issuer, and the Bank assumes no
responsibility for their correctness.
The Bank shall in no event be liable to the Issuer, any
Holder or Holders of any Security, or any other Person for any
amount due on any Security from its own funds.
Section 5.04. May Hold Securities. The Bank, in its
individual or any other capacity, may become the owner or pledgee
of Securities and may otherwise deal with the Issuer with the same
rights it would have if it were not the Paying Agent/Registrar, or
any other agent.
Section 5.05. Moneys Held by Bank - Fiduciary Account/
Collateralization. A fiduciary account shall at all times be kept
and maintained by the Bank for the receipt, safekeeping and
disbursement of moneys received from the Issuer hereunder for the
payment of the Securities, and money deposited to the credit of
such account until paid to the Holders of the Securities shall be
continuously collateralized by securities or obligations which
qualify and are eligible under both the laws of the State of Texas
and the laws of the United States of America to secure and be
pledged as collateral for fiduciary accounts to the extent such
money is not insured by the Federal Deposit Insurance Corporation.
Payments made from such fiduciary account shall be made by check
drawn on such fiduciary account unless the owner of such
Securities shall, at its own expense and risk, request such other
medium of payment.
The Bank shall be under no liability for interest on any
money received by it hereunder.
Subject to the applicable unclaimed property laws of the
State of Texas, any money deposited with the Bank for the payment
of the principal, premium (if any), or interest on any security
and remaining unclaimed for four years after final maturity of the
Security has become due and payable will be paid by the Bank to
the Issuer, and the Holder of such Security shall thereafter look
0118022
--8--
only to the Issuer for payment thereof, and all liability of the
Bank with respect to such moneys shall thereupon cease.
Section 5.06. Indemni__~ficatio_~n. To the extent permitted by
law, the Issuer agrees to indemnify the Bank for, and hold it
harmless against, any loss, liability, or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with its acceptance or administration of its duties
hereunder, including the cost and expense against any claim or
liability in connection with the exercise or performance of any of
its powers or duties under this Agreement.
Section 5.07. Int~. The Issuer and the Bank agree
that the Bank may seek adjudication of any adverse claim, demand,
or controversy over its person as well as funds on deposit, in
either a Federal or State District Court located in the State and
County where either the Bank Office or the administrative offices
of the Issuer is located, and agree that service of process by
certified or registered mail, return receipt requested, to the
address referred to in Section 6.03 of this Agreement shall
constitute adequate service. The Issuer and the Bank further
agree that the Bank has the right to file a Bill of Interpleader
in any court of competent jurisdiction to determine the rights of
any Person claiming any interest herein.
Section 5.08. DT Services. It is hereby represented and
warranted that, in the event the Securities are otherwise
qualified and accepted for "Depository Trust Company" services or
equivalent depository trust services by other organizations, the
Bank has the capability and, to the extent within its control,
will comply with the "Operational Arrangements,,, effective August
1, 1987, which establishes requirements for securities to be
eligible for such type depository trust services, including, but
not limited to, requirements for the timeliness of payments and
funds availability, transfer turnaround time, and notification of
redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. _Amendment. This Agreement may be amended only
by an agreement in writing signed by both of the parties hereto.
Section 6.02. Assiqnment. This Agreement may not be
assigned by either party without the prior written consent of the
other.
Section 6.03. Notices. Any request, demand, authorization,
direction, notice, consent, waiver, or other document provided or
0118022
--9--
permitted hereby to be given or furnished to the
Bank shall be mailed or delivered to the Issuer
respectively, at the addresses shown on page 11.
Issuer or the
or the Bank,
Section 6.04. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
Section 6.05. Successors and Assiqns. Ail covenants and
agreements herein by the Issuer shall bind its successors and
assigns, whether so expressed or not.
Section 6.06. Severability. In case any provision herein
shall be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 6.07. Benefits of Aqreement. Nothing herein,
express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any benefit or any
legal or equitable right, remedy, or claim hereunder.
Section 6.08. Entire Aqreement. This Agreement and the Bond
Resolution constitute the entire agreement between the parties
hereto relative to the Bank acting as Paying Agent/Registrar and
if any conflict exists between this Agreement and the Bond
Resolution, the Bond Resolution shall govern.
Section 6.09. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same
Agreement.
Section 6.10. Termination. This Agreement will terminate
(i) on the date of final payment of the principal of and interest
on the Securities to the Holders thereof or (ii) may be earlier
terminated by either party upon sixty (60) days written notice;
provided, however, an early termination of this Agreement by
either party shall not be effective until (a) a successor Paying
Agent/Registrar has been appointed by the Issuer and such
appointment accepted and (b) notice given to the Holders of the
Securities of the appointment of a successor Paying
Agent/Registrar. Furthermore, the Bank and Issuer mutually agree
that the effective date of an early termination of this Agreement
shall not occur at any time which would disrupt, delay or
otherwise adversely affect the payment of the Securities.
Upon an early termination of this Agreement, the Bank agrees
to promptly transfer and deliver the Security Register (or a copy
thereof), together with other pertinent books and records relating
0118022
to the Securities, to the successor Paying Agent/Registrar
designated and appointed by the Issuer.
The provisions of Section 1.02 and of Article Five shall
survive and remain in full force and effect following the
termination of this Agreement.
Section 6.11. Governin Law. This Agreement shall be
construed in accordance with and governed by the laws of the State
of Texas.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
TEXAS COMMERCE TRUST
NATIONAL ASSOCIATION
COMPANY,
[SEAL]
Attest:
Title:
BY
Title:
Mailing Address:
Debt Administration Division
P. O. Box 2320
Dallas, Texas 75221-2320
Delivery Address:
Debt Administration Division
1201 Elm Street, 30th Floor
Dallas, Texas 75201
CITY OF SOUTHLAKE, TEXAs
(CITY SEAL)
Attest:
BY
Mayor
Address: 667 N. Carroll Avenue
Southlake, Texas 76092
City Secretary
g118022
--11-
Fort Worth Star-Telegram
400 W.SEVENTH L4,'FiEET•FORT WORTH,TEXAS 76102
E STATE OF TEXAS
dill my of Tarrant
Before me, a Notary Public in and for said County and State , this day
personally appeared PENNY GRAY Billing Specialist for the Fort Worth
Star-Telegram, published by the Star-Telegram Inc . at Fort Worth , in Tarrant
County, Texas ; and who, after being duly sworn, did depose and say that the
following clipping of an advertisement was published in the above named
paper on the following dates :
T TOTAL
DATE AD INVOICE NO. DESCRIPTION AD SIZE iNCH/UNE RATE AMOUNT
SEP 24 2549807 CL . 358 1X45 L 45 . 43 19. 35
sep24
NOTICE OF PUBLIC
HEAR INC
NOTICE IS HEREBY GIV-
EN TO ALL INTERESTED
PER SONS that the City Coun-
cil of the City of Southlake,
Texas,will beholding apublic -
hearing during the Regular
City Council meeting to be
held on October 5 1993,beggin-
ning aT ZOD .m.the meeiln9 _.............. .. ........._--........ ......._....-.pp -�- ................
will be held in the City Council
2-4A-AAAL.6.,)(
Chambers of City Hall, 667
North Carroll Avenge,South- 1%
lake, Texas. The purpose of N E D
SUBSCRIBED AND SWORN lhepublcheanngistocpnsltl- THIS THE 24th DAY OR SEPT. , 1993
111/ er the following ordinance: r"�
ORDINANCE NO.596 r
AN ORDINANCE authoriz-
ngtheissuanceof"CITY OF NOTARY PUBLIC 6` --
SOUTHLAKE TEXAS - -
GENERAL OALIGATION
REFUNDING AND IM-
PROVEMENT BONDS,SE- TARRANT COUNTY, TEXAS
c ,�,,,RIES 1993"- specifying the
.......__..._._.._ _ ..—._......_. _ _.... . p terms and 1•eatures of said_+act. t�h
?? bonds.annuli
al agavVgrinuing to
`rest annual ad valorem tax fo
i• �, the payment of said bonds;
,'and resolving other matters
---._._ _......_.....__.. _--- _ .......- riwp.���, Incident and related to the is-
1,��`;,...M`��"livervof s le,paydse nclud de-
inng
�,,,the approval and execution of
a Paying Agent/Registrar - - --- ---
Agreement,a Purchase Con-
tract and Special Escrow
Agreemnet and the approval
and distribution of an Official
Statement pertaining thereto;
and providing an effective
TEAR ALONG Citv'of South lake,Texas ) RETURN THE LOWER PORTION WITH YOUR PAYMENT
Sandra L.LeGrand
City Secretary
REMIT TO : 400 W . SEVENTH , FW, TX 76102
For tcrth tsar-Tele ram ZT�,�:C I T 5 7 AMOUNT
19 . 35
1 1
1��,f
t.;;14 PAGE OF
CITY OF SOUTHLAKE
S
667 N CARROLL AVE PLEASE PAY
19. 35
SOUTHLAKE TX 76092-9595 PLE PLE AMOUNT
ATTN : SANDY LEGRAND
PLEASE WRITE IN AMOUNT ENCLOSED