1240 ORDINANCE NO. 1240
AN ORDINANCE authorizing the issuance of "CITY OF SOUTHLAKE, TEXAS,
TAX NOTES, SERIES 2021"; specifying the terms and features of said
notes; levying a continuing direct annual ad valorem tax for the payment of
said notes; and resolving other matters incident and related to the
issuance, sale, payment and delivery of said notes, including the approval
and execution of a Paying Agent/Registrar Agreement and a Purchase
Letter; and providing an effective date.
WHEREAS, pursuant to Texas Government Code, Chapter 1431, as amended,
(hereinafter called the "Act"), the City Council (the "Council) of the City of Southlake, Texas (the
"City") is authorized and empowered to issue anticipation notes to pay contractual obligations to
be incurred (i) for the construction of any public work and (ii) for the purchase of materials,
supplies, equipment, machinery, buildings, lands and rights-of-way for the City's authorized needs
and purposes; and
WHEREAS, in accordance with the provisions of the Act, the Council hereby finds and
determines that anticipation notes should be issued and sold at this time to finance the costs of
paying contractual obligations to be incurred for(i) the acquisition of public safety equipment and
vehicles and (ii) professional services rendered in relation to such projects and the financing
thereof; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS:
SECTION 1: Authorization - Designation - Principal Amount - Purpose. Tax notes of the
City shall be and are hereby authorized to be issued in the aggregate principal amount of
$3,753,000 to be designated and bear the title "CITY OF SOUTHLAKE, TEXAS TAX NOTES,
SERIES 2021" (hereinafter referred to as the "Notes"), for the purpose of paying contractual
obligations to be incurred for (i) acquiring, constructing, improving, and maintaining streets,
throroughfares, alleyways and sidewalks within the City, including related storm drainage
improvememnts, traffic signalization and signage, traffic management equipment, creek erosion,
bridge and culvert improvements and utility relocations and the acquisition of land therefor and
(ii) professional services rendered in relation to such projects and the financing thereof, in
conformity with the Constitution and laws of the State of Texas, including the Act.
SECTION 2: Fully Registered Obligations - Note Date - Authorized Denominations -
Stated Maturity- Interest Rate. The Notes are issuable in fully registered form only; shall be dated
May 1, 2021 (the "Note Date"), shall be in denominations of $100,000 or any integral multiple of
$1,000 in excess thereof, and shall become due and payable on February 15, 2026 (the "Stated
Maturity").
The Notes shall bear interest from the date of their delivery to the initial purchasers until
paid at the per annum rate of 0.830%. The amount of interest to be paid on the Notes shall be
calculated on the basis of a 360-day year of twelve 30-day months, and such accrued interest
shall be payable on February 15 and August 15 of each year, commencing on February 15, 2022.
Upon the occurrence of a Determination of Taxability (as defined below) and for as long
as the Notes remain outstanding, the interest rate on the Notes shall convert to the Taxable Rate
(as defined below). In addition, upon a Determination of Taxability, the City shall pay to the holder
of the Notes (a) an additional amount equal to the difference between (i) the amount of interest
102260694.5/1001164484
actually paid on the Notes during the Taxable Period (as defined below) and (ii) the amount of
interest that would have been paid during the Taxable Period had the Notes borne interest at the
Taxable Rate, and (b) an amount equal to any interest, penalties on overdue interest and other
amounts owed under the Code by holder of the Notes as a result of the Determination of
Taxability.
"Determination of Taxability" means the occurrence, after the date hereof, of (a) a
final ruling or judgment entered by a state or federal court of competent jurisdiction or (b)
an official and final action taken or announced by the Internal Revenue Service or by a
federal or state official, in each case determining that an Event of Taxability has occurred;
provided, however, that no such ruling or judgment or official action of the Internal
Revenue Service or by a federal or state official will be considered final for this purpose
unless the City or the holder of the Notes has been given written notice and, if it is so
desired and is legally allowed, the City and the holder of the Notes, as applicable, have
been afforded the opportunity to contest the same, and until the conclusion of any
appellate review, if sought.
"Event of Taxability" means the taking of any action by the City, or the failure to
take any action by the City, or the making by the City of any misrepresentation in the
Ordinance or any tax certificate required to be given in connection with the issuance, sale
or delivery of the Notes, any of which has the effect of causing interest paid or payable on
the Notes to become includable, in whole or in part, in the gross income of the registered
owner or any prior registered owner for federal income tax purposes.
"Taxable Period" means the period of time between (a) the date that interest on
the Notes is deemed to be includable in the gross income of the holder thereof for federal
income tax purposes as a result of a Determination of Taxability, and (b) the date of the
Determination of Taxability.
"Taxable Rate" means 1.05% per annum.
Any payment of principal of or interest on the Notes not made on the due date shall begin
to accrue interest at the Default Rate (as defined below), and, if such payment remains delinquent
for a period of time in excess of 90 days, interest on the entire principal amount of the Notes shall
accrue at the Default Rate until the payment default has been cured.
"Default Rate" means a per annum rate equal to the then-current interest rate on
the Notes plus 3.00%.
SECTION 3: Terms of Payment - Paying Agent/Registrar. The principal of, premium, if
any, and the interest on the Notes, due and payable by reason of maturity, or otherwise, shall be
payable only to the registered owners or holders of the Notes (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 The Bank of New York Mellon Trust Company, N.A.,
Dallas, Texas, to serve as Paying Agent/Registrar for the Notes is hereby approved and
confirmed. Books and records relating to the registration, payment, transfer and exchange of the
Notes (the "Security Register") shall at all times be kept and maintained on behalf of the City by
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the Paying Agent/Registrar, as provided herein and 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 or Mayor Pro Tern and City Secretary are authorized to execute and deliver
such Paying Agent/Registrar Agreement in connection with the delivery of the Notes. The City
covenants to maintain and provide a Paying Agent/Registrar at all times until the Notes 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 Notes, 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 interest on the Notes shall be payable to the Holder 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 the 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 provided, however, the
final installment of principal or upon the redemption of the Notes shall be paid only upon
presentation and surrender of the Notes to the Paying Agent/Registrar for cancellation at its
designated offices, initially in East Syracuse, New York (the "Designated Payment/Transfer
Office").. If the date for the payment of the principal of or interest on the Notes shall be a Saturday,
Sunday, a legal holiday, or a day when banking institutions in the city where 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 fifteen (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.
SECTION 4: Redemption.
(a) Optional Redemption. The Notes shall be subject to redemption prior to maturity,
at the option of the City, in whole and not in part, on any date 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 an optional
redemption date for the Notes (unless a shorter notification period shall be satisfactory to the
Paying Agent/Registrar), the City shall notify the Paying Agent/Registrar in writing of the decision
to redeem Notes, the principal amount of the Stated Maturity to be redeemed, and the date of
redemption therefor. The decision of the City to exercise the right to redeem Notes shall be
entered in the minutes of the governing body of the City.
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(c) Mandatory Redemption. The Notes shall be subject to mandatory redemption in
part prior to maturity at the redemption price of par and accrued interest to the date of redemption
on the respective dates and in principal amounts as follows:
Principal
Redemption Date Amount ($)
February 15, 2022 1,067,000
February 15, 2023 663,000
February 15, 2024 669,000
February 15, 2025 674,000
February 15, 2026* 680,000
* maturity date
Approximately forty-five (45) days prior to each mandatory redemption date for the Notes,
the Paying Agent/Registrar shall select by lot the numbers of the Notes within to be redeemed on
the next following February 15 from moneys set aside for that purpose in the Interest and Sinking
Fund (as hereinafter defined). Any Note not selected for prior redemption shall be paid on the
date of Stated Maturity.
The principal amount of the Notes required to be redeemed on a mandatory redemption
date may be reduced, at the option of the City, by the principal amount of Notes which, at least
50 days prior to the mandatory redemption date, shall have been acquired by the City at a price
not exceeding the principal amount of such Notes plus accrued interest to the date of purchase
thereof, and delivered to the Paying Agent/Registrar for cancellation.
(d) Notice of Redemption. Not less than thirty(30) days prior to a redemption date for
the Notes, 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 Note to be redeemed at the
address of the Holder appearing on the 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.
All notices of redemption shall (i) specify the date of redemption for the Notes, (ii) identify
the Notes 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
Notes to be redeemed shall become due and payable on the redemption date specified, and the
interest thereon, shall cease to accrue from and after the redemption date, and (v) specify that
payment of the redemption price for the Notes, shall be made at the principal office of the Paying
Agent/Registrar only upon presentation and surrender thereof by the Holder. If a Note 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 Note 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 Note at the then applicable redemption price are held
for the purpose of such payment by the Paying Agent/Registrar.
(e) Conditional Notice of Redemption. With respect to any optional redemption of the
Notes, unless certain prerequisites to such redemption required by this Ordinance have been met
and moneys sufficient to pay the principal of and premium, if any, and interest on the Notes to be
redeemed shall have been received by the Paying Agent/Registrar prior to the giving of such
notice of redemption, such notice may state that said redemption may, at the option of the City,
be conditional upon the satisfaction of such prerequisites and receipt of such moneys by the
102260694.5/1001164484 4
Paying Agent/Registrar on or prior to the date fixed for such redemption, or upon any prerequisite
set forth in such notice of redemption. If a conditional notice of redemption is given and such
prerequisites to the redemption and sufficient moneys are not received, such notice shall be of no
force and effect, the City shall not redeem such Notes and the Paying Agent/Registrar shall give
notice, in the manner in which the notice of redemption was given, to the effect that the Notes
have not been redeemed.
SECTION 5: Registration - Transfer - Exchange of Notes - Predecessor Notes. The
Paying Agent/Registrar shall obtain, record, and maintain in the Security Register the name and
address of each and every owner of the Notes issued under and pursuant to the provisions of this
Ordinance, or if appropriate, the nominee thereof. Any Note may be transferred or exchanged for
Notes of other authorized denominations by the Holder, in person or by his duly authorized agent,
upon surrender of such Note to the Paying Agent/Registrar 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 Note (other than the Initial Note authorized in Section 7 hereof)for
transfer at the Designated Payment/Transfer Office of the Paying Agent/Registrar, the Paying
Agent/Registrar shall register and deliver, in the name of the designated transferee or transferees,
one or more new Notes of authorized denominations and having the same Stated Maturity and of
a like aggregate principal amount as the Note or Notes surrendered for transfer.
At the option of the Holder, Notes (other than the Initial Note authorized in Section 7
hereof) may be exchanged for other Notes of authorized denominations and having the same
Stated Maturity, bearing the same rate of interest and of like aggregate principal amount as the
Notes surrendered for exchange, upon surrender of the Notes to be exchanged at the Designated
Payment/Transfer Office of the Paying Agent/Registrar. Whenever any Notes are surrendered
for exchange, the Paying Agent/Registrar shall register and deliver new Notes to the Holder
requesting the exchange.
All Notes issued in any transfer or exchange of Notes 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 Notes surrendered in such transfer or
exchange.
All transfers or exchanges of Notes 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.
Notes canceled by reason of an exchange or transfer pursuant to the provisions hereof
are hereby defined to be "Predecessor Notes," evidencing all or a portion, as the case may be, of
the same obligation to pay evidenced by the new Note or Notes registered and delivered in the
exchange or transfer therefor. Additionally, the term "Predecessor Notes" shall include any
mutilated, lost, destroyed, or stolen Note for which a replacement Note has been issued,
registered, and delivered in lieu thereof pursuant to the provisions of Section 10 hereof and such
new replacement Note shall be deemed to evidence the same obligation as the mutilated, lost,
destroyed, or stolen Note.
102260694.5/1001164484 5
SECTION 6: Execution - Registration. The Notes shall be executed on behalf of the City
by the Mayor or Mayor Pro Tern under its seal reproduced or impressed thereon and
countersigned by the City Secretary. The signature of said officers on the Notes may be manual
or facsimile. Notes bearing the manual or facsimile signatures of individuals who are or were the
proper officers of the City on the Note 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 Notes to the initial purchaser and with respect to Notes delivered in
subsequent exchanges and transfers, all as authorized and provided in Texas Government Code,
Chapter 1201, as amended.
No Note shall be entitled to any right or benefit under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Note either a certificate of registration
substantially in the form provided in Section 8(c), 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 8(d), manually executed by an authorized officer,
employee or representative of the Paying Agent/Registrar, and either such certificate duly signed
upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly
certified, registered, and delivered.
SECTION 7: Initial Note. The Notes herein authorized shall be initially issued as a single
fully registered note in the total principal amount stated in Section 1 hereof and numbered T-1
(hereinafter called the "Initial Note") and the Initial Note shall be registered in the name of the
initial purchaser or the designee thereof. The Initial Note shall be the Note submitted to the Office
of the Attorney 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.
Any time after the delivery of the Initial Note, the Paying Agent/Registrar, pursuant to written
instructions from the initial purchaser, or the designee thereof, shall cancel the Initial Note
delivered hereunder and exchange therefor a definitive Note of authorized denomination, the
Stated Maturity, principal amount and bearing the interest rate 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, or the designee thereof, and such other information
and documentation as the Paying Agent/Registrar may reasonably require.
SECTION 8: Forms.
(a) Forms Generally. The Notes, 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 Notes, 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 in the event the Notes, or any maturities thereof, are
purchased with insurance 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
Notes as evidenced by their execution. Any portion of the text of any Notes may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the Note.
The definitive Note and the Initial Note shall be printed, lithographed, engraved,
typewritten, photocopied or otherwise reproduced in any other similar manner, all as determined
by the officers executing such Notes as evidenced by their execution thereof.
102260694.5/1001164484 6
(b) Form of Notes.
REGISTERED REGISTERED
NO. [R- 1 [T-1] $
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF SOUTHLAKE, TEXAS,
TAX NOTE, SERIES 2021
Note Date: Interest Rate: Stated Maturity: Delivery Date:
May 1, 2021 0.830% February 15, 2026 May 27, 2021
Registered Owner:
Principal Amount: DOLLARS
The City of Southlake (hereinafter referred to as the "City"), a body corporate and
municipal corporation in the Counties of Tarrant and Denton, State of Texas, for value received,
hereby promises to pay to the Registered Owner named above, or the registered assigns thereof,
solely from the revenues hereinafter identified, on the Stated Maturity date specified above the
Principal Amount stated above (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 interest payment
date next preceding the "Registration Date" of this Note appearing below (unless this Note bears
a "Registration Date" as of an interest payment date, in which case it shall bear interest from such
date, or unless the "Registration Date" of this Note is prior to the initial interest payment date in
which case it shall bear interest from the Delivery 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, 2022. In the event
a Determination of Taxability (as defined in the Ordinance) occurs, the Note shall bear interest at
the Taxable Rate (as defined in the Ordinance) effective as of the effective date of the
Determination of Taxability. Principal of this Note is payable in the year of its Stated Maturity or
redemption to the registered owner hereof by The Bank of New York Mellon Trust Company, N.A.,
Dallas, Texas (the "Paying Agent/Registrar"), upon presentation and surrender, at its designated
offices, initially in East Syracuse, New York, or, with respect to a successor Paying
Agent/Registrar, at the designated offices of such successor (the "Designated Payment/Transfer
Office"). Principal installments and interest on this note are payable to the registered owner of
this Note 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.
provided, however, the final principal installment of the Note or principal upon prior redemption
shall be paid only upon presentation and surrender of the Note to the Paying Agent/Registrar for
cancellation at its Designated Payment and Transfer Office. If the date for the payment of the
principal of or interest on the Notes shall be a Saturday, Sunday, a legal holiday, or a day on
which 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 on which banking institutions are authorized to close; and payment on such date
102260694.5/1001164484 7
shall have the same force and effect as if made on the original date payment was due. All
payments of principal of, premium, if any, and interest on this Note 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.
This Note is one of the series specified in its title issued in the aggregate principal amount
of$3,753,000 (herein referred to as the "Notes")for the purpose of paying contractual obligations
to be incurred for (i) acquiring, constructing, improving, and maintaining streets, throroughfares,
alleyways and sidewalks within the City, including related storm drainage improvememnts, traffic
signalization and signage, traffic management equipment, creek erosion, bridge and culvert
improvements and utility relocations and the acquisition of land therefor, and (ii) professional
services rendered in relation to such projects and the financing thereof, under and in strict
conformity with the Constitution and laws of the State of Texas and pursuant to an Ordinance
adopted by the City Council of the City (herein referred to as the "Ordinance").
The Notes shall be subject to mandatory redemption prior to maturity at the redemption
price of par and accrued interest to the date of redemption on the respective dates and in principal
amounts as follows:
Principal
Redemption Date Amount ($)
February 15, 2022 1,067,000
February 15, 2023 663,000
February 15, 2024 669,000
February 15, 2025 674,000
February 15, 2026* 680,000
* maturity date
The particular Notes to be redeemed on each redemption date shall be chosen by lot by
the Paying Agent/Registrar; provided, however, that the principal amount of Notes required to be
redeemed pursuant to the operation of such mandatory redemption provisions may be reduced,
at the option of the City, by the principal amount of Notes which, at least 50 days prior to a
mandatory redemption date shall have been acquired by the City at a price not exceeding the
principal amount of such Notes plus accrued interest to the date of purchase thereof, and
delivered to the Paying Agent/Registrar for cancellation.
The Notes may be redeemed prior to their Stated Maturity, at the option of the City, in
whole and not in part, on any date at the redemption price of par, together with accrued interest
to the date of redemption.
At least thirty (30) days prior to a redemption date, the City shall cause a written notice of
such redemption to be sent by United States Mail, first class postage prepaid, to the registered
owners of each Certificate to be redeemed at the address shown on the Security Register and
subject to the terms and provisions relating thereto contained in the Ordinance. If a Note shall
have been duly called for redemption and notice of such redemption duly given, then upon the
redemption date such Note shall become due and payable, and, if moneys for the payment of the
redemption price and the interest accrued 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, interest shall
cease to accrue and be payable from and after the redemption date on the principal amount
redeemed.
102260694.5/1001164484 8
With respect to any optional redemption of the Notes, unless moneys sufficient to pay the
principal of and premium, if any, and interest on the Notes to be redeemed shall have been
received by the Paying Agent/Registrar prior to the giving of such notice of redemption, such
notice may state that said redemption is conditional upon the receipt of such moneys by the
Paying Agent/Registrar on or prior to the date fixed for such redemption, or upon the satisfaction
of any prerequisites set forth in such notice of redemption; and, if sufficient moneys are not
received, such notice shall be of no force and effect, the City shall not redeem such Notes and
the Paying Agent/Registrar shall give notice, in the manner in which the notice of redemption was
given, to the effect that the Notes have not been redeemed.
Upon the occurrence of a Determination of Taxability (as defined below) and for as long
as the Notes remain outstanding, the interest rate on the Notes shall convert to the Taxable Rate
(as defined below). In addition, upon a Determination of Taxability, the City shall pay to the holder
of the Notes (a) an additional amount equal to the difference between (i) the amount of interest
actually paid on the Notes during the Taxable Period (as defined below) and (ii) the amount of
interest that would have been paid during the Taxable Period had the Notes borne interest at the
Taxable Rate, and (b) an amount equal to any interest, penalties on overdue interest and other
amounts owed under the Code by holder of the Notes as a result of the Determination of
Taxability.
"Determination of Taxability" means the occurrence, after the date hereof, of (a) a
final ruling or judgment entered by a state or federal court of competent jurisdiction or (b)
an official and final action taken or announced by the Internal Revenue Service or by a
federal or state official, in each case determining that an Event of Taxability has occurred;
provided, however, that no such ruling or judgment or official action of the Internal
Revenue Service or by a federal or state official will be considered final for this purpose
unless the City or the holder of the Notes has been given written notice and, if it is so
desired and is legally allowed, the City and the holder of the Notes, as applicable, have
been afforded the opportunity to contest the same, and until the conclusion of any
appellate review, if sought.
"Event of Taxability" means the taking of any action by the City, or the failure to
take any action by the City, or the making by the City of any misrepresentation in the
Ordinance or any tax certificate required to be given in connection with the issuance, sale
or delivery of the Notes, any of which has the effect of causing interest paid or payable on
the Notes to become includable, in whole or in part, in the gross income of the registered
owner or any prior registered owner for federal income tax purposes.
"Taxable Period" means the period of time between (a) the date that interest on
the Notes is deemed to be includable in the gross income of the holder thereof for federal
income tax purposes as a result of a Determination of Taxability, and (b) the date of the
Determination of Taxability.
"Taxable Rate" means 1.05% per annum.
Any payment of principal of or interest on the Notes not made on the due date shall begin
to accrue interest at the Default Rate (as defined below), and, if such payment remains delinquent
for a period of time in excess of 90 days, interest on the entire principal amount of the Notes shall
accrue at the Default Rate until the payment default has been cured.
102260694.5/1001164484 9
"Default Rate" means a per annum rate equal to the then-current interest rate on
the Notes plus 3.00%.
The Notes 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 Note 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 Notes; the terms and conditions relating to the
transfer or exchange of this Note; 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 Note 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 Note, 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 Notes 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 Note as the owner entitled to
payment of principal hereof at its Stated Maturity, 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 fifteen (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.
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 Notes 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
Notes 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 Notes 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 Notes by the levy of a tax as aforestated. In case any
provision in this Note shall be invalid, illegal, or unenforceable, the validity, legality, and
102260694.5/1001164484 10
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The terms and provisions of this Note 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 Note to be duly
executed under the official seal of the City as of the Note Date.
CITY OF SOUTHLAKE, TEXAS
[Mayor][Mayor Pro Tern]
COUNTERSIGNED:
City Secretary
(City Seal)
(c) Form of Registration Certificate of Comptroller of Public Accounts to appear on
Initial Note only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS ( REGISTER NO.
THE STATE OF TEXAS
I HEREBY CERTIFY that this Note 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)
(d) Form of Certificate of Paying Agent/Registrar to appear on definitive Note only.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Note has been duly issued and registered under the provisions of the
within-mentioned Ordinance; the note or notes of the above entitled and designated series
originally delivered having been approved by the Attorney General of the State of Texas and
102260694.5/1001164484 11
registered by the Comptroller of Public Accounts, as shown by the records of the Paying
Agent/Registrar.
The designated office of the Paying Agent/Registrar in East Syracuse, New York is the
Designated Payment/Transfer Office for this Note.
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., Dallas, Texas,
as Paying Agent/Registrar
Registration Date:
By:
(e) Form of Assignment.
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 Note and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Note on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
NOTICE: The signature on this assignment
must correspond with the name of the
Signature guaranteed: registered owner as it appears on the face of
the within Note in every particular.
SECTION 9: Levy of Taxes. To provide for the payment of the "Debt Service
Requirements" of the Notes, being (i) the interest on the Notes and (ii) a sinking fund for their
payment at maturity or redemption 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 Notes 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 Notes 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 Notes shall be kept and maintained by the City at all times while the Notes
are Outstanding, and the taxes collected for the payment of the Debt Service Requirements on
the Notes shall be deposited to the credit of a "Special 2021 Note 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 Notes.
102260694.5/1001164484 12
The Mayor, Mayor Pro Tern, City Manager, City Secretary and Chief Financial Officer of
the City, individually or jointly, are hereby authorized and directed to cause to be transferred to
the Paying Agent/Registrar for the Notes, 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 Notes 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 Notes.
SECTION 10: Mutilated - Destroyed - Lost and Stolen Notes. In case any Note shall be
mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may execute and deliver a
replacement Note of like form and tenor, and in the same denomination and bearing a number
not contemporaneously outstanding, in exchange and substitution for such mutilated Note, or in
lieu of and in substitution for such destroyed, lost or stolen Note, 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 Note, 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 in their reasonable judgement. All expenses and charges associated with such
indemnity and with the preparation, execution and delivery of a replacement Note shall be borne
by the Holder of the Note mutilated, or destroyed, lost or stolen.
Every replacement Note 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 Notes; notwithstanding the enforceability of payment by anyone of the
destroyed, lost, or stolen Notes.
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 Notes.
SECTION 11: 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 Notes, 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.
Notes 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 Notes or the principal amount(s)thereof at maturity, 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 or consulting 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 Notes, or the principal amount(s) thereof, on and
prior to the Stated Maturity 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 Notes 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.
102260694.5/1001164484 13
The term "Government Securities", as used herein, means (i) direct noncallable
obligations of the United States of America, including obligations the principal of and interest on
which are unconditionally guaranteed by the United States of America, (ii) noncallable obligations
of an agency or instrumentality of the United States, including obligations unconditionally
guaranteed or insured by the agency or instrumentality and on the date of their acquisition or
purchase by the City are rated as to investment quality by a nationally recognized investment
rating firm not less than AAA or its equivalent, (iii) noncallable obligations of a state or an agency
or a county, municipality, or other political subdivision of a state that have been refunded and on
the date of their acquisition or purchase by the City, are rated as to investment quality by a
nationally recognized investment rating firm not less than AAA or its equivalent, and (iv)any other
authorized securities or obligations under applicable law that may be used to defease obligations
such as the Notes.
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
Notes, or any principal amount(s) thereof, or 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 Notes and remaining unclaimed for a period of three (3) years after the Stated
Maturity or applicable redemption date of the Notes 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.
SECTION 12: Ordinance a Contract-Amendments - Outstanding Notes. 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 Note 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 written consent of Holders holding a majority in aggregate
principal amount of the Notes then Outstanding, amend, add to, or rescind any of the provisions
of this Ordinance; provided that, without the consent of all Holders of Outstanding Notes, 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 Notes, reduce the principal amount thereof, 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 Notes, (2) give any preference to any Note over any other Note, or
(3) reduce the aggregate principal amount of Notes required to be held by Holders for consent to
any such amendment, addition, or rescission. Notwithstanding anything in this Ordinance to the
contrary, so long as Key Government Finance Inc., or an entity related to Key Government
Finance Inc., is the owner of 100% of the Outstanding Bonds, no change or amendment to this
Ordinance will be made without the prior written approval of Key Government Finance Inc.
The term "Outstanding" when used in this Ordinance with respect to Notes means, as of
the date of determination, all Notes theretofore issued and delivered under this Ordinance, except:
(1) those Notes cancelled by the Paying Agent/Registrar or delivered to the
Paying Agent/Registrar for cancellation;
102260694.5/1001164484 14
(2) those Notes 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 Notes which have been replaced
with Notes registered and delivered in lieu thereof as provided in Section 10
hereof.
SECTION 13: Covenants to Maintain Tax-Exempt Status.
(a) Definitions. When used in this Section 13, the following terms have the following
meanings:
"Closing Date" means the date on which the Notes 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 Notes.
"Investment" has the meaning set forth in Section 1.148-1(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 Notes are invested and which is not acquired to carry
out the governmental purposes of the Notes.
"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 Notes. Any reference to 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 Notes has the meaning set forth in Section 1.148-4 of the Regulations.
(b) Not to Cause Interest to Become Taxable. 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 Note 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 Note, the City shall comply with each of the specific
covenants in this Section.
102260694.5/1001164484 15
(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 Notes:
(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 Notes, 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 Notes
or any property the acquisition, construction or improvement of which is to
be financed or refinanced directly or indirectly with such Gross Proceeds,
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 Notes 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 Higher 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 Notes 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 Notes.
(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 Notes to be federally guaranteed within the meaning of section 149(b) of
the Code and the Regulations and rulings thereunder.
(g) Information Report. 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.
102260694.5/1001164484 16
(h) Rebate of Arbitrage Profits. Except to the extent otherwise provided in Section
148(f) of the Code and the Regulations and rulings thereunder:
(1) The City shall account for all Gross Proceeds (including all receipts,
expenditures, and investments thereof) on its books of account
separately and apart from all other funds(and receipts, expenditures, and
investments thereof)and shall retain all records of accounting for at least
six (6) years after the day on which the last outstanding Note is
discharged. However, to the extent permitted by law, the City may
commingle Gross Proceeds of the Notes 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 Notes until six (6) years after the final
Computation Date.
(3) As additional consideration for the purchase of the Notes by the
Purchaser 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 from the construction fund, other appropriate fund, or if permitted
by applicable Texas statute, regulation or opinion of the Attorney General
of the State of Texas, the Interest and Sinking Fund, the amount that
when added to the future value of previous rebate payments made for
the Notes 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
made 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 Rebate Amount owed to
it, interest thereon, and any penalty imposed under Section 1.148-3(h)of
the Regulations.
(i) Elections. The City hereby directs and authorizes the Mayor, Mayor Pro Tem, City
Manager and Chief Financial Officer, either or any combination of them, to make elections
102260694.5/1001164484 17
permitted or required pursuant to the provisions of the Code or the Regulations, as they deem
necessary or appropriate in connection with the Notes, in the Certificate as to Tax Exemption or
similar or other appropriate certificate, form or document.
(j) Qualified Tax Exempt Obligations. In accordance with the provisions of paragraph
(3) of subsection (b) of Section 265 of the Code, the City hereby designates the Notes to be
"qualified tax exempt obligations" in that the Notes 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 2021 will not exceed
$10,000,000.
SECTION 14: Sale of Notes. The offer of Key Government Finance, Inc. (the"Purchaser")
to purchase the Notes in accordance with a Purchase Letter, dated as of May 4, 2021, attached
hereto as Exhibit B and incorporated herein by reference as a part of this Ordinance for all
purposes is hereby accepted, and the sale of the Notes to said Purchaser is hereby approved
and authorized, and declared to be in the best interest of the City. The Mayor or Mayor Pro Tern
and City Secretary are hereby authorized and directed to execute the acceptance clause thereof
for and on behalf of the City and as the act and deed of the Council. Delivery of the Notes to the
Purchaser shall occur as soon as possible upon payment being made therefor in accordance with
the terms of sale.
SECTION 15: Control and Custody of Notes. 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 Notes,
and shall take and have charge and control of the Initial Note pending the approval thereof by the
Attorney General, the registration thereof by the Comptroller of Public Accounts and the delivery
thereof to the initial purchasers.
SECTION 16: Proceeds of Sale. The proceeds of sale of the Notes, excluding amounts
to pay costs of issuance, shall be deposited in a construction fund maintained at the City's
depository bank. Pending expenditure for authorized projects and purposes, such proceeds of
sale may be invested in authorized investments in accordance with the provisions of Texas
Government Code, Chapter 2256, as amended, and the City's investment policies and guidelines,
and any investment earnings realized shall be expended for such authorized projects and
purposes or deposited in the Interest and Sinking Fund as shall be determined by the Council.
Any excess note proceeds, 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 17: 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.
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 Notes. 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
102260694.5/1001164484 18
Agent/Registrar, but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 18: Cancellation. All Notes surrendered for payment, transfer, exchange or
replacement, if surrendered to the Paying Agent/Registrar, shall be promptly canceled by it and,
if surrendered to the City, shall be delivered to the Paying Agent/Registrar and, if not already
canceled, shall be promptly canceled by the Paying Agent/Registrar. The City may at any time
deliver to the Paying Agent/Registrar for cancellation any Notes previously certified or registered
and delivered which the City may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly canceled by the Paying Agent/Registrar. All canceled Notes held by
the Paying Agent/Registrar shall be returned to the City.
SECTION 19: Legal Opinion. The Purchaser's obligation to accept delivery of the Notes
is subject to being furnished a final opinion of Norton Rose Fulbright US LLP, Dallas, Texas,
approving the Notes as to their validity, said opinion to be dated and delivered as of the date of
delivery and payment for the Notes. The City Council confirms the continuation of the
engagement of Norton Rose Fulbright US LLP as the City's bond counsel.
SECTION 20: CUSIP Numbers. CUSIP numbers may be printed or typed on the definitive
Notes. It is expressly provided, however, that the presence or absence of CUSIP numbers on
the definitive Notes shall be of no significance or effect as regards the legality thereof and neither
the City nor attorneys approving the Notes as to legality are to be held responsible for CUSIP
numbers incorrectly printed or typed on the definitive Notes.
SECTION 21: 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 22: Inconsistent Provisions. All 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 23: Governing 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 24: Effect of Headings. The Section headings herein are for convenience of
reference only and shall not affect the construction hereof.
SECTION 25: 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 26: 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 Council hereby declares that
this Ordinance would have been enacted without such invalid provision.
102260694.5/1001164484 19
SECTION 27: Further Procedures. Any one or more of the Mayor, Mayor Pro Tem, City
Manager, Chief Financial Officer and City Secretary are hereby expressly authorized, empowered
and directed from time to time and at any time to do and perform all such acts and things and to
execute, acknowledge and deliver in the name and on behalf of the City all agreements,
instruments, certificates or other documents, whether mentioned herein or not, as may be
necessary or desirable in order to carry out the terms and provisions of this Ordinance and the
issuance, sale and delivery of the Notes. In addition, prior to the initial delivery of the Notes, the
Mayor, Mayor Pro Tern, City Manager, Chief Financial Officer and City Secretary or Bond Counsel
to the City are each hereby authorized and directed to approve any changes or corrections to this
Ordinance or to any of the documents authorized and approved by this Ordinance: (i) in order to
cure any ambiguity, formal defect, or omission in this Ordinance or such other document; or(ii) as
requested by the Attorney General of the State of Texas or his representative to obtain the
approval of the Notes by the Attorney General. In the event that any officer of the City whose
signature shall appear on any document shall cease to be such officer before the delivery of such
document, such signature nevertheless shall be valid and sufficient for all purposes the same as
if such officer had remained in office until such delivery.
SECTION 28: Incorporation of Findings and Determinations. The findings and
determinations of the 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 29: Public Meeting. 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 Texas Government Code, Chapter 551, as amended.
SECTION 30: Effective Date. This Ordinance shall take effect and be in full force from
and after its adoption on the date shown below in accordance with Texas Government Code,
Section 1201.028, as amended.
[Remainder of page left blank intentionally]
102260694.5/1001164484 20
PASSED AND ADOPTED, May 4, 2021.
CITY OF SOUTHLAKE, TEXAS
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Mayor
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City Attorney
102260694.5/1001164484 S-1
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
102260694.5/1001164484 B-1
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT is entered into as of May 4, 2019 (this "Agreement"), by and between
The Bank of New York Mellon Trust Company, N.A., a banking association duly organized and
existing under the laws of the United States of America (the "Bank") and the City of Southlake,
Texas (the "Issuer"),
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the issuance of its "City of
Southlake, Texas Tax Notes, Series 2021 " (the "Securities"), dated May 1, 2021, such Securities
scheduled to be delivered to the initial purchasers thereof on or about June 3, 2021; 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 "Authorizing Document" (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 the transfer and exchange thereof as
provided herein and in the Authorizing Document.
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; provided however, notwithstanding anything herein or in Annex A to
the contrary, the aggregate value of this agreement shall be less than the dollar limitation set forth
in Section 2271.002(a)(2) of the Texas Government Code, as amended.
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).
102289378.1/1001164484
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, if any, 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.
"Authorizing Document" means the resolution, order, or ordinance of the
governing body of the Issuer pursuant to which the Securities are issued, as the
same may be amended or modified, including any pricing certificate related
thereto, certified by the secretary or any other officer of the Issuer and delivered to
the Bank.
"Bank Office" means the designated office of the Bank at the address
shown in Section 3.01 hereof. The Bank will notify the Issuer in writing of any
change in location of the Bank Office.
"Financial Advisor" means Hilltop Securities Inc.
"Holder" and "Security Holder" each means the Person in whose name a
Security is registered in the Security Register.
"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 Authorizing
Document).
"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
Authorizing Document.
"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.
102289378.1/1001164484 2
"Security Register" means a register maintained by the Bank on behalf of
the Issuer providing for the registration and transfers of Securities.
"Stated Maturity" means the date specified in the Authorizing Document 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 Paying Agent. As Paying Agent, the Bank shall pay, provided
adequate collected funds have been provided to it for such purpose by or on behalf of the Issuer,
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 following
address:
First Class/Registered/Certified Express Delivery/Courier By Hand Only
The Bank of New York The Bank of New York The Bank of New York Mellon
Mellon Trust Company, N.A. Mellon Trust Company, N.A. Trust Company, N.A.
Global Corporate Trust Global Corporate Trust Global Corporate Trust
P.O. Box 396 111 Sanders Creek Pkwy. Corporate Trust Window
East Syracuse, NY 13057 East Syracuse, NY 13057 101 Barclay Street, 1st Floor East
New York, NY 10286
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 (as defined in the Authorizing Document). 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 paying agent 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 Payment Dates. The Issuer hereby instructs the Bank to pay the principal
of and interest on the Securities on the dates specified in the Authorizing Document.
ARTICLE FOUR
REGISTRAR
Section 4.01 Security Register - Transfers and Exchanges. 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 containing such other
102289378.1/1001164484 3
information as may be reasonably required by the Issuer and subject to such reasonable
regulations as the Issuer and the Bank may prescribe. All transfers, exchanges and replacements
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 Financial Industry Regulatory Authority,
such written instrument to be in a form satisfactory to the Bank and 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 Securities. The Issuer shall provide additional Securities when needed to
facilitate transfers or exchanges thereof. The Bank covenants that such additional Securities, if
and when provided, 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 Register. 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.
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.
102289378.1/1001164484 4
Section 4.05 Return of Cancelled Securities. The Bank will, at such reasonable
intervals as it determines, surrender to the Issuer, all 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 Securities. The Issuer hereby
instructs the Bank, subject to the provisions of the Authorizing Document, 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, 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 mutilated, 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, destroyed, lost or stolen.
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
102289378.1/1001164484 5
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 the Issuer.
(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.
(g) The Bank is also authorized to transfer funds relating to the closing and initial
delivery of the Securities in the manner disclosed in the closing memorandum or letter as prepared
by the Issuer, the Financial Advisor or other agent. The Bank may act on a facsimile or e-mail
transmission of the closing memorandum or letter acknowledged by the Issuer, the Issuer's
financial advisor or other agent as the final closing memorandum or letter. The Bank shall not be
liable for any losses, costs or expenses arising directly or indirectly from the Bank's reliance upon
and compliance with such instructions.
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 - Paying Agent Account/Collateralization. A
paying agent account shall at all times be kept and maintained by the Bank for the receipt,
safekeeping, and disbursement of moneys received from the Issuer under this Agreement 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 paying agent accounts to the extent such
money is not insured by the Federal Deposit Insurance Corporation. Payments made from such
paying agent account shall be made by check drawn on such account unless the owner of the
Securities shall, at its own expense and risk, request an alternative method of payment.
Subject to the applicable unclaimed property laws of the State of Texas, any money
deposited with the Bank for the payment of the principal of, premium (if any), or interest on any
Security and remaining unclaimed for three years after final maturity of the Security has become
due and payable will be held by the Bank and disposed of only in accordance with Title 6 of the
Texas Property Code, as amended. The Bank shall have no liability by virtue of actions taken in
compliance with this provision.
102289378.1/1001164484 6
The Bank is not obligated to pay interest on any money received by it under this
Agreement.
This Agreement relates solely to money deposited for the purposes described herein, and
the parties agree that the Bank may serve as depository for other funds of the Issuer, act as
trustee under indentures authorizing other bond transactions of the Issuer, or act in any other
capacity not in conflict with its duties hereunder.
Section 5.06 Indemnification. 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 willful misconduct 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 Interpleader. 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 the
administrative office 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 in the State of
Texas to determine the rights of any Person claiming any interest herein.
In the event the Bank becomes involved in litigation in connection with this Section, the
Issuer, 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.
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.
Section 5.08 DTC 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", 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 Assignment. 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 permitted hereby to be given or furnished to the Issuer or
the Bank shall be mailed or delivered to the Issuer or the Bank, respectively, at the addresses
shown on the signature page(s) hereof.
102289378.1/1001164484 7
Section 6.04 Effect of Headings. The Article and Section headings herein are for
convenience of reference only and shall not affect the construction hereof.
Section 6.05 Successors and Assigns. All 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 Merger, Conversion, Consolidation, or Succession. Any corporation or
association into which the Bank may be merged or converted or with which it may be consolidated,
or any corporation or association resulting from any merger, conversion, or consolidation to which
the Bank shall be a party, or any corporation or association succeeding to all or substantially all
of the corporate trust business of the Bank shall be the successor of the Bank as Paying Agent
under this Agreement without the execution or filing of any paper or any further act on the part of
either parties hereto.
Section 6.08 Benefits of Agreement. 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 6.09 Entire Agreement. This Agreement and the Authorizing Document
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 Authorizing Document,
the Authorizing Document shall govern.
Section 6.10 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 6.11 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
has been given to the Holders of the Securities of the appointment of a successor Paying
Agent/Registrar. However, if the Issuer fails to appoint a successor Paying Agent/Registrar within
a reasonable time, the Bank may petition a court of competent jurisdiction within the State of
Texas to appoint a successor. Furthermore, the Bank and the 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 the other pertinent books and
records relating 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.
102289378.1/1001164484 8
Section 6.12 Iran, Sudan or Foreign Terrorist Organizations. The Bank represents
that neither it nor any of its parent company, wholly- or majority-owned subsidiaries, and other
affiliates is a company identified on a list prepared and maintained by the Texas Comptroller of
Public Accounts under Section 2252.153 or Section 2270.0201, Texas Government Code, and
posted on any of the following pages of such officer's internet website:
https://comptroller.texas.gov/purchasing/docs/sudan-list.pdf,
https://comptroller.texas.gov/purchasing/docs/iran-list.pdf, or
https://comptroller.texas.gov/purchasing/docs/fto-list.pdf.
The foregoing representation is made solely to comply with Section 2252.152, Texas
Government Code, and to the extent such Section does not contravene applicable Federal law
and excludes the Bank and each of its parent company, wholly- or majority-owned subsidiaries,
and other affiliates, if any, that the United States government has affirmatively declared to be
excluded from its federal sanctions regime relating to Sudan or Iran or any federal sanctions
regime relating to a foreign terrorist organization. The Bank understands "affiliate" to mean any
entity that controls, is controlled by, or is under common control with the Bank and exists to make
a profit.
Section 6.13 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas.
[Remainder of page left blank intentionally.]
102289378.1/1001164484 9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
By:
Title:
Address: 2001 Bryan Street, 10th Floor
Dallas, Texas 75201
102289378.1/1001164484 Signature Page to Paying Agent/Registrar Agreement
CITY OF SOUTHLAKE, TEXAS
By:
Mayor
Address: 1400 Main Street
Southlake, Texas 76092
Attest:
City Secretary
102289378.1/1001164484 Signature Page to Paying Agent/Registrar Agreement
ANNEX A
102289378.1/1001164484 A-1
EXHIBIT B
PURCHASE LETTER
102260694.5/1001164484 B-1
PURCHASE LETTER
May 4, 2021
City of Southlake, Texas
1400 Main Street
Southlake, Texas 76092
Re: $3,753,000 "City of Southlake, Texas, Tax Notes, Series 2021," dated May 1, 2021
Ladies and Gentlemen:
Key Government Finance, Inc. (the "Purchaser") hereby offers to purchase from the City
of Southlake, Texas (the "City") the captioned tax notes (the "Notes") and, upon acceptance of
this offer by the City, such offer will become a binding agreement between the Purchaser and the
City. This offer must be accepted by 10:00 p.m., Southlake, Texas, time, May 4, 2021, and if not
so accepted will be subject to withdrawal.
1. Purchase Price: The purchase price for the Notes is par, $3,753,000.
2. Terms of Notes: The Notes shall be issued in the principal amounts, shall bear interest at
such rate, mature on such date and in such amounts and have such other terms and
conditions as are set forth in the ordinance adopted by the City Council of the City on May
4, 2021 (the "Ordinance"), authorizing the issuance of the Notes, a copy of which has been
provided to the Purchaser. Pursuant to and as more fully described in the Ordinance, the
Notes shall be payable from the proceeds of an ad valorem tax levied, within the limitations
prescribed by law, upon all taxable property in the City.
THE NOTES MAY ONLY BE TRANSFERRED TO: (I) AN AFFILIATE OF THE
PURCHASER THAT CONTROLS, IS CONTROLLED BY, OR IS UNDER THE COMMON
CONTROL OF, THE PURCHASER AND EXISTS TO MAKE A PROFIT; (II)A "BANK" AS
DEFINED IN SECTION 3(A)(2) OF THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"); (III) AN "ACCREDITED INVESTOR" AS DEFINED IN
REGULATION D UNDER THE SECURITIES ACT; OR (IV) A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT.
3. Closing: The City shall deliver the Note to, or for the account of, the Purchaser and the
Purchaser shall purchase the Notes at 10:00 a.m. Dallas, Texas, time, on May 27, 2021,
or at such other time as shall be mutually agreed upon (hereinafter referred to as the
"Closing"). The Closing shall take place at the offices of Norton Rose Fulbright US LLP,
Dallas, Texas, or such other location as may be mutually agreed upon. The City will also
cause to be delivered to the Purchaser a signed copy of the Ordinance.
102289584.2/1001164484
4. Conditions to Closing: The Purchaser shall not have any obligation to consummate the
purchase of the Notes unless the following requirements have been satisfied prior to
Closing:
(a) The City shall have adopted the Ordinance authorizing the issuance of the Notes
with both the Notes and the Ordinance being in form and substance acceptable to
the Purchaser.
(b) Norton Rose Fulbright US LLP, Bond Counsel, shall have issued its approving
legal opinion as to the due authorization, issuance and delivery of the Notes and
as to the exemption of the interest thereon from federal income taxation, upon
which the Purchaser shall be entitled to rely.
(c) The Notes shall have been approved by the Attorney General of the State of Texas
and shall have been registered by the Comptroller of Public Accounts of the State
of Texas.
(d) Nothing shall have occurred prior to closing which in the reasonable opinion of the
Purchaser has had or could have a materially adverse effect on the City's
business, property or financial condition nor shall have there been a material
change, in the Purchaser's opinion, in the financial condition of the City.
(e) The City shall furnish a certificate or certificates, dated as of closing, of appropriate
officials of the City, to the effect that the representations and information of the City
contained in this Purchase Letter are true and correct when made and as of the
closing.
(f) The Purchaser shall have received such other documents and items reasonably
requested by the Purchaser.
(g) There has been no event, court decision, proposed law, or rule which may have
the effect of changing the federal tax incidents of the City, the Purchaser, or the
interest thereon of the Notes, or the transactions contemplated by this Purchase
Letter.
(h) There has been no national or international crisis, or suspension of stock exchange
trading, or banking moratorium materially affecting, in the Purchaser's opinion, the
market price of the Notes.
5. Nature of Purchase: The Purchaser acknowledges that no official statement or other
disclosure or offering document has been prepared in connection with the issuance and
sale of the Notes. The Purchaser is (i) an accredited investor as defined in the Securities
Act of 1933, Regulation D, 17 C.F.R. § 230.501(a), or (ii) a "qualified institutional buyer"
as defined under Rule 144A under the Securities Act of 1933 accustomed to purchasing
tax-exempt obligations such as the Notes. Norton Rose Fulbright US LLP, Bond Counsel,
has not undertaken steps to ascertain the accuracy or completeness of information
furnished to the Purchaser with respect to the City or the Notes, and the Purchaser has
not looked to that firm for, nor has that firm made, any representations to the Purchaser
with respect to that information. The Purchaser has satisfied itself that it may lawfully
purchase the Notes. The Notes (i) are not being registered under the Securities Act of
1933 and are not being registered or otherwise qualified for sale under the "Blue Sky" laws
and regulations of any state; (ii)will not be listed on any stock or other securities exchange;
102289584.2/1001164484 2
and (iii)will not carry any rating from any rating service. The Purchaser is familiar with the
financial condition and affairs of the City, particularly with respect to its ability to pay its ad
valorem tax-supported obligations such as the Notes. The Purchaser has received from
the City all information that it has requested in order for it to assess and evaluate the
security and source of payment for the Notes. The Purchaser is purchasing the Notes for
its own account or for that of an affiliate as evidence of a loan to the City and has no
present intention to make a public distribution or sale of the Notes. In no event will the
Purchaser sell the Notes to more than one subsequent purchaser, which purchaser will
be a sophisticated investor, unless an official statement or other disclosure document is
prepared with respect to such sale of the Notes.
6. Reporting: In consideration of the purchase of the Notes by the Purchaser during the
period the Notes are outstanding, the City agrees to provide the registered owners of the
Notes the following:
(a) Within 270 days after the end of its fiscal year, beginning with the fiscal year ending
2021, its audited financial statements, including operating statistics.
(b) Annual operating budgets for the upcoming financial year within 60 days of fiscal
year end.
(c) Any other financial information that the registered owners of the Notes may
reasonably request from time to time in writing.
7. No Oral Agreements: To the extent allowed by law, the parties hereto agree to be bound
by the terms of the following notice: THIS PURCHASE LETTER, THE ORDINANCE OF
THE CITY AUTHORIZING THE NOTES, THE ATTORNEY GENERAL OPINION, THE
OPINION OF BOND COUNSEL AND THE NOTES TOGETHER REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES REGARDING THIS TRANSACTION
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES
RELATING TO THIS TRANSACTION.
8. Role of Purchaser: The Purchaser and its representatives are not registered municipal
advisors and do not provide advice to municipal entities or obligated persons with respect
to municipal financial products or the issuance of municipal securities (including regarding
the structure, timing, terms and similar matters concerning municipal financial products or
municipal securities issuances) or engage in the solicitation of municipal entities or
obligated persons for the provision by non-affiliated persons of municipal advisory services
and/or investment advisory services. With respect to this Purchase Letter and any other
information, materials or communications provided by the Purchaser to the City: (a) the
Purchaser and its representatives are not recommending an action to any municipal entity
or obligated person; (b)the Purchaser and its representatives are not acting as an advisor
to any municipal entity or obligated person and do not owe a fiduciary duty pursuant to
Section 15B of the Securities Exchange Act of 1934 to any municipal entity or obligated
person with respect to this Purchase Letter, information, materials or communications; (c)
the Purchaser and its representatives are acting for their own interests; and (d) by its
acceptance of this Purchase Letter, the City represents that it has been informed that the
City should discuss this Purchase Letter and any such other information, materials or
communications with any and all internal and external advisors and experts that the City
deems appropriate before acting on this Purchase Letter or any such other information,
materials or communications.
102289584.2/1001164484 3
9. Privately Negotiated Loan. By its acceptance of this Purchase Letter, the City
acknowledges and agrees that the Purchaser is purchasing the Notes in evidence of a
privately negotiated loan and in that connection the Notes shall not be (i) assigned a
separate rating by any municipal securities rating agency, (ii) registered with The
Depository Trust Company or any other securities depository, (iii) issued pursuant to any
type of offering document or official statement or(iv)assigned a CUSIP number by CUSIP
Global Services.
10. Anti-Boycott Verification. The Purchaser hereby verifies that it and its parent company,
wholly- or majority-owned subsidiaries, and other affiliates, if any, do not boycott Israel
and, to the extent this Agreement is a contract for goods or services, will not boycott Israel
during the term of this Purchase Letter. The foregoing verification is made solely to comply
with Section 2271.002, Texas Government Code, and to the extent such Section does not
contravene applicable Federal law. As used in the foregoing verification, 'boycott Israel'
means refusing to deal with, terminating business activities with, or otherwise taking any
action that is intended to penalize, inflict economic harm on, or limit commercial relations
specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-
controlled territory, but does not include an action made for ordinary business purposes.
The Purchaser understands 'affiliate' to mean an entity that controls, is controlled by, or is
under common control with the Purchaser and exists to make a profit.
11. Iran, Sudan and Foreign Terrorist Organizations. As of the date of this Purchase Letter,
the Purchaser represents that neither it nor any of its parent company, wholly- or majority-
owned subsidiaries, and other affiliates is a company identified on a list prepared and
maintained by the Texas Comptroller of Public Accounts under Section 2252.153 or
Section 2270.0201, Texas Government Code, and posted on any of the following pages
of such officer's internet website:
https://comptroller.texas.gov/purchasing/docs/sudan-list.pdf,
https://comptroller.texas.gov/purchasing/docs/iran-list.pdf, or
https://comptroller.texas.gov/purchasing/docs/fto-list.pdf.
The foregoing representation is made solely to comply with Section 2252.152, Texas
Government Code, and to the extent such Section does not contravene applicable Federal
law and excludes the Purchaser and each of its parent company, wholly- or majority-
owned subsidiaries, and other affiliates, if any, that the United States government has
affirmatively declared to be excluded from its federal sanctions regime relating to Sudan
or Iran or any federal sanctions regime relating to a foreign terrorist organization. The
Purchaser understands "affiliate" to mean any entity that controls, is controlled by, or is
under common control with the Purchaser and exists to make a profit.
12. In case any provision herein, or application thereof, shall be invalid, illegal, or unenforceable,
the validity, legality, and enforceability of the remaining provisions or applications shall not in
any way be affected or impaired thereby.
13. No consent or waiver, express or implied, to or of any breach or default in the performance
of any obligation under this Purchase Letter, the Ordinance or the Notes shall constitute a
consent or waiver to or of any other breach or default in the performance of the same or any
other obligation.
102289584.2/1001164484 4
If this Purchase Letter meets with the Purchaser's and the City's approval, please execute
it in the place provided below.
KEY GOVERNMENT FINANCE, INC.
By:
Title:
[signatures continue on next page]
102289584.2/1001164484 [signature page of Purchaser]
ACCEPTED BY THE CITY OF SOUTHLAKE, TEXAS
Mayor
ATTEST:
City Secretary
102289584.2/1001164484 [signature page of City]