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HomeMy WebLinkAboutOrdinances (O-96-1022)-03/19/1996 ORDINANCE NO, () 51&; -10cJe/. AN ORDINANCE authorizing the issuance of "CITY OF COLLEYVILLE, TEXAS, WATERWORKS AND SEWER SYSTEM REFUNDING AND IMPROVEMENT REVENUE BONDS, SERIES 1996"; prescribing the forms, terms, and provisions of said bonds; pledging the net revenues of the City's Waterworks and Sewer System to the payment of the principal of and interest on said bonds; enacting provisions incident and related to the issuance, payment, security, sale and delivery of said bonds, including the approval and execution of a Paying Agent/Registrar, a Purchase Contract and a Special Escrow Agreement and the approval and distribution of an Official Statement pertaining thereto; and providing an effective date. WHEREAS, the City of Colleyville, Texas (the "City") has duly issued and delivered, and there is currently outstanding the following described obligations, payable from and secured by a lien on and pledge of the net revenues of the City's combined Waterworks and Sewer System (the "System"), and totalling in principal amount $1,500,000 (hereinafter collectively called the "Refunded Obligations"), to wit: (1) City of Colleyville, Texas, Waterworks and Sewer System Revenue Bonds, Series 1987, dated March 1, 1987, maturing on January 1 in each of the years 1999 through 2007, and aggregating in principal amount $ 990,000 (2) City of Colleyville, Texas, Waterworks and Sewer System Revenue Bonds, Series 1989, dated August 1, 1989, maturing on January 1 in each of the years 2001 through 2010, and aggregating in principal amount $ 510,000 AND WHEREAS, pursuant to the provisions of Article 717k, V.A.T.C,S., as amended, the City Council is authorized to issue refunding bonds and deposit the proceeds of sale directly with any place of payment for the Refunded Obligations, and such deposit, when made in accordance with said statute, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the Refunded Obligations; and WHEREAS, the City Council hereby finds and determines that refunding bonds should be issued at this time to refund the Refunded Obligations to restructure the debt service requirements of the City's revenue indebtedness to accommodate the issuance of new money bonds notwithstanding the refunding will result in a 0310895 gross dollar loss of approximately $361,749.95 while providing present value savings of approximately $31,816.81; and WHEREAS, in combination with the revenue bonds issued to refund the Refunded Obligations, the City Council further finds and determines that revenue bonds in the principal amount of $2,575,000 should be issued for making improvements and extensions to the City's combined Waterworks and Sewer System and funding a debt service reserve for the City's revenue bonds; and WHEREAS, notice of the Council's intention to issue revenue bonds in the maximum amount of $2,900,000 for making improvements and extensions to the City's combined Waterworks and Sewer System and funding a debt service reserve for the City's revenue bonds has been duly posted at the City Hall, Colleyville, Texas, and published in , a newspaper hereby found and determined to be of general circulation in the City of Colleyville, Texas, on , 1996 and , 1996, the date of posting and the date of the first publication of such notice being at least fourteen (14) days prior to the date of passage of this ordinance; and WHEREAS, no petition, signed by 10% or more of the qualified voters of the City, has been submitted or filed with the City Secretary or other official of the City petitioning the City Council to submit to a referendum vote the question as to the issuance of the above revenue bonds for such purposes; and WHEREAS, the City Council hereby finds and determines that all of such revenue bonds can and should be issued on a parity with the outstanding and unpaid revenue bonds of the City (hereinafter called and defined as "Previously Issued Bonds") payable from and secured by a first lien on and pledge of the Net Revenues of the System in that (i) the City is not now in default as to any covenant, condition or obligation prescribed in the ordinances authorizing the issuance of the Previously Issued Bonds, (ii) each of the special Funds created for the payment and security of the Previously Issued Bonds contains the amount now required to be on deposit therein, (iii) the City can secure from a Certified Public Accountant a report showing that the Net Earnings (hereinafter defined) of the System in the completed Fiscal Year next preceding the adoption of this ordinance are equal to at least one and twenty hundredths (1,20) times the average annual principal and interest requirements for all the revenue bonds to be secured by a first lien on and pledge of the Net Revenues of the System which will be Outstanding after the issuance of the revenue bonds herein authorized, (iv) the revenue bonds herein authorized shall mature on January 1 and, (v) this ordinance provides for additional deposits to be made to (a) the Interest and Sinking Fund (hereinafter defined) established for the payment of the Previously 0310895 -2- Issued Bonds in amounts adequate to pay the principal and interest requirements of the bonds herein authorized to be issued and (b) the Reserve Fund (hereinafter defined) created for the benefit of the Previously Issued Bonds so that the total amount to be accumulated therein will be equal to not less than the average annual principal and interest requirements for all the Outstanding Previously Issued Bonds and the revenue bonds herein authorized and any additional amount required to be deposited therein will be accumulated within ten (10) calendar years of the date of the revenue bonds herein authorized; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: SECTION 1: Authorization-Desiqnation-Princioal Amount - Puroose. Revenue bonds of the City shall be and are hereby authorized to be issued in the aggregate principal amount of $4,220,000 to be designated and bear the title "CITY OF COLLEYVILLE, TEXAS, WATERWORKS AND SEWER SYSTEM REFUNDING AND IMPROVEMENT REVENUE BONDS, SERIES 1996" (hereinafter referred to as the "Bonds"), for the purpose of providing funds for the discharge and final payment of certain outstanding obligations of the City (identified in the preamble hereof and referred to as the "Refunded Obligations"), paying costs of issuance, and to provide funds in the amount of $2,575,000 for making improvements and extensions to the City's combined Waterworks and Sewer System and funding a debt service reserve for the City's revenue bonds, pursuant to authority conferred by and in conformity with the Constitution and laws of the State of Texas, including Articles 717k and 1111, et. seq., V,A.T.C,S" as amended, SECTION 2: Fullv Reqistered Obliqations Authorized Denominations - Stated Maturities - Date. The Bonds shall be issued as fully registered obligations, without coupons, shall be dated March 15, 1996 (the "Issue Date") and, other than the single fully registered Initial Bond referenced in Section 8 hereof, shall be in denominations of $5,000 or any integral multiple thereof (within a Stated Maturity), shall be numbered consecutively from One (1) upward and shall become due and payable on January 1 in each of the years and in principal amounts (the "Stated Maturities") and bear interest at per . annum rates in accordance with the following schedule: Year of Stated Maturitv Principal Amount Interest Rate(s) 1997 1998 1999 2000 $130,000 100,000 175,000 190,000 3.75% 4.00% 4.00% 4.25% 0310895 -3- 2001 235,000 4.375% 2002 250,000 4.50% 2003 265,000 4,60% 2004 285,000 4,70% 2005 300,000 4,80% 2006 315,000 4.90% 2007 335,000 5.10% 2008 190,000 5.20% 2009 125,000 5.30% 2010 135,000 5.40% 2011 140,000 5.50% 2012 150,000 5.60% 2013 160,000 5,60% 2017 740,000 5.70% The Bonds shall bear interest on the unpaid principal amounts from the Issue Date at the rate(s) per annum shown in the above schedule (calculated on the basis of a 360-day year of twelve 3D-day months). Interest on the Bonds shall be payable on January 1 and July 1 in each year, commencing July 1, 1996. SECTION 3: Terms of Payment - pavinq Aqent/Reqistrar. The principal of, premium, if any, and the interest on the Bonds, due and payable by reason of maturity, redemption or otherwise, shall be payable only to the registered owners or holders of the Bonds (hereinafter called the "Holders") appearing on the registration and transfer books maintained by the Paying Agent/Registrar and the payment thereof shall be in any coin or currency of the United States of America, which at the time of payment is legal tender for the payment of public and private debts, and shall be without exchange or collection charges to the Holders. The selection and appointment of The Bank of New York, New York, New York to serve as Paying Agent/Registrar for the Bonds is hereby approved and confirmed. Books and records relating to the registration, payment, exchange and transfer of the Bonds (the "Security Register") shall at all times be kept and maintained on behalf of the City by the Paying Agent/Registrar, all as provided herein, in accordance with the terms and provisions of a "Paying Agent/Registrar Agreement", substantially in the form attached hereto as Exhibit A, and such reasonable rules and regulations as the Paying Agent/Registrar and the City may prescribe. The Mayor and City Secretary are hereby authorized to execute and deliver such Agreement in connection with the delivery of the Bonds. The City covenants to maintain and provide a Paying Agent/Registrar at all times until the Bonds are paid and discharged, and any successor Paying Agent/Registrar shall be a bank, trust company, financial institution or other entity qualified and authorized to serve in such capacity and perform the duties and services of 0310895 -4- Paying Agent/Registrar. Upon any change in the Paying Agent/Registrar for the Bonds, the City agrees to promptly cause a written notice thereof to be sent to each Holder by United States Mail, first class postage prepaid, which notice shall also give the address of the new Paying Agent/Registrar, Principal of and premium, if any, on the Bonds shall be payable at the Stated Maturities or upon their earlier redemption, only upon presentation and surrender of the Bonds to the Paying Agent/Registrar at its designated offices in Houston, Texas (the "Designated Payment/Transfer Office") Interest on the Bonds shall be paid to the Holders whose names appear in the Security Register at the close of business on the Record Date (the 15th day of the month next preceding each interest payment date) and shall be paid by the Paying Agent/Registrar (i) by check sent United States Mail, first class postage prepaid, to the address of the Holder recorded in the Security Register or (ii) by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder. If the date for the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day 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 shall have the same force and effect as if made on the original date payment was due. In the event of a non-payment of interest on one or more maturities on a scheduled payment date, and for thirty (30) days thereafter, a new record date for such interest payment for such maturity or maturities (a "Special Record Date") will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the City. Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be 15 days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States Mail, first class postage prepaid, to the address of each Holder of such maturity or maturities 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: Redemotion, (a) Ootional Redemotion. The Bonds maturing on and after January 1, 2007 shall be subject to redemption prior to maturity, at the option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar), on January 1, 2006 or on any date thereafter at 0310895 -5- the redemption price of par plus accrued interest to the date of redemption. At least forty-five (45) days prior to a date set for the redemption of Bonds (unless a shorter notification period shall be satisfactory to the paying Agent/Registrar), the City shall notify the Paying Agent/Registrar of its decision to exercise the right to redeem Bonds, the principal amount of each Stated Maturity to be redeemed, and the date set for the redemption thereof. The decision of the City to exercise the right to redeem Bonds shall be entered in the minutes of the governing body of the City. (b) Mandatorv RedemDtion, The Bonds having a Stated Maturity of January 1, 2017 (the "Term Bonds") shall also be subject to mandatory redemption prior to maturity on the dates and in the principal amounts set forth below at the redemption price of par and accrued interest to the date of redemption, to wit: Date Amount January 1, 2014 January 1, 2015 January 1, 2016 $170,000 180,000 190,000 On or prior to each November 15 in each of the years specified above that the Term Bonds are to be mandatorily redeemed, the Paying Agent/Registrar shall select by lot the Term Bonds, or the principal amount thereof, to be redeemed on the next following January 1 from moneys set aside for that purpose in the Interest and Sinking Fund. Any Term Bonds or principal amount thereof not selected for prior redemption shall be paid at the Stated Maturity thereof. The principal amount of the Term Bonds required to be redeemed pursuant to the operation of such mandatory redemption provisions shall be reduced, at the option of the City, by the principal amount of any Term Bonds which, at least 50 days prior to the mandatory redemption date, (1) shall have been acquired by the City at a price not exceeding the principal amount of such Term Bonds plus accrued interest to the date of purchase thereof, and delivered to the Paying Agent/Registrar for cancellation, (2) shall have been purchased and cancelled by said Paying Agent/Registrar at the request of the City with moneys in the Interest and Sinking Fund at a price not exceeding the principal amount of such Term Bonds plus accrued interest to the date of purchase thereof, or (3) shall have been redeemed pursuant to the optional redemption provisions set forth above in paragraph (a) hereof and not theretofore credited against a mandatory redemption requirement. 0310895 -6- (c) Selection of Bonds for RedemDtion, If less than all Outstanding Bonds of the same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar shall treat such Bonds as representing the number of Bonds Outstanding which is obtained by dividing the principal amount of such Bond by $5,000 and shall select the Bonds, or principal amount thereof, to be redeemed within such Stated Maturity by lot. (d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date for the Bonds, a notice of redemption shall be sent by United States Mail, first class postage prepaid, in the name of the City and at the City's expense, to each Holder of a Bond to be redeemed in whole or in part at the address of the Holder appearing on the Security Register at the close of business on the business day next preceding the date of mailing such notice, and any notice of redemption so mailed shall be conclusively presumed to have been duly given irrespective of whether received by the Holder. All notices of redemption shall (i) specify the date of redemption for the Bonds, (ii) identify the Bonds to be redeemed and, in the case of a portion of the principal amount to be redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price, (iv) state that the Bonds, or the portion of the principal amount thereof to be redeemed, shall become due and payable on the redemption date specified, and the interest thereon, or on the portion of the principal amount thereof to be redeemed, shall cease to accrue from and after the redemption date, and (v) specify that payment of the redemption price for the Bonds, or the principal amount thereof to be redeemed, shall be made at the Designated Payment/Transfer Office of the Paying Agent/Registrar only upon presentation and surrender thereof by the Holder. If a Bond is subject by its terms to prior redemption and has been called for redemption and notice of redemption thereof has been duly given or waived as herein provided, such Bond (or the principal amount thereof to be redeemed) shall become due and payable, and interest thereon shall cease to accrue from and after the redemption date therefor, provided moneys sufficient for the payment of such Bonds (or of the principal amount thereof to be redeemed) at the then applicable redemption price are held for the purpose of such payment by the Paying Agent/Registrar. SECTION 5: Reqistration - Transfer - Exchanqe of Bonds - Predecessor Bonds. The Paying Agent/Registrar shall obtain, record, and maintain in the Security Register the name and address of each registered owner of the Bonds issued under and pursuant to the provisions of this Ordinance. Any Bond may, in accordance with its terms and the terms hereof, be transferred or exchanged for Bonds of other authorized denominations upon the Security Register by the Holder, in person or by his duly authorized agent, upon 0310895 -7- surrender of such Bond to the Designated Payment/Transfer Office of 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 for transfer of any Bond (other than the Initial Bonds authorized in Section 8 hereof) at the Designated Payment/Transfer Office of the Paying Agent/Registrar, one or more new Bonds shall be registered and issued to the assignee or transferee of the previous Holder; such Bonds to be in authorized denominations, of like Stated Maturity and of a like aggregate principal amount as the Bond or Bonds surrendered for transfer, At the option of the Holder, Bonds (other than the Initial Bonds authorized in Section 8 hereof) may be exchanged for other Bonds of authorized denominations and having the same Stated Maturity, bearing the same rate of interest and of like aggregate principal amount as the Bonds surrendered for exchange, upon surrender of the Bonds to be exchanged at the Designated Payment/Transfer Office of the Paying Agent/ Registrar. Whenever any Bonds are surrendered for exchange, the paying Agent/Registrar shall register and deliver new Bonds, executed on behalf of, and furnished by, the City, to the Holder requesting the exchange, All Bonds issued upon any transfer or exchange of Bonds shall be delivered at the Designated Payment/Transfer Office of the Paying Agent/Registrar, or sent by United States Mail, first class postage prepaid, to the Holder and, upon the delivery thereof, the same shall be valid obligations of the City, evidencing the same obligation to pay, and entitled to the same benefits under this Ordinance, as the Bonds surrendered in such transfer or exchange. All transfers or exchanges of Bonds pursuant to this Section shall be made without expense or service charge to the Holder, except as otherwise herein provided, and except that the Paying Agent/Registrar shall require payment by the Holder requesting such transfer or exchange of any tax or other governmental charges required to be paid with respect to such transfer or exchange. Bonds cancelled by reason of an exchange or transfer pursuant to the provisions hereof are hereby defined to be "Predecessor Bonds," evidencing all or a portion, as the case may be, of the same obligation to pay evidenced by the Bond or Bonds registered and delivered in the exchange or transfer therefor. Additionally, the term "Predecessor Bonds" shall include any mutilated, lost, destroyed, or stolen Bond for which a replacement Bond has been issued, registered and delivered in lieu thereof pursuant to Section 29 hereof and such new replacement Bond shall be deemed to 0310895 -8, evidence the same obligation as the mutilated, lost, destroyed, or stolen Bond. Neither the City nor the Paying Agent/Registrar shall be required to transfer or exchange any Bond called for redemption, in whole or in part, within 45 days of the date fixed for redemption of such Bond; provided, however, such limitation on transferability shall not be applicable to an exchange by the Holder of the unredeemed balance of a Bond called for redemption in part, SECTION 6: Book-Entrv Onlv Transfers and Transactions. Notwithstanding the provisions contained in Sections 3, 4 and 5 hereof relating to the payment, and transfer/exchange of the Bonds, the City hereby approves and authorizes the use of "BoOk-Entry Only" securities clearance, settlement and transfer system provided by The Depository Trust Company (DTC) , a limited purpose trust company organized under the laws of the State of New York, in accordance with the requirements and procedures identified in the Letter of Representation, by and between the City, the Paying Agent/Registrar and DTC (the "Depository Agreement") relating to the Bonds. Pursuant to the Depository Agreement and the rules of DTC, the Bonds shall be deposited with DTC who shall hold said Bonds for its participants (the "DTC Participants"). While the Bonds are held by DTC under the Depository Agreement, the Holder of the Bonds on the Security Register for all purposes, including payment and notices, shall be Cede & Co., as nominee of DTC, notwithstanding the ownership of each actual purchaser or owner of each Bond (the "Beneficial Owners") being recorded in the records of DTC and DTC Participants. In the event DTC determines to discontinue serving as securities depository for the Bonds or otherwise ceases to provide book-entry clearance and settlement of securities transactions in general or the City determines that DTC is incapable of properly discharging its duties as securities depository for the Bonds, the City covenants and agrees with the Holders of the Bonds to cause Bonds to be printed in definitive form and provide for the Bond certificates to be issued and delivered to DTC Participants and Beneficial Owners, as the case may be. Thereafter, the Bonds in definitive form shall be assigned, transferred and exchanged on the Security Register maintained by the Paying Agent/Registrar and payment of such Bonds shall be made in accordance with the provisions of Sections 3, 4 and 5 hereof, SECTION 7: Execution - Reqistration. The Bonds shall be executed on behalf of the City by the Mayor under its seal reproduced or impressed thereon and countersigned by the City Secretary. The signature of said officers on the Bonds may be 0310895 -9- manual or facsimile. Bonds bearing the manual or facsimile signatures of individuals who are or were the proper officers of the City on the Issue Date shall be deemed to be duly executed on behalf of the City, notwithstanding that such individuals or either of them shall cease to hold such offices at the time of delivery of the Bonds to the initial purchaser(s) and with respect to Bonds delivered in subsequent exchanges and transfers, all as authorized and provided in the Bond Procedures Act of 1981, as amended, No Bond shall be entitled to any right or benefit under this Ordinance, or be valid or obligatory for any purpose, unless there appears on such Bond either a certificate of registration substantially in the form provided in Section 9C, manually executed by the Comptroller of Public Accounts of the State of Texas or his duly authorized agent, or a certificate of registration substantially in the form provided in Section 9D, manually executed by an authorized officer, employee or representative of the Paying Agent/Registrar, and either such certificate upon any Bond duly signed shall be conclusive evidence, and the only evidence, that such Bond has been duly certified, registered and delivered, SECTION 8: Initial Bond(s). The Bonds herein authorized shall be initially issued either (i) as a single fully registered bond in the total principal amount noted in Section 1 with principal installments to become due and payable as provided in Section 2 hereof and numbered T-1, or (ii) as eighteen (18) fully registered bonds, being one bond for each year of maturity in the applicable principal amount and denomination and to be numbered consecutively from T-1 and upward (hereinafter called the "Initial Bond(s) ") and, in either case, the Initial Bond(s) shall be registered in the name of the initial purchaser(s) or the designee thereof. The Initial Bond(s) shall be the Bonds submitted to the Office of the Attorney General of the State of Texas for approval, certified and registered by the Office of the Comptroller of Public Accounts of the State of Texas and delivered to the initial purchaser(s). Any time after the delivery of the Initial Bond(s) , the Paying Agent/Registrar, pursuant to written instructions from the initial purchaser(s), or the designee thereof, shall cancel the Initial Bond(s) delivered hereunder and exchange therefor definitive Bonds of authorized denominations, Stated Maturities, principal amounts and bearing applicable interest rates for transfer and delivery to the Holders named at the addresses identified therefor; all pursuant to and in accordance with such written instructions from the initial purchaser (s), or the designee thereof, and such other information and documentation as the Paying Agent/Registrar may reasonably require. SECTION Registration the State of 9: Forms. A. Forms Generallv. The Bonds, the Certificate of the Comptroller of Public Accounts of Texas, the Certificate of Registration, and the form 0310895 -10- of Assigrunent to be printed on each of the Bonds, shall be substantially in the forms set forth in this Section with such appropriate insertions, omissions, substitutions, and other variations as are permitted or required by this Ordinance and may have such letters, numbers, or other marks of identification (including identifying numbers and letters of the Committee on Uniform Securities Identification Procedures of the American Bankers Association) and such legends and endorsements (including insurance legends on insured Bonds and any reproduction of an opinion of counsel) thereon as may, consistently herewith, be established by the City or determined by the officers executing such Bonds as evidenced by their execution thereof, Any portion of the text of any Bonds may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Bond. The definitive Bonds and the Initial Bond(s) shall be printed, lithographed, or engraved or typewritten, photocopied or otherwise reproduced in any other similar manner, all as determined by the officers executing such Bonds as evidenced by their execution thereof. B, Form of Definitive Bond. REGISTERED NO. REGISTERED $ UNITED STATES OF AMERICA STATE OF TEXAS CITY OF COLLEYVILLE, TEXAS, WATERWORKS AND SEWER SYSTEM REFUNDING AND IMPROVEMENT REVENUE BOND SERIES 1996 Issue Date: March 15, 1996 Interest Rate: Stated Maturity: CUSIP NO: Registered Owner: Principal Amount: DOLLARS The City of Colleyville (hereinafter referred to as the "City"), a body corporate and municipal corporation in the County of Tarrant, State of Texas, for value received, hereby promises to pay to the order of 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 Issue Date at the per annum rate 0310895 -11- of interest specified above computed on the basis of a 360-day year of twelve 30-day months; such interest being payable on January 1 and July 1 of each year, commencing July 1, 1996. Principal of this Bond is payable at the Stated Maturity or redemption to the registered owner hereof, upon presentation and surrender, at the Designated Payment/Transfer Office of the Paying Agent/Registrar executing the registration certificate appearing hereon, or its successor; provided, however, while this Bond is registered to Cede & Co., the payment of principal upon a partial redemption of the principal amount hereof may be accomplished without presentation and surrender of this Bond. Interest is payable to the registered owner of this Bond (or one or more Predecessor Bonds, as defined in the Ordinance hereinafter referenced) whose name appears on the "Security Register" maintained by the Paying Agent/ Registrar at the close of business on the "Record Date", which is the 15th day of the month next preceding each interest payment date and interest shall be paid by the Paying Agent/ Registrar by check sent United States Mail, first class postage prepaid, to the address of the registered owner recorded in the Security Register or by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the registered owner. All payments of principal of, premium, if any, and interest on this Bond shall be without exchange or collection charges to the owner hereof and in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, This Bond is one of the series specified in its title issued in the aggregate principal amount of $4,220,000 (herein referred to as the "Bonds") for the purpose of refunding certain outstanding obligations, paying costs of issuance and to provide funds in the amount of $2,575,000 for making improvements and extensions to the City's combined Waterworks and Sewer System and funding a debt service reserve for the City's revenue bonds, under and in strict conformity with the Constitution and laws of the State of Texas, including Articles 717k and 1111 et, seq., V.A.T.C.S., and pursuant to an Ordinance adopted by the City Council of the City (herein referred to as the "Ordinance"), The Bonds maturing on January 1, 2017 (the "Term Bonds") are subject to mandatory redemption prior to maturity with funds on deposit in the Interest and Sinking Fund established and maintained for the payment thereof in the Ordinance, and shall be redeemed in part prior to maturity at the price of par and accrued interest thereon to the date of redemption, and without premium, on January 1, 2014 and annually thereafter on each January 1 through January 1, 2016 in the amounts set forth in the Ordinance. The particular Bonds, or principal amount thereof, to be redeemed on each such date shall be chosen by lot by the Paying Agent/Registrar; provided, however, that the principal amount of 0310895 -12- the Term Bonds required to be redeemed pursuant to the operation of such mandatory redemption provisions shall be reduced, at the option of the City, by the principal amount of any Term Bonds which, at least 50 days prior to a mandatory redemption date, (1) shall have been acquired by the City at a price not exceeding the principal amount of such Term Bonds plus accrued interest to the date of purchase thereof, and deli vered to the Paying Agent/Registrar for cancellation, (2) shall have been purchased and cancelled by said Paying Agent/Registrar at the request of the City with moneys in the Interest and Sinking Fund at a price not exceeding the principal amount of such Term Bonds plus accrued interest to the date of purchase thereof, or (3) shall have been redeemed pursuant to the optional redemption provisions appearing below and not theretofore credited against a mandatory redemption requirement. The Bonds maturing on and after January 1, 2007, may be redeemed prior to their Stated Maturities, at the option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity by lot by the Paying Agent/ Registrar), on January 1, 2006, or on any date thereafter, at the redemption price of par, together with accrued interest to the date of redemption. At least thirty days prior to the date fixed for any redemption of Bonds, 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 Bond 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 this Bond (or any portion of the principal sum hereof) shall have been duly called for redemption and notice of such redemption duly given, then upon such redemption date this Bond (or the portion of the principal sum hereof to be redeemed) shall become due and payable, and, 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 hereof redeemed. In the event of a partial redemption of the principal amount of this Bond and the registered owner hereof is someone other than Cede & Co., payment of the redemption price of such principal amount shall be made to the registered owner only upon presentation and surrender of this Bond to the Designated Payment/Transfer Office of the Paying Agent/Registrar and, there shall be issued to the registered owner hereof, without charge, a new Bond or Bonds of like maturity and interest rate in any authorized denominations provided in the Ordinance for the then unredeemed balance of the 0310895 -13- principal sum hereof. If this Bond is called for redemption, in whole or in part, the City and the Paying Agent/Registrar shall not be required to transfer this Bond to an assignee of the Holder within 45 days of the redemption date therefor; provided, however, such limitation on transferability shall not be applicable to an exchange by the Holder of the unredeemed balance hereof in the event of its redemption in part. The Bonds are special obligations of the City, and, together with the outstanding Previously Issued Bonds (identified and defined in the Ordinance), are payable solely from and equally and ratably secured by a first lien on and pledge of the Net Revenues (as defined in the Ordinance) of the City's combined Waterworks and Sanitary Sewer System (the "System"). The Bonds do not constitute a legal or equitable pledge, charge, lien or encumbrance upon any property of the City or the System, except with respect to the Net Revenues. The holder hereof shall never have the right to demand payment of this obligation out of any funds raised or to be raised by taxation, Subj ect to satisfying the terms and conditions prescribed therefor, the City has reserved the right to issue additional revenue obligations payable from and equally and ratably secured by a parity lien on and pledge of the Net Revenues of the System, in the same manner and to the same extent as the Bonds. 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 Holder by the acceptance hereof hereby assents, for definitions of terms; the description of and the nature and extent of the security for the Bonds; the properties constituting the System; the Net Revenues pledged to the payment of the principal of and interest on the Bonds; the nature and extent and manner of enforcement of the lien and pledge securing the payment of the Bonds; the terms and conditions for the issuance of additional revenue obligations; the terms and conditions relating to the transfer or exchange of this Bond; the conditions upon which the Ordinance may be amended or supplemented with or without the consent of the Holders; the rights, duties, and obligations of the City and the Paying Agent/Registrar; the terms and provisions upon which the liens, pledges, charges and covenants made therein may be discharged at or prior to the maturity or redemption of this Bond, and this Bond deemed to be no longer Outstanding thereunder; and for the other terms and provisions contained therein. Capitalized terms used herein have the same meanings assigned in the Ordinance. This Bond, subject to certain limitations contained in the Ordinance, may be transferred on the Security Register only upon its presentation and surrender at the Designated Payment/Transfer 0310895 -14- Office of the Paying Agent/Registrar, with the Assignment hereon duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Paying Agent/Registrar duly executed by, the registered owner hereof, or his duly authorized agent. When a transfer on the Security Register occurs, one or more new fully registered Bonds of the same Stated Maturity, of authorized denominations, bearing the same rate of interest, and of the same aggregate principal amount will be issued by the Paying Agent/Registrar to the designated transferee or transferees. The City and the Paying Agent/Registrar, and any agent of either, may treat the registered owner hereof whose name appears on the Security Register (i) on the Record Date as the owner entitled to payment of interest hereon, (ii) on the date of surrender of this Bond as the owner entitled to payment of principal hereof at its Stated Maturity or its redemption, in whole or in part, and (iii) on any other date as the owner for all other purposes, and neither the City nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. In the event of non-payment of interest on a scheduled payment date and for thirty (30) days thereafter, a new record date for such interest payment (a "Special Record Date") will be established by the Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the City, Notice of the Special Record Date and of the scheduled payment date of the past due interest (which shall be 15 days after the Special Record Date) shall be sent at least five (5) business days prior to the Special Record Date by United States Mail, first class postage prepaid, to the address of each Holder appearing on the Security Register at the close of business on the last business day next preceding the date of mailing of such notice. It is hereby certified, recited, represented and covenanted that the City is a duly organized and legally existing municipal corporation under and by virtue of the Constitution and laws of the State of Texas; that the issuance of the Bonds is duly authorized by law; that all acts, conditions and things required to exist and be done precedent to and in the issuance of the Bonds to render the same lawful and valid obligations of the City have been properly done, have happened and have been performed in regular and due time, form and manner as required by the Constitution and laws of the State of Texas, and the Ordinance; that the Bonds do not exceed any constitutional or statutory limitation; and that due provision has been made for the payment of the principal of and interest on the Bonds by a pledge of the Net Revenues of the System as aforestated. In case any provision in this Bond or any application thereof shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions and applications shall not in any way be affected or impaired thereby. The terms and provisions of this Bond and the Ordinance shall be 0310895 -15- construed in accordance with and shall be governed by the laws of the State of Texas. IN WITNESS WHEREOF, the City Council of the City has caused this Bond to be duly executed under the official seal of the City as of the Issue Date. CITY OF COLLEYVILLE, TEXAS COUNTERSIGNED: Mayor City Secretary (SEAL) C. *Form of Reqistration Certificate of Comptroller of Public Accounts to appear on Initial Bond(s) onlv. 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 Bond has been examined, certified as to validity and approved by the Attorney General of the State of Texas, and duly registered by the Comptroller of Public Accounts of the State of Texas. WITNESS my signature and seal of office this Comptroller of Public Accounts of the State of Texas (SEAL) *NOTE TO PRINTER: Do Not Print on Definitive Bonds 0310895 -16- D. Form of Certificate of pavinq Aqent/Reqistrar to aooear on Definitive Bonds onlv, REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR This Bond has been duly issued and registered under the provisions of the within-mentioned Ordinance; the bond or bonds of the above entitled and designated series originally delivered having been approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts, as shown by the records of the Paying Agent/Registrar, The Houston, Bond. designated offices of the Paying Agent/Registrar in Texas, is the Designated Payment/Transfer Office for this THE BANK OF NEW YORK, New York, New York, as Paying Agent/Registrar Registration Date: By Authorized Signature E. Form of Assiqnment. ASSIGNMENT FOR VALUE RECEIVED the undersigned assigns, and transfers unto (Print or typewrite and zip code of transferee:) hereby sells, name, address, or other identifying number: within Bond and all rights thereunder, constitutes and appoints (SocialSecurity ) the and hereby irrevocably attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises. DATED: Signature guaranteed: NOTICE: The signature on this assignment must correspond with the name of the registered owner as it appears on the face of the within Bond in every particular. F, The Initial Bondes) shall be in the form set forth in oaraqraoh B of this Section. exce~t that the form of a sinqle fullv reqistered Initial Bond shall be modified as follows:: 0310895 -17- (i) irmnediately under the name of the bond the headings "Interest Rate " and "Stated Maturity " shall both be omitted;" (ii) Paragraph one shall read as follows: The City of Colleyville (hereinafter referred to as the "City"), a body corporate and municipal corporation in the County of Tarrant, State of Texas, for value received, hereby promises to pay to the order of the Registered Owner named above, or the registered assigns thereof, solely from the revenues hereinafter identified, on January 1 in each of the years and in principal amounts and bearing interest at per annum rates in accordance with the following schedule: YEAR PRINCIPAL INSTALLMENTS INTEREST RATE (Information to be inserted from schedule in Section 2 hereof). (or so much thereof as shall not have been prepaid prior to maturity) and to pay interest on the unpaid principal amounts hereof from the Issue Date at the per annum rates of interest specified above computed on the basis of a 360-day year of twelve 30-day months; such interest being payable on January 1 and July 1 of each year, cormnencing July 1, 1996. Principal installments of this Bond are payable at its Stated Maturity or on a prepayment date to the registered owner hereof by The Bank of New York, New York, New York (the "Paying Agent/Registrar"), upon presentation and surrender, at its designated offices in Houston, Texas (the "Designated Payment/Transfer Office"). Interest is payable to the registered owner of this Bond whose name appears on the "Security Register" maintained by the Paying Agent/ Registrar at the close of business on the "Record Date", which is the 15th 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 registered owner recorded in the Security Register on the Record Date or by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the registered owner. All payments of principal of, premium, if any, and interest on this Bond shall be without exchange or collection charges to the owner hereof and in any coin or currency of the United States of America which at the time of payment is legal tender for the payment of public and private debts, SECTION 10: Ordinance and in issuance of the Definitions. For all purposes of this particular for clarity with respect to the Bonds herein authorized and the pledge and 0310895 -18- appropriation of revenues to the payment of the Bonds, the following definitions are provided: "Additional Parity Obligations" - Bonds, notes, warrants, certificates of obligation or other evidences of indebtedness which the City reserves the right to issue or enter into, as the case may be, in the future under the tems and conditions provided in Section 18 of this Ordinance and which are equally and ratably secured by a first lien on and pledge of the Net Revenues of the System. "Bonds" - The "City of Colleyville, Texas Waterworks and Sewer System Refunding and Improvement Revenue Bonds, Series 1996", dated March 15, 1996, authorized by this Ordinance. "City" - The City of Colleyville, located in the County of Tarrant, Texas. "Fiscal Year" - The twelve month operational period of the System ending each year on September 30th; provided, however, at such time as the Series 1975 and Series 1975-A Previously Issued Bonds have been fully paid as to both principal and interest, the City may change the Fiscal Year to another period of not less than twelve calendar months by the passage of an ordinance, but in no event may the Fiscal Year be changed more than one time in any three calendar year period. "Government Obligations" - Direct 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, and United States Treasury obligations such as its State and Local Government Series in book-entry fom. "Gross Revenues" - All income, receipts and revenues of every nature derived or received from the operation and ownership (excluding refundable meter deposits, restricted gifts and grants in aid of construction) of the System. "Holder" or "Holders" - The registered owner, whose name appears in the Security Register, for any Bond, "Maintenance and Operating Expenses" - All current expenses of operating and maintaining the System as authorized by the provisions of Texas Revised Civil 0310895 -19- Statutes Annotated Article 1113, as amended, including but not limited to, all salaries, labor, materials, repairs and extensions necessary to render efficient service; provided, however, that only such repairs and extensions, as in the judgment of the City Council, reasonably and fairly exercised, are necessary to maintain the operations and render adequate service to the City and the inhabitants thereof, or such as might be necessary to meet some physical accident or condition which would otherwise impair obligations payable from Net Revenues shall be deducted in determining Net Revenues. Depreciation charges shall not be considered Maintenance and Operating Expenses. Maintenance and Operating Expenses shall include payments under contracts for the purchase of water supply, treatment of sewage or other materials, goods or services for the System to the extent authorized by law and the provisions of such contract. "Net Revenues" - Gross Revenues of the System, with respect to any period, after deducting the System's Maintenance and Operating Expenses during such period, "Obligations Similarly Secured" - Collectively, the Bonds, the Previously Issued Bonds and any Additional Parity Obligations, which shall be parity obligations being equally and ratably secured by and payable from a lien on and pledge of the Net Revenues of the System. . "Outstanding" - When used in this Ordinance with respect' to any Bonds means, as of the date of determination, all Bonds theretofore issued and delivered under this Ordinance, except: 1. those Bonds theretofore cancelled by the Paying Agent/Registrar or delivered to the Paying Agent/Registrar for cancellation; 2. those Bonds for which payment has been duly provided by the City in accordance with the provisions of Section 30 of this Ordinance; and 3. those Bonds that have been mutilated, destroyed, lost, or stolen and replacement Bonds have been registered and delivered in lieu thereof as provided in Section 29 of this Ordinance. 0310895 -20- "Previously Issued Bonds" - shall mean the Outstanding and unpaid revenue bonds of the City payable from and equally and ratably secured by a first lien on and pledge of the Net Revenues of the System, identified as follows: (1) City of Colleyville, Texas Waterworks and Sewer System Revenue Bonds, Series 1975, dated January 1, 1975, and originally issued in the principal amount of $2,000,000; (2) City of Colleyville, Texas Waterworks and Sewer System Revenue Bonds, Series 1975-A, dated July 1, 1975, and originally issued in the principal amount of $250,000; (3) City of Colleyville, Texas Waterworks and Sewer System Revenue Bonds, Series 1981, dated April 1, 1981, and originally issued in the principal amount of $1,400,000; (4) City of Colleyville, Texas Waterworks and Sewer System Revenue Bonds, Series 1987, dated March 1, 1987 and originally issued in the principal amount of $1,500,000; (5) City of Colleyville, Texas, Waterworks and Sewer System Revenue Bonds, Series 1989, dated August 1, 1989, and originally issued in the principal amount of $750,000; and (6) City of Colleyville, Texas, Waterworks and Sewer System Revenue Bonds, Series 1994, dated June 1, 1994, and originally issued in the principal amount of $2,860,000. "Required Reserve Amount" - The amount required to be deposited and maintained in the Reserve Fund under the provisions of Section 15 of this Ordinance. "System" - The waterworks and sewer system of the City, together with any additions and extensions thereto and improvements and replacements thereof hereafter constructed or acquired. 0310895 -21- SECTION 11: Pledqe, The City hereby covenants and agrees that all of the Net Revenues of the System, with the exception of those in excess of the amounts required to establish and maintain the special Funds created for the payment and security of the Obligations Similarly Secured, are hereby irrevocably pledged, equally and ratably, to the payment of the Previously Issued Bonds, the Bonds, and Additional Parity Obligations, if issued, and the interest thereon, as hereinafter provided. It is hereby ordained that the Obligations Similarly Secured, and the interest thereon, shall constitute a first lien on the Net Revenues of the System and be valid and binding without any physical delivery thereof or further act by the City. SECTION 12: Rates and Charqes, For the benefit of the Holders of the Bonds and in addition to all provisions and covenants in the laws of the State of Texas and in this Ordinance, the City hereby expressly stipulates and agrees, while any of the Bonds are Outstanding, to establish and maintain rates and charges for facilities and services afforded by the System that are reasonably expected, on the basis of available information and experience and with due allowance for contingencies, to produce Gross Revenues in each Fiscal Year sufficient: 1. To pay Maintenance and Operating Expenses, depreciation charges and replacement and betterment costs, and 2. To produce Net Revenues sufficient to pay the principal of and interest on the Obligations Similarly Secured and the amounts required to be deposited in any reserve or contingency fund created for the payment and security of the Obligations Similarly Secured, and any other obligations or evidences of indebtedness issued or incurred that are payable only from and secured solely by a lien on and pledge of the Net Revenues of the System. 3. Any other legally incurred indebtedness payable from the revenues of the System and/or secured by a lien on the System. SECTION 13: Waterworks and Sewer Svstem Fund, The City hereby covenants, agrees and reaffirms its covenants to the Holders of the Previously Issued Bonds that the Gross Revenues of the System shall be deposited, as collected and received, into a separate account (previously created, established and to be maintained with a depository bank of the City) known as the Waterworks and Sewer System Fund (herein called the "System Fund") and that the Gross Revenues of the System shall be kept separate and apart from all other funds of the City. All Gross Revenues 0310895 -22- deposited into the System Fund shall be pledged and appropriated to the extent required for the following uses and in the order of priority shown: FIRST: To the payment of all necessary and reasonable Maintenance and Operating Expenses as defined herein or required by statute to be a first charge on and claim against the Gross Revenues of the System. SECOND: To the payment of the amounts required to be deposited into the Interest and Sinking Fund (hereinafter defined) created and established for the payment of the principal of and interest on each of the Obligations Similarly Secured as the same become due and payable. THIRD: To the payment of the amounts required to be deposited into the Reserve Fund (hereinafter defined) to establish and maintain the Required Reserve Amount in accordance with the provisions of this Ordinance or any other ordinance relating to the issuance of Obligations Similarly Secured. Any Net Revenues remaining in the System Fund after satisfying the foregoing payments, or making adequate and sufficient provision for the payment thereof, may be appropriated and used for any other City purpose now or hereafter permitted by law. SECTION 14: Interest and Sinkinq Fund. For purposes of providing funds to pay the principal of and interest on the Obligations Similarly Secured as the same become due and payable, the City agrees to maintain on the books and records of the City, a separate and special account or fund known as the "Waterworks and Sewer System Interest and Sinking Fund" (the "Interest and Sinking Fund") and moneys deposited to the credit of such account shall be kept in a special fund maintained at the depository of the City. The City covenants that there shall be deposited to the credit of the Interest and Sinking Fund prior to each principal and interest payment date from the available Net Revenues an amount equal to one hundred per centum (100%) of the amount required to fully pay the interest on and the principal of the Bonds then falling due and payable, such deposits to pay maturing principal and accrued interest on the Bonds to be made in substantially equal monthly installments on or before the fifteenth day of each month, beginning on or before the fifteenth day of the month next following the delivery of the Bonds to the initial purchaser(s) , 0310895 -23- The required monthly deposits to the Interest and Sinking Fund for the payment of principal of and interest on the Bonds shall continue to be made as hereinabove provided until such time as (i) the total amount on deposit in the Interest and Sinking Fund and Reserve Fund is equal to the amount required to fully pay and discharge all Outstanding Obligations Similarly Secured (principal and interest) or, (ii) the Bonds are no longer Outstanding. Accrued interest and premium, if any, received from the initial purchaser(s) of the Bonds, shall be taken into consideration and reduce the amount of the monthly deposits hereinabove required to be deposited into the Interest and Sinking Fund from the Net Revenues of the System. Additionally, any proceeds of the Bonds not required to complete the improvements and extensions to be made to the System shall be deposited into the Interest and Sinking Fund and may be taken into consideration and reduce the amount of monthly deposits required to be deposited into the Interest and Sinking Fund from the Net Revenues of the System. SECTION 15: Reserve Fund. For purposes of accumulating and maintaining funds as a reserve for the payment of the Obligations Similarly Secured, the City agrees, covenants and reaffirms its covenants to the Holders of the Previously Issued Bonds to maintain a special fund or account known as the "Waterworks and Sewer System Reserve Fund" (the "Reserve Fund"), which Fund shall be kept and maintained at an official depository of City funds, All funds deposited to the credit of the Reserve Fund (excluding earnings and income derived or received from deposits or investments which may be transferred to the System Fund referenced in Section 13 of this Ordinance during such periods as there is on deposit in the Reserve Fund the Required Reserve Amount) shall be used solely for the payment of the principal of and interest on the Obligations Similarly Secured, when and to the extent other funds available for such purposes are insufficient. In accordance with the provisions of the ordinances authorizing the issuance of the Previously Issued Bonds, the amount currently on deposit in the Reserve Fund is $ (the "Current Reserve"). By reason of the issuance of the Bonds, the total amount required to be accumulated and maintained in the Reserve Fund shall be and is hereby increased to the sum of $ (the "Required Reserve Amount"), which amount equals at least the average annual principal and interest requirements for the Bonds and the Previously Issued Bonds now Outstanding, Beginning on or before the 15th day of the month next following the month the Bonds are delivered to the initial purchasers and on or before the 15th day of each following month until the Required Reserve Amount has been fully accumulated, 0310895 -24- there shall be deposited into the Reserve Fund from the Net Revenues of the System an amount equal to at least 1/60th of the difference between the Required Reserve Amount and the Current Reserve, When and so long as the cash and investments in the Reserve Fund total not less than the Required Reserve Amount, no deposits need be made to the credit of the Reserve Fund; but, if and when the Reserve Fund at any time contains less than the Required Reserve Amount (other than as the result of the issuance of Additional Parity Obligations as provided in the preceding paragraph), the City covenants and agrees to cure the deficiency in the Required Reserve Amount by resuming monthly deposits to said Fund in an amount equal to 1/60th of the Required Reserve Amount from the Net Revenues of the System on or before the fifteenth day of each month until the Required Reserve Amount has been fully restored. The City further covenants and agrees that, subject only to the payments to be made to the Interest and Sinking Fund, the Net Revenues shall be applied and appropriated and used to establish and maintain the Required Reserve Amount and to cure any deficiency in such amounts as required by the terms of this Ordinance and any other ordinance pertaining to the issuance of Additional Parity Obligations. Money in the Reserve Fund, at the option of the City, may be invested or reinvested from time to time in direct obligations or obligations the principal and interest of which are guaranteed by the United States of America or invested in direct obligations of or participation certificates guaranteed by the Federal Intermediate Credit Banks, Federal Land Banks, Federal National Mortgage Association, Federal Home Loan Banks, Banks for Cooperatives, and in certificates of deposit of any bank or trust company the deposits of which are fully secured by a pledge of securities of any of the kinds hereinabove specified, such obligations or securities to mature in not more than ten (10) years from the date of such investment. Any obligations in which money is so invested shall be kept in escrow in the City's depository bank and shall be promptly sold and the proceeds of sale applied to the making of payments required to be made from the Reserve Fund whenever such payments are necessary to be made. The deposits to the Reserve Fund shall be subordinate to those required to be made into the Interest and Sinking Fund. SECTION 16: Deficiencies - Excess Net Revenues. A. If on any occasion there shall not be sufficient Net Revenues of the System to make the required deposits into the Interest and Sinking Fund and the Reserve Fund, then such deficiency shall be cured as soon as possible from the next available unallocated Net Revenues of the System, or from any 0310895 -25- other sources available for such purpose, and such payments shall be in addition to the amounts required to be paid into said Funds during such month or months. B. Subject to making the required deposits to the Interest and Sinking Fund and the Reserve Fund when and as required by this Ordinance, or any ordinance authorizing the issuance of Additional Parity Obligations, the excess Net Revenues of the System may be used by the City for any lawful purpose. SECTION 17: Payment of Bonds, While any of the Bonds are Outstanding, the Director of Finance shall cause to be transferred to the Paying Agent/Registrar, from funds on deposit in the Interest and Sinking Fund, and, if necessary, in the Reserve Fund, amounts sufficient to fully pay and discharge promptly each installment of interest on and principal of the Bonds as such installment accrues or matures; such transfer of funds must be made in such manner as will cause immediately available funds to be deposited with the Paying Agent/Registrar for the Bonds at the close of the business day next preceding the date a debt service payment is due on the Bonds. SECTION 18: Issuance of Additional Parity Obliqations. Subject to the provisions hereinafter appearing as to the conditions precedent which must be satisfied, the City reserves the right to issue, from time to time as needed, Additional Parity Obligations for any lawful purpose. The Additional Parity Obligations, when issued, shall be payable from and secured by a first lien on and pledge of the Net Revenues of the System in the same manner and to the same extent as the Bonds and the previously Issued Bonds. Such Additional Parity Obligations may be issued in such form and manner as now or hereafter authorized by the laws of the State of Texas for the issuance of evidences of indebtedness or other instruments, and should new methods or financing techniques be developed that differ from those now available and in normal use, the City reserves the right to employ the same in its financing arrangements provided only that the following conditions precedent for the authorization and issuance of any Additional parity Obligations are satisfied, to wit: A. The City is not then in default as to any covenant, condition or obligation prescribed by the ordinances authorizing the Obligations Similarly Secured, B. Each of the Funds created and established for the payment and security of Obligations Similarly Secured contains the amount of money then required to be on deposit therein. C. The Net Earnings (hereinafter defined) of the System for (i) the completed Fiscal Year next preceding the adoption of an 0310895 -26- ordinance authorizing the issuance of the proposed Additional Parity Obligations, or (ii) the twelve (12) months next preceding the adoption of such ordinance are equal to at least 1,20 times the average annual principal and interest requirements of all bonds to be secured by a first lien on and pledge of the Net Revenues of the System after giving effect to the issuance of the proposed Additional Parity Obligations, as such Net Earnings are shown by a report by a Certified Public Accountant or a Licensed Public Accountant. The term "Net Earnings" as used in this Section shall mean the Gross Revenues after deducting Maintenance and Operating Expenses, but not deducting depreciation or expenditures which, under standard accounting practice, should be charged to capital expenditures. D. January mature. The Additional Parity Obligations are made to mature on 1 of each of the years in which they are scheduled to E. The ordinance authorizing issuance of the Additional Parity Obligations provides for the accumulation in the Interest and Sinking Fund of amounts sufficient to pay the principal and interest on such Additional Parity Obligations as the same mature. F. The ordinance authorizing the issuance of Additional Parity Obligations provides that the amount to be accumulated and maintained in the Reserve Fund (including the amount required to be deposited therein by the provisions of this Ordinance) will be equal to not less than the average annual principal and interest requirements for all Obligations Similarly Secured which will be Outstanding after giving effect to the issuance of the proposed Additional Parity Obligations (such average annual requirement to be calculated on a Fiscal Year basis as of the date of the proposed Additional Parity Obligations). Any additional Reserve Fund Amount shall be required (by such authorizing ordinance) to be accumulated therein within sixty (60) calendar months from the date of issuance of the proposed Additional Parity Obligations. SECTION 19: Refundinq Bonds. The City reserves the right to issue refunding bonds to refund all or any part of the Outstanding Obligations Similarly Secured, pursuant to any law then available, upon such terms and conditions as the City Council of the City may deem to be in the best interest of the City and its inhabitants, and if less than all such Outstanding Obligations Similarly Secured are refunded, the conditions precedent prescribed, for the issuance of Additional Parity Obligations, set forth in Section 18 of this Ordinance shall be satisfied and the Accountant's certificate or opinion required in subparagraph (C) shall give effect to the principal and interest requirements of the proposed refunding bonds (but shall not give effect to the Obligations 0310895 -27- Similarly Secured being refunded following their cancellation or provision being made for their payment) . SECTION 20: Obliqations of Inferior Lien and Pledqe. The City hereby reserves the right to issue, at any time, obligations payable from and secured by a lien on and pledge of the Net Revenues of the System, junior and subordinate in rank and dignity to the lien on and pledge of such Net Revenues securing the payment of the Obligations Similarly Secured, as may be authorized by the laws of the State of Texas. SECTION 21: Securitv of Funds. All moneys on deposit in the funds for which this Ordinance makes provision (except any portion thereof as may be at any time properly invested) shall be secured in the manner and to the fullest extent required by the laws of Texas for the security of public funds, and moneys on deposit in such funds shall be used only for the purposes permitted by this Ordinance, SECTION 22: Maintenance of System - Insurance. The City covenants, agrees and reaffirms its covenants to the Holders of the Previously Issued Bonds that while the Bonds remain Outstanding, it will maintain and operate the System with all possible efficiency and maintain casualty and other insurance on the properties of the System and its operations of a kind and in such amounts customarily carried by municipal corporations in the State of Texas engaged in a similar type of business, SECTION 23: Records and Accounts - Annual Audit. The City covenants, agrees and reaffirms its covenants to the Holders of the Previously Issued Bonds that so long as any of the Bonds remain Outstanding, it will keep and maintain separate and complete records and accounts pertaining to the operations of the System in which complete and correct entries shall be made of all transactions relating thereto, as provided by Texas Revised Civil Statutes Annotated Article 1113, as amended, or other applicable law. The Holder or Holders of the Bonds of any duly authorized agent or agents of such Holders shall have the right to inspect the System and all properties comprising the same. The City further agrees that following the close of each Fiscal Year, it will cause an audit of such books and accounts to be made by an independent firm of Certified Public Accountants. This audit will address, at a minimum, the requirements set forth in the ordinances authorizing the issuance of the Previously Issued Bonds. Copies of each annual audit shall be furnished to the Executive Director of the Municipal Advisory Council of Texas at his office in Austin, Texas, and, upon written request, to the initial purchaser of the Bonds and any subsequent Holder thereof. 0310895 -28- SECTION 24: Remedies in Event of Default. In addition to all the rights and remedies provided by the laws of the State of Texas, the City covenants and agrees particularly that in the event the City (a) defaults in the payments to be made to the Interest and Sinking Fund or the Reserve Fund, or (b) defaults in the observance or performance of any other of the covenants, conditions or obligations set forth in this Ordinance, the Holder or Holders of any of the Bonds shall be entitled to a writ of mandamus issued by a court of proper jurisdiction compelling and requiring the governing body of the City and other officers of the City to observe and perform any covenant, condition or obligation prescribed in this Ordinance. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every such right or power may be exercised from time to time and as often as may be deemed expedient. The specific remedies herein provided shall be cumulative of all other existing remedies and the specification of such remedies shall not be deemed to be exclusive. SECTION 25: SDecial Covenants. further covenants as follows: That the City hereby A. It has the lawful power to pledge the Net Revenues supporting this issue of Bonds and has lawfully exercised said powers under the Constitution and laws of the State of Texas, including said power existing under Texas Revised Civil Statutes Annotated Articles 1111 et seq, as amended, and Texas Revised Civil Statutes Annotated Article 2368a, as amended. B. The Obligations Similarly Secured shall be equally and ratably secured by a lien on and a pledge of the Net Revenues of the System in a manner that one bond shall have no preference over any other bond. C. Other than for the payment of the Outstanding Obligations Similarly Secured, the Bonds, and the outstanding "City of Colleyville, Texas, Tax and Waterworks and Sewer System (Limited Pledge) Revenue Certificates of Obligation, Series 1989", dated August 1, 1989 and "City of Colleyville, Texas, Tax and Waterworks and Sewer System (Limited Pledge) Revenue Certificates of Obligation, Series 1991, dated January 1, 1991, the Net Revenues of the System have not in any manner been pledged to the payment of any debt or obligation of the City or of the System. D. interest lease or As long as any Obligations Similarly Secured, or any thereon, remain Outstanding, the City will not sell, encumber the System or any substantial part thereof, 0310895 -29- provided that this covenant shall not be construed to prohibit the sale of such machinery, or other properties or equipment which has become obsolete or otherwise unsuited to the efficient operation of the System; also, with the exception of Additional Parity Obligations issued in accordance with the terms and conditions of this Ordinance, it will not encumber the Net Revenues unless such encumbrance is made junior and subordinate to all of the provisions of this Ordinance. E. No free service of the System shall be allowed, and should the City or any of its agents or instrumentalities make use of the services and facilities of the System, payment of the reasonable value thereof shall be made by the City out of funds from sources other than the revenues and income of the System. F, To the extent that it legally may, the City further covenants and agrees that, so long as any of the Obligations Similarly Secured, or any interest thereon, are Outstanding, no franchise shall be granted for the installation or operation of any competing waterworks and sanitary sewer systems other than those owned by the City, and the operation of any such systems by anyone other than the City is hereby prohibited. SECTION 26: Soecial Obliqations. The Bonds are limited, special obligations of the City payable solely from and secured by a lien on and pledge of the Net Revenues of the System, and the Holders thereof shall never have the right to demand payment of the principal or interest on the Bonds from any funds raised or to be raised through taxation by the City. SECTION 27: 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 mailed, first class postage prepaid, to the address of each Holder as it appears in the Security Register. 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 any other Holders. Where this Ordinance provides for notice in any manner, such notice may be waived in writing by the Holder entitled to receive such notice, either before or after the event with respect to which such notice is given, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. 0310895 -30- SECTION 28: Cancellation. All Bonds surrendered for payment, redemption, transfer, exchange, or replacement, if surrendered to the Paying Agent/Registrar, shall be promptly cancelled by it and, if surrendered to the City, shall be delivered to the Paying Agent/Registrar and, if not already cancelled, shall be promptly cancelled by the Paying Agent/Registrar. The City may at any time deliver to the Paying Agent/Registrar for cancellation any Bonds previously certified or registered and delivered which the City may have acquired in any manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the Paying Agent/Registrar. All cancelled Bonds held by the Paying Agent/Registrar shall be destroyed as directed by the City. SECTION 29: Mutilated. Destroyed. Lost. and Stolen Bonds, In case any Bond shall be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may execute and deliver a replacement Bond of like form and tenor, and in the same denomination and bearing a number not contemporaneously outstanding, in exchange and substitution for such mutilated Bond, or in lieu of and in substitution for such destroyed, lost or stolen Bond, only upon the approval of the City and after (i) the filing by the Holder thereof with the Paying Agent/Registrar of evidence satisfactory to the Paying Agent/Registrar of the destruction, loss or theft of such Bond, and of the authenticity of the ownership thereof and (ii) the furnishing to the Paying Agent/Registrar of indemnification in an amount satisfactory to hold the City and the Paying Agent/Registrar harmless, All expenses and charges associated with such indemnity and with the preparation, execution and delivery of a replacement Bond shall be borne by the Holder of the Bond mutilated, or destroyed, lost or stolen. Every replacement Bond issued pursuant to this Section shall be a valid and binding obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably with all other Outstanding Bonds; notwithstanding the enforceability of payment by anyone of the destroyed, lost, or stolen Bonds, The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement and payment of mutilated, destroyed, lost or stolen Bonds. SECTION 30: Satisfaction of Obliqation of City. If the City shall payor cause to be paid, or there shall otherwise be paid to the Holders, the principal of and interest on the Bonds, at the times and in the manner stipulated in this Ordinance, then the pledge of any taxes, or Net Revenues of the System or other money, securities, and funds pledged under this Ordinance and all covenants, agreements, and other obligations of the City to the 0310895 -31- Holders shall thereupon cease, terminate, and become void and be discharged and satisfied, and the Paying Agent/Registrar shall pay over or deliver all money held by it under this Ordinance to the City. Bonds or any principal amount(s) thereof shall be deemed to have been paid within the meaning and with the effect expressed above in this Section when (i) money sufficient to pay in full such Bonds or the principal amount(s) thereof at maturity or to the redemption date therefor, together with all interest due thereon, shall have been irrevocably deposited with and held in trust by the Paying Agent/Registrar, or an authorized escrow agent, or (ii) Government Obligations shall have been irrevocably deposited in trust with the Paying Agent/ Registrar, or an authorized escrow agent which Government Obligations have been certified by an independent accounting firm to mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money, together with any moneys deposited therewith, if any, to pay when due the principal of and interest on such Bonds, or the principal amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of redemption has been duly given or waived or if irrevocable arrangements therefor acceptable to the Paying Agent/Registrar have been made) the redemption date thereof. The City covenants that no deposit of moneys or Government Obligations will be made under this Section and no use made of any such deposit which would cause the Bonds to be treated as "arbitrage bonds" within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, or regulations adopted pursuant thereto. Any moneys so deposited with the Paying Agent/Registrar, or an authorized escrow agent, and all income from Government Obligations held in trust by the Paying Agent/Registrar or an authorized escrow agent, pursuant to this Section which is not required for the payment of the Bonds, or any principal amount(s) thereof, or interest accruing thereon, with respect to which such moneys have been so deposited shall be remitted to the City or deposited as directed by the City. Furthermore, any money held by the Paying Agent/Registrar for the payment of the principal of and interest on the Bonds and remaining unclaimed for a period of four (4) years after the Stated Maturity, or applicable redemption date, of the Bonds such moneys were deposited and are held in trust to pay shall, upon the request of the City, be remitted to the City against a written receipt therefor. Notwithstanding the above and foregoing, any remittance of funds from the Paying Agent/Registrar to the City shall be subject to any applicable unclaimed property laws of the State of Texas. SECTION 31: Ordinance a Contract - Amendments - Outstandinq Bonds, The City acknowledges that the covenants and obligations of 0310895 -32- the City herein contained are a material inducement to the purchase of the Bonds. This Ordinance shall constitute a contract with the Holders from time to time, binding on the City and its successors and assigns, and shall not be amended or repealed by the City so long as any Bond remains Outstanding except as permitted in this Section. The City may, without the consent of or notice to any Holders, from time to time and at any time, amend this Ordinance in any manner not detrimental to the interests of the Holders, including the curing of any ambiguity, inconsistency, or formal defect or omission herein. In addition, the City may, with the written consent of Holders holding a majority in aggregate principal amount of the Bonds then Outstanding affected thereby, amend, add to, or rescind any of the provisions of this Ordinance; provided that, without the consent of all Holders of Outstanding Bonds, no such amendment, addition, or rescission shall (1) extend the time or times of payment of the principal of and interest on the Bonds, 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 or interest on the Bonds, (2) give any preference to any Bond over any other Bond, or (3) reduce the aggregate principal amount of Bonds required for consent to any such amendment, addition, or rescission. SECTION 32: Covenants to Maintain Status. (a) Definitions. When used in this following terms shall have the following meanings: Tax-Exemot Section, the "Closing Date" means the date on which the Bonds are first authenticated and delivered to the initial purchasers against payment therefor, "Code" means the Internal Revenue Code of 1986, as amended by all legislation, if any, effective on or before the Closing Date. "Computation Date" has the meaning set forth in Section 1.148-1(b) of the Regulations. "Gross Proceeds" means any proceeds as defined in Section 1.148-1(b) of the Regulations, and any replacement proceeds as defined in Section 1.148 -1 (c) of the Regulations, of the Bonds. "Investment" has the meaning set forth in Section 1.148-1(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 Bonds are invested and which 0310890 -33- is not acquired to carry out the governmental purposes of the Bonds. "Rebate Amount" has the meaning set forth in Section 1.148-1(b) of the Regulations, "Regulations" means any proposed, temporary, or final Income Tax Regulations issued pursuant to Sections 103 and 141 through 150 of the Code, and 103 of the Internal Revenue Code of 1954, which are applicable to the Bonds. Any reference to any specific Regulation shall also mean, as appropriate, any proposed, temporary or final Income Tax Regulation designed to supplement, amend or replace the specific Regulation referenced. "Yield" of (1) any Investment has the meaning set forth in Section 1.148-5 of the Regulations; and (2) the Bonds has the meaning set forth in Section 1.148-4 of the Regulations. (b) Not to Cause Interest to Become 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 Bond to become includable in the gross income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes. Without limiting the generality of the foregoing, unless and until the City receives a written opinion of counsel nationally recognized in the field of municipal bond law to the effect that failure to comply with such covenant will not adversely affect the exemption from federal income tax of the interest on any Bond, the City shall comply with each of the specific covenants in this Section. (c) No Private Use or Private Pavrnents. Except as permitted by section 141 of the Code and the Regulations and rulings thereunder, the City shall at all times prior to the last Stated Maturity of Bonds: (1) exclusively own, operate and possess all property the acquisition, construction or improvement of which is to be financed or refinanced directly or indirectly with Gross Proceeds of the Bonds (including property financed with Gross Proceeds of the Refunded 0310895 -34- Obligations), and not use or permit the use of such Gross Proceeds (including all contractual arrangements with terms different than those applicable to the general public) or any property acquired, constructed or improved with such Gross Proceeds in any activity carried on by any person or entity (including the United States or any agency, department and instrumentality thereof) other than a state or local government, unless such use is solely as a member of the general public; and (2) not directly or indirectly impose or accept any charge or other payment by any person or entity who is treated as using Gross Proceeds of the Bonds or any property the acquisition, construction or improvement of which is to be financed or refinanced directly or indirectly with such Gross Proceeds (including property financed with Gross Proceeds of the Refunded Obligations), other than taxes of general application within the City or interest earned on investments acquired with such Gross Proceeds pending application for their intended purposes. (d) No Private Loan. Except to the extent permitted by section 141 of the Code and the Regulations and rulings thereunder, the City shall not use Gross Proceeds of the Bonds to make or finance loans to any person or entity other than a state or local government. For purposes of the foregoing covenant, such Gross Proceeds are considered to be "loaned" to a person or entity if: (1) property acquired, constructed or improved with such Gross Proceeds is sold or leased to such person or entity in a transaction which creates a debt for federal income tax purposes; (2) capacity in or service from such property is committed to such person or entity under a take-or-pay, output or similar contract or arrangement; or (3) indirect benefits, or burdens and benefits of ownership, of such Gross Proceeds or any property acquired, constructed or improved with such Gross Proceeds are otherwise transferred in a transaction which is the economic equivalent of a loan. (e) Not to Invest at Hiqher Yield, Except to the extent permitted by section 148 of the Code and the Regulations and rulings thereunder, the City shall not at any time prior to the final Stated Maturity of the Bonds directly or indirectly invest Gross Proceeds in any Investment (or use Gross Proceeds to replace money so invested), if as a result of such investment the Yield from the Closing Date of all Investments acquired with Gross Proceeds (or with money replaced thereby), whether then held or previously disposed of, exceeds the Yield of the Bonds. 0310895 -35- (f) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the Code and the Regulations and rulings thereunder, the City shall not take or omit to take any action which would cause the Bonds to be federally guaranteed within the meaning of section 149(b) of the Code and the Regulations and rulings thereunder, (g) Information Reoort. The City shall timely file the information required by section 149 (e) of the Code with the Secretary of the Treasury on Form 8038-G or such other form and in such place as the Secretary may prescribe. (h) Rebate of Arbitraqe Profits. otherwise provided ~n section 148(f) Regulations and rulings thereunder: Except to the extent of the Code and the (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 years after the day on which the last Outstanding Bond is discharged. However, to the extent permitted by law, the City may commingle Gross Proceeds of the Bonds with other money of the City, provided that the City separately accounts for each receipt and expenditure of Gross Proceeds and the obligations acquired therewith. (2) Not less frequently than each Computation Date, the City shall calculate the Rebate Amount in accordance with rules set forth in section 148(f) of the Code and the Regulations and rulings thereunder. The City shall maintain such calculations with its official transcript of proceedings relating to the issuance of the Bonds until six years after the final Computation Date, (3) As additional consideration for the purchase of the Bonds by the Purchasers and the loan of the money represented thereby and in order to induce such purchase by measures designed to insure the excludability of the interest thereon from the gross income of the owners thereof for federal income tax purposes, the City shall pay to the United States out of the Interest and Sinking Fund or its general fund, as permitted by applicable Texas statute, regulation or opinion of the Attorney General of the State of Texas, the amount that when added to the future value of previous rebate payments made for the Bonds equals (i) in the case of a Final 0310895 -36- 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) Not to Divert Arbitraqe Profits. Except to the extent permitted by section 148 of the Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the earlier of the Stated Maturity or final payment of the Bonds, enter into any transaction that reduces the amount required to be paid to the United States pursuant to Subsection (h) of this Section because such transaction results in a smaller profit or a larger loss than would have resulted if the transaction had been at arm's length and had the Yield of the Bonds not been relevant to either party, (j) Elections. The City hereby directs and authorizes the City Manager, Director of Finance and City Secretary, individually or jointly, to make elections permitted or required pursuant to the provisions of the Code or the Regulations, as they deem necessary or appropriate in connection with the Bonds, in the Certificate as to Tax Exemption or similar or other appropriate certificate, form or document. (k) Bonds Not Hedqe Bonds. At the time the original bonds refunded by the Bonds were issued, the City reasonably expected to spend at least 85% of the spendable proceeds of such bonds within three years after such bonds were issued and not more than 50% of the proceeds of the original bonds refunded by the Bonds were invested in Nonpurpose Investments having a substantially guaranteed Yield for a period of 4 years or more. 0310895 .37. (1) Oualified Advance Refunding. The Bonds are issued exclusively to refund the Refunded Obligations, and the Bonds will be issued more than 90 days before the redemption of the Refunded Obligations, The City represents as follows: (1) The Bonds are the first advance refunding of the Refunded Obligations, within the meaning of section 149(d) (3) of the Code. (2) The Refunded Obligations are being called for redemption, and will be redeemed not later than the earliest date on which such issue may be redeemed at par or at a premium of 3 percent or less and on which the City will realize present value debt service savings (determined without regard to administrative expenses) on the issue. (3) The initial temporary period under section 148 (c) of the Code will end: (i) with respect to the proceeds of the Bonds not later than 30 days after the date of issue of such Bonds; and (ii) with respect to proceeds of the Refunded Obligations on the Closing Date if not ended prior thereto, (4) On and after the date of issue of the Bonds, no proceeds of the Refunded Obligations will be invested in Nonpurpose Investments having a Yield in excess of the Yield on such Refunded Obligations, (5) The Bonds are being issued for the purposes stated in the preamble of this Ordinance. There is a present value savings associated with the refunding. In the issuance of the Bonds the City has neither: (i) overburdened the tax-exempt bond market by issuing more bonds, issuing bonds earlier or allowing bonds to remain outstanding longer than reasonably necessary to accomplish the governmental purposes for which the Bonds were issued; (ii) employed on "abusive arbitrage device" within the meaning of Section 1.148-10(a) of the Regulations; nor (iii) employed a "device" to obtain a material financial advantage based on arbitrage, within the meaning of section 149(d) (4) of the Code, apart from savings attributable to lower interest rates and reduced debt service payments in early years. SECTION 33: Oualified Tax Exempt Obliqations, In accordance with the provisions of paragraph (3) of subsection (b) of Section 265 of the Code, the City hereby designates the Bonds to be "qualified tax exempt obligations" in that the Bonds are not "private activity bonds" as defined in the Code and the reasonably 0310895 -38- anticipated amount of "qualified tax exempt obligations" to be issued by the City (including all subordinate entities of the City) for the calendar year 1996 will not exceed $10,000,000. SECTION 34: Sale of Bonds - Official Statement Aooroval. The Bonds authorized by this Ordinance are hereby sold by the City to BA Securities, Inc. and Texas Commerce Bank National Association (herein referred to collectively as the "Purchasers") in accordance with the Purchase Contract, dated March 19, 1996, attached hereto as Exhibit B and incorporated herein by reference as a part of this Ordinance for all purposes, The Mayor is hereby authorized and directed to execute said Purchase Contract for and on behalf of the City and as the act and deed of this Council, and in regard to the approval and execution of the Purchase Contract, the Council hereby finds, determines and declares that the representations, warranties and agreements of the City contained in the Purchase Contract are true and correct in all material respects and shall be honored and performed by the City. Furthermore, the use of the Official Statement by the Purchasers in connection with the public offering and sale of the Bonds is hereby ratified, confirmed and approved in all respects. The final Official Statement, which reflects the terms of sale, attached as Exhibit A to the Purchase Contract (together with such changes approved by the Mayor, City Secretary, City Manager of Director of Finance, one or both of said officials), shall be and is hereby in all respects approved and the Purchasers are hereby authorized to use and distribute said final Official Statement, dated March 19, 1996, in the reoffering, sale and delivery of the Bonds to the public. The Mayor and City Secretary are further authorized and directed to manually execute and deliver for and on behalf of the City copies of said Official Statement in final form as may be required by the Purchasers, and such final Official Statement in the form and content manually executed by said officials shall be deemed to be approved by the City Council and constitute the Official Statement authorized for distribution and use by the Purchasers. SECTION 35: Soecial Escrow Aqreement A(loroval and Execution. The "Special Escrow Agreement" (the "Agreement") by and between the City and The Bank of New York, New York, New York (the "Escrow Agent"), attached hereto as Exhibit C and incorporated herein by reference as a part of this Ordinance for all purposes, is hereby approved as to form and content, and such Agreement in substantially the form and substance attached hereto, together with such changes or revisions as may be necessary to accomplish the refunding or benefit the City, is hereby authorized to be executed by the Mayor and City Secretary for and on behalf of the City and as the act and deed of this City Council; and such 0310895 -39- Agreement as executed by said officials shall be deemed approved by the City Council and constitute the Agreement herein approved. Furthermore, appropriate officials of the City in cooperation with the Escrow Agent are hereby authorized and directed to make the necessary arrangements for the purchase of the Federal Securities referenced in the Agreement and the delivery thereof to the Escrow Agent on the day of delivery of the Bonds to the Purchasers for deposit to the credit of the "SPECIAL 1996 CITY OF COLLEYVILLE, TEXAS, REVENUE REFUNDING BOND ESCROW FUND" (the "Escrow Fund"); all as contemplated and provided in Article 717k, V.A.T.C.S" as amended, this Ordinance and the Agreement. SECTION 36: Control and Custodv of Bonds. The Mayor of the City shall be and is hereby authorized to take and have charge of all necessary orders and records pending investigation by the Attorney General of the State of Texas, including the printing and supply of definitive Bonds, and shall take and have charge and control of the Initial Bonds pending the approval thereof by the Attorney General, the registration thereof by the Comptroller of Public Accounts and the delivery thereof to the Purchasers. Furthermore, the Mayor, Mayor Pro Tern, City Secretary, City Manager, Assistant City Manager and Director of Finance, anyone or more of said officials, are hereby authorized and directed to furnish and execute such documents and certifications relating to the City and the issuance of the Bonds, including certifications as to facts, estimates, circumstances and reasonable expectations pertaining to the use, expenditure and investment of the proceeds of the Bonds, as may be necessary for the approval of the Attorney General, the registration by the Comptroller of Public Accounts and the delivery of the Bonds to the Purchasers, and, together with the City's financial advisor, bond counsel and the Paying Agent/Registrar, make the necessary arrangements for the delivery of the Initial Bond(s) to the Purchasers and the initial exchange thereof for definitive Bonds. SECTION 37: Proceeds of Sale. Immediately following the delivery of the Bonds, proceeds of sale thereof (less certain costs of issuance and accrued interest received from the Purchasers of the Bonds) shall be deposited with the Escrow Agent for application and disbursement in accordance with the provisions of the Agreement. The proceeds of sale of the Bonds not so deposited with the Escrow Agent for the refunding of the Refunded Obligations shall be disbursed for payment of costs of issuance and deposited in the Interest and Sinking Fund, the Reserve Fund and the construction fund, all in accordance with written instructions to the Escrow Agent from the Director of Finance. 0310895 -40- SECTION 38: Leqal Opinion, The obligation of the Purchasers to accept delivery of the Bonds is subject to being furnished a final opinion of Fulbright & Jaworski L,L.P., Attorneys, Dallas, Texas, approv~ng such Bonds as to their validity, said opinion to be dated and delivered as of the date of delivery and payment for such Bonds. A true and correct reproduction of said opinion or an executed counterpart thereof is hereby authorized to be either printed on definitive printed obligations or deposited with DTC along with the global certificates for the implementation and use of the Book Entry Only System used in the settlement and transfer of the Bonds. SECTION 39: CUSIP Numbers. CUSIP numbers may be printed or typed on the definitive Bonds. It is expressly provided, however, that the presence or absence of CUSIP numbers on the definitive Bonds shall be of no significance or effect as regards the legality thereof and neither the City nor attorneys approving said Bonds as to legality are to be held responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds. SECTION 40: 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 41: 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 42: Governinq Law, This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. SECTION 43: 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 this governing body hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION 44: 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 0310895 -41- be considered to include the singular, and words of the masculine, feminine or neuter gender shall be considered to include the other genders, SECTION 45: Incorooration of Findinqs and Determinations, The findings and determinations of the City Council contained in the preamble hereof are hereby incorporated by reference and made a part of this Ordinance for all purposes as if the same were restated in full in this Section. SECTION 46: Amendments to Ordinance Uoon Discharqe of Previous Iv Issued Bonds. That, at such time as the Series 1975, Series 1975-A, Series 1981 and Series 1987 previously Issued Bonds identified in Section 10 have been paid or are no longer Outstanding, the following Sections of this Ordinance shall be amended and modified to read as follows: (a) Section 10 shall be amended and modified to read as follows: "SECTION 10: Definitions, For all purposes of this Ordinance and in particular for clarity with respect to the issuance of the Bonds herein authorized and the pledge and appropriation of revenues to the payment of the Bonds, the following definitions are provided: "Additional Parity Obligations" - Bonds, notes, warrants, certificates of obligation or other evidences of indebtedness which the City reserves the right to issue or enter into, as the case may be, in the future under the terms and conditions provided in Section 18 of this Ordinance and which are equally and ratably secured by a first lien on and pledge of the Net Revenues of the System. "Average Annual Debt Service" - That average amount which, at the time of computation, will be required to pay the Debt Service of obligations when due and derived by dividing the total of such Debt Service by the number of years then remaining before final maturity, Capitalized interest payments provided from proceeds of Obligations Similarly Secured shall be excluded in making the aforementioned computation. 0310895 -42- "Bonds" - The "City of Colleyville, Texas Waterworks and Sewer System Refunding and Improvement Revenue Bonds, Series 1996", dated March 15, 1996, authorized by this Ordinance. "City" - The City of Colleyville, located in the County of Tarrant, Texas, "Debt Service" - As of any particular date of computation, with respect to any obligations and with respect to any period, the aggregate of the amounts to be paid or set aside by the City as of such date or in such period for the payment of the principal of, premium, if any, and interest (to the extent not capitalized) on such obligations; assuming, in the case of Obligations Similarly Secured without a fixed numerical rate, that such obligations bear, or would have borne, interest at the highest rate reached, or that would have applied to such obligations (using the index or method for computing interest applicable to such obligations) during the twenty-four (24) month period next preceding the date of computation; and further assuming in the case of obligations required to be redeemed or prepaid as to principal prior to maturity, the principal amounts thereof will be redeemed prior to maturity in accordance with the mandatory redemption provisions applicable thereto. "Fiscal Year" - The twelve month financial accounting period for the System ending September 30th of each year; provided, however, the City, by ordinance, may change the Fiscal Year to another period of not less than twelve calendar months. "Government Obligations" - Direct 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, and United States Treasury obligations such as its State and Local Government Series in book-entry form. 0310895 -43- "Gross Revenues" - All income and revenues of every nature derived or received from the operation and ownership (excluding refundable meter deposits, gifts and grants in aid of construction, impact fees charged developers and special assessments against landowners) of the System, including earnings and income derived from the investment or deposit of moneys in any special funds or accounts created and established for the payment and security of the Obligations Similarly Secured and other obligations payable solely from and secured only by a lien on and pledge of the Net Revenues. "Maintenance and Operating Expenses" - All current expenses of operating and maintaining the System, including all salaries, labor, materials, repairs and extensions necessary to render efficient service; provided, however, that only such repairs and extensions, as in the judgment of the City Council, reasonably and fairly exercised, are necessary to maintain the operations and render adequate service to the City and the inhabitants thereof, or such as might be necessary to meet some physical accident or condition which would otherwise impair obligations payable from Net Revenues shall be deducted in determining "Net Revenues", Depreciation charges shall not be considered Operating and Maintenance Expenses, Operating and Maintenance Expenses shall include payments under contracts for the purchase of water supply, treatment of sewage or other materials, goods or services for the System to the extent authorized by law and the provisions of such contract. "Net Earnings" - The meaning assigned to such term in Section 18 hereof, "Net Revenues" - Gross Revenues of the System, with respect to any period, after deducting the System's Maintenance and Operating Expenses during such period, "Outstanding" - When used in this Ordinance with respect to Bonds or Obligations Similarly Secured means, as of 0310895 -44- 0310895 the date of determination, all Bonds or Obligations Similarly Secured theretofore issued and delivered under their respective authorizing ordinances, except: (1) those Bonds or Similarly Secured cancelled or cancellation by the appropriate therefor; Obligations received for paying agent (2) those Bonds or Obligations Similarly Secured paid or deemed to be duly paid by the City in accordance with the provisions of the ordinances governing their issuance and applicable laws; and (3) those Bonds or Obligations Similarly Secured that have been mutilated, destroyed, lost, or stolen and replacement Bonds have been registered and delivered in lieu thereof in accordance with applicable terms and provisions. "Previously Issued Bonds" - shall mean the Outstanding and unpaid revenue bonds of the City payable from and equally and ratably secured by a first lien on and pledge of the Net Revenues of the System, identified as follows: (1) City of Colleyville, Texas, Waterworks and Sewer System Revenue Bonds, Series 1989, dated August 1, 1989, and originally issued in the principal amount of $750,000; and (2) City of Colleyville, Texas, Waterworks and Sewer System Revenue Bonds, Series 1994, dated June 1, 1994, and originally issued in the principal amount of $2,860,000. "Obligations Similarly Secured"- Collectively, the Bonds, the Previously Issued Bonds and any Additional Parity Obligations, which shall be parity obligations being equally and ratably secured by and payable from a lien on and pledge of the Net Revenues of the System. -45- "Required Reserve" - The amount required to be accumulated and maintained in the Reserve Fund under the provisions of Section 15, "System" - All properties, facilities and plants currently owned, operated and maintained by the City for the supply, treatment, transmission and distribution of potable water and the collection, treatment and disposal of water-carried wastes, together with all future extensions, improvements, replacements and additions thereto; provided, however, that notwithstanding the foregoing, and to the extent now or hereafter authorized or permitted by law, the term "System" shall not mean to include facilities of any kind which are declared not to be a part of the System and which are acquired or constructed by or on behalf of the City with the proceeds from the issuance of "Special Facilities Bonds", which are hereby defined as being special revenue obligations of the City which are not Bonds but which are payable from and secured by other liens on and pledges of any revenues, sources or payments, not pledged to the payment of the Obligations Similarly Secured including, but not limited to, special contract revenues or payments received from any other legal entity in connection with such facilities." (b) follows: Section 12 shall be amended and modified to read as "SECTION 12: Rates and Charqes, That, for the benefit of the Holders of the Bonds and in addition to all provisions and covenants in the laws of the State of Texas and in this Ordinance, the City hereby expressly stipulates and agrees, while any of the Bonds are Outstanding, to establish and maintain rates and charges for facilities and services afforded by the System that are reasonably expected, on the basis of available information and experience and with due allowance for contingencies, to produce Gross Revenues in each Fiscal Year sufficient: 0310895 -46- (1) To pay Maintenance and Operating Expenses, depreciation charges and replacement and betterment costs, (2) To produce Net Revenues sufficient to pay the current Debt Service on the obligations Similarly Secured then Outstanding and the amounts required to be deposited in any reserve or contingency fund created for the payment and security of the Obligations Similarly Secured, or other evidences of indebtedness issued or incurred that are payable only from and secured solely by a lien on and pledge of the Net Revenues of the System, and (3) To produce Net Revenues equal to at least 1,20 times the annual Debt Service for the Obligations Similarly Secured then Outstanding. (c) follows: (4) To pay all other indebtedness payable from the Net Revenues and/or secured by a lien on the properties or the revenues of the System. Section 13 shall be amended and modified to read as "SECTION 13: Water and Sewer Svstem Fund. The City hereby covenants and agrees that Gross Revenues of the System (excluding earnings and income derived from investments held in the Interest and Sinking Fund and Reserve Fund) shall be deposited as collected to the credit of a fund maintained at an official depository of City funds and known on the books and records of the City as the "Water and Sewer System Fund" (herein called the "System Fund"), and such revenues of the System shall be kept separate and apart from all other funds of the City. All revenues deposited in the System Fund shall be pledged and appropriated to the extent required for the following uses and in the order of priority shown: (1) To the payment of all necessary and reasonable Maintenance and Operating Expenses as defined herein or required by statute to be a first charge on and claim against the Gross Revenues thereof. 0310895 -47- (2) To the payment of the amounts required to be deposited in the Interest and Sinking Fund established and maintained for the payment of Debt Service on the Obligations Similarly Secured as the same becomes due and payable, (3) To the payment of the amounts required to be deposited in the Reserve Fund to accumulate and maintain therein the Required Reserve in accordance with the provisions of this Ordinance or any other ordinance relating to issuance of Obligations Similarly Secured. Any Net Revenues remaining in the System Fund after satisfying the foregoing payments, or making adequate and sufficient provision for the payment thereof, may be appropriated and used for any other City purpose now or hereafter permitted by law." (d) follows: Section 14 shall be amended and modified to read as "SECTION 14: Interest and Sinkinq Fund, For purposes of providing funds to pay current Debt Service on Obligations Similarly Secured when and as the same shall become due and payable, a separate and special account shall be established and maintained on the books and records of the City known as the "City of Colleyville Revenue Bond Interest and Sinking Fund" (the "Interest and Sinking Fund") and all funds deposited to the credit of such Fund shall be kept and maintained in a special banking account or fund maintained at an official depository of the City. In addition to the deposits to the Interest and Sinking Fund for the payment of the Previously Issued Bonds, the City covenants that there shall be deposited into the Interest and Sinking Fund prior to each principal and interest payment date from the Net Revenues an amount equal to one hundred per centum (100%) of the amount required to fully pay the interest on and the principal of the Bonds then falling due and payable by reason of maturity or redemption, and such deposits to pay principal and accrued interest on the Bonds shall be made in substantially equal monthly installments on or before the 15th day of each month, beginning on or before the 15th day of the month next following the delivery of the Bonds to the initial purchaser. If the Net Revenues in any month are then insufficient to make 0310895 -48- the required payments into the Interest and Sinking Fund, then the amount of any deficiency in the payment shall be added to the amount otherwise required to be paid into the Interest and Sinking Fund in the next month. "The required monthly deposits to the Interest and Sinking Fund for the payment of principal of and interest on the Bonds shall continue to be made as hereinabove provided until (i) the total amount on deposit in the Interest and Sinking Fund and Reserve Fund is equal to the amount required to fully pay and discharge all Obligations Similarly Secured then Outstanding (principal and interest) or (ii) the Bonds are no longer Outstanding. "Accrued interest and premium, if any, received from the purchaser(s) of the Bonds, as well as earnings derived from the investment of moneys in the Interest and Sinking Fund, shall be deposited to the credit of the Interest and Sinking Fund and taken into consideration and reduce the amount of the monthly deposits hereinabove required to be deposited in the Interest and Sinking Fund from the Net Revenues of the System. " (e) follows: Section 15 shall be amended and modified to read as "SECTION 15: Reserve Fund. For purposes of accumulating and maintaining funds as a reserve for the payment of the Obligations Similarly Secured, the City agrees and covenants to create and maintain on the books and records of the City a separate and special fund or account known as the "Revenue Bond Reserve Fund" (the "Reserve Fund"), and all funds deposited to the credit of such Fund shall be kept and maintained in a special banking account or fund maintained at an official depository of the City. All funds deposited therein (excluding earnings and income derived or received from deposits or investments which may be transferred to the System Fund referred to in Section 13 hereof during such periods as there is on deposit in the Reserve Fund the Required Reserve) shall be used solely for the payment of the principal of and interest on the Obligations Similarly Secured when (whether at maturity, upon a mandatory redemption date or any interest payment date) other funds available for such purposes are insufficient, and, in addition, may be used to the extent not required to maintain the "Required Reserve", 0310895 -49- to pay, or provide for the payment of, the final principal amount of a series of Obligations Similarly Secured so that such series of Obligations Similarly Secured is no longer deemed to be "Outstanding" as such term is defined herein. "The City hereby reaffirms that it will accumulate and, when accumulated, continuously maintain in the Reserve Fund an amount equal to the lesser of (i) the Average Annual Debt Service (calculated on a Fiscal Year basis) for all Obligations Similarly Secured then Outstanding, as determined on the date each series of Additional Parity Obligations are delivered or incurred, as the case may be, or (ii) the maximum amount in a reasonably required reserve fund that can be invested without restriction as to yield pursuant to Subsection (d) of Section 148 of the Internal Revenue Code of 1986, as amended, and regulations promulgated thereunder -- the "Required Reserve". By reason of the issuance of the Bonds, the Required Reserve shall be an amount equal to the Average Annual Debt Service (calculated on a Fiscal Year basis) for all Obligations Similarly Secured that are Outstanding at the time the provisions hereof become operative and effective, and the City shall continue to make monthly deposits in the Reserve Fund, if then required, on or before the 15th day of each month in substantially equal amounts so that the Required Reserve shall have been accumulated in the Reserve Fund within 60 months from the date of issuance of the Bonds. "When and so long as the cash and investments in the Reserve Fund total not less than the Required Reserve, no deposits need be made to the credit of the Reserve Fund; but, if and when the Reserve Fund at any time contains less than the Required Reserve, the City covenants and agrees to cure the deficiency in the Required Reserve by resuming monthly deposits to said Fund from the Net Revenues of the System; such monthly deposits to be in amounts equal to not less than 1/60th of the then total Required Reserve to be maintained in said Fund and to be made on or before the 15th day of each month until the total Required Reserve then to be maintained in said Fund has been fully restored, The City further covenants and agrees that, subject only to the payments to be made to the Interest and Sinking Fund, the Net Revenues shall be applied and appropriated and used to establish and maintain the Required Reserve and to cure any deficiency in such amounts as required 0310895 -50- by the terms of pertaining to Obligations. this Ordinance and any other ordinance the issuance of Additional Parity "During such time as the Reserve Fund contains the total Required Reserve, the City may, at its option, withdraw all surplus in the Reserve Fund in excess of the Required Reserve and deposit such surplus in the System Fund." (f) Section 16 shall be added and shall read as follows: "SECTION 16: Investments. Money deposited to the credit of any Fund referenced in this Ordinance may, at the option of the City, be invested in funds and obligations authorized and identified in the Public Funds Investment Act of 1987, as enacted or hereafter amended; provided, however, the investment of moneys in the Interest and Sinking Fund and Reserve Fund shall be restricted to Government Obligations and time deposits or certificates of deposit secured (to the extent not insured by the Federal Deposit Insurance Corporation) by Government Obligations; provided that all such deposits and investments shall be made in such a manner that the money required to be expended from any Fund will be available at the proper time or times. Such investments (except State and Local Government Series investments held in book entry form, which shall at all times be valued at cost) shall be valued in terms of current market value within 45 days of the close of each Fiscal Year and, with respect to investments held for the account of the Reserve Fund, within 30 days of the date of passage of each ordinance authorizing the issuance of Additional Parity Obligations. All interest and income derived from deposits and investments in the Interest and Sinking Fund immediately shall be credited to, and any losses debited to, the Interest and Sinking Fund. All interest and interest income derived from deposits in and investments of the Reserve Fund shall, subject to the limitations provided in Section 15 hereof, be credited to and deposited in the System Fund. All such investments shall be sold promptly when necessary to prevent any default in connection with the Bonds." (g) Sections 18, 19 and 20 shall be consolidated, merged, amended, modified and renumbered as Section 19 to read as follows: "SECTION 19: Issuance of Additional Pari tv Obli- qations-Refundinq Bonds-Obliqations Secured bv Inferior Lien. (a) Subject to the provisions hereinafter appearing as to 0310895 -51- conditions precedent which must be satisfied, the City reserves the right to issue, from time to time as needed, Additional Parity Obligations for any lawful purpose, Such Additional parity Obligations may be issued in such form and manner as now or hereafter authorized by the laws of the State of Texas for the issuance of evidences of indebtedness or other instruments, and should new methods or financing techniques be developed that differ from those now available and in normal use, the City reserves the right to employ the same in its financing arrangements provided only that the following conditions precedent for the authorization and issuance of the same are satisfied, to wit: (1) The Director of Finance of the City (or other officer of the City then having the primary responsibility for the financial affairs of the City) shall have executed a certificate stating (a) that, to the best of his knowledge and belief, the City is not then in defaul t as to any covenant, obligation or agreement contained in any ordinance or other proceeding relating to any obligations of the City payable from and secured by a lien on and pledge of the Net Revenues of the System that would materially affect the security or payment of such obligations and (b) either (i) payments into all special funds or accounts created and established for the payment and security of all outstanding obligations payable from and secured by a lien on and pledge of the Net Revenues of the System have been made and that the amounts on deposit in such special funds or accounts are the amounts then required to be on deposit therein or (ii) the application of the proceeds of sale of such obligations then being issued will cure any such deficiency. (2) The Additional Parity Obligations shall be scheduled to mature or be payable as to principal on January 1 or July 1 (or both) in each year the same are to be outstanding or during the term thereof. (3) The City has secured a certificate or opinion of an independent Certified Public Accountant to the effect that, according to the books and records of the City, the Net Earnings, for the preceding 0310895 -52- Fiscal Year or for 12 consecutive months out of the 15 months immediately preceding the month the ordinance authorizing the issuance of the Additional Parity Obligations is adopted, are at least equal to 1.25 times the Average Annual Debt Service for all Obligations Similarly Secured then Outstanding after giving effect to the issuance of the Additional Parity Obligations then being issued. In making a determination of the Net Earnings, the Accountant may take into consideration a change in the rates and charges for services and facilities afforded by the System that became effective at least sixty (60) days prior to the last day of the period for which Net Earnings are determined and, for purposes of satisfying the above Net Earnings test, make a pro forma determination of the Net Earnings of the System for the period of time covered by his certification or opinion based on such change in rates and charges being in effect for the entire period covered by the Accountant's certificate or opinion. "As used in this Section, the term "Net Earnings" shall mean the Gross Revenues of the System after deducting the Maintenance and Operating Expenses of the System, but not depreciation charges or expenditures which, under generally accepted accounting principles, should be charged to capital expenditures, " (b) The City reserves the right to issue refunding bonds to refund all or any part of the Obligations Similarly Secured (pursuant to any law then available) upon such terms and conditions as the City Council of the City may deem to be in the best interest of the City and its inhabitants, and if less than all such Obligations Similarly Secured then outstanding are refunded, the conditions precedent prescribed (for the issuance of Additional Parity Obligations) set forth in subparagraph (a) (3) of this Section shall be satisfied and the Accountant's certificate or opinion required in subparagraph (a) (3) shall give effect to the Debt Service of the proposed refunding bonds (and shall not give effect to the Debt Service of the Obligations Similarly Secured being refunded following their cancellation or provision being made for their payment) . 0310895 -53- "(c) The City hereby reserves the right to issue obligations payable from and secured by a lien on and pledge of the Net Revenues of the System, junior and subordinate in rank and dignity to the lien and pledge securing the payment of the Obligations Similarly Secured, as may be authorized by the laws of the State of Texas," (h) follows: Section 22 shall be amended and modified to read as "SECTION 22: Maintenance and Ooeration Insurance. The City shall maintain the System in good condition and operate the same in an efficient manner and at reasonable cost. In regard to the operations and properties of the System, the City also agrees to carry and maintain liability and property damage insurance of the kind and in the amounts carried by municipal corporations in Texas owning and operating similar facilities and providing like services; provided, however, the City in lieu of and/or in combination with carrying such insurance may sel f - insure against such perils and risks by establishing self - insurance reserves. Annually each year not later than the end of each Fiscal Year, the City shall prepare or cause to be prepared by a person competent and knowledgeable in such matters a written evaluation of the adequacy of such sel f - insurance and/ or insurance coverage and of any recommended changes in regard to the City's insurance/self-insurance policies, practices and procedures." (i) follows: Section 23 is hereby amended and modified to read as "SECTION 23: Records Accounts Accountinq Reoorts. The City hereby covenants and agrees that while any of the Bonds are Outstanding, it will keep and maintain separate and complete records and accounts pertaining to the operations of the System in which complete and correct entries shall be made of all transactions relating thereto, as provided by Article 1113, V,A,T.C.S. or other applicable law. The Holders of any Bonds or any duly authorized agent or agents of such Holders shall have the right at all reasonable times to inspect such records, accounts and data relating thereto, and to inspect the System and all properties comprising same. The City further agrees that following the close of each Fiscal Year, it will cause an audit of such books and accounts to be made by 0310895 -54- an independent firm of Certified Public Accountants. Each such audit, in addition to whatever other matters may be thought proper by the accountant, shall particularly include the following: (1) A statement of the income and expenses of the System for such Fiscal Year. (2) A balance sheet for the System as of the end of such Fiscal Year. (3) The Accountant's comments regarding the manner in which the City has carried out the requirements of this Ordinance and any other ordinance authorizing the issuance of Additional Parity Obligations and his recommendations for any changes or improvements in the operations, records and accounts of the System, "Expenses incurred in making an annual audit of the operations of the System are to be regarded as Operating and Maintenance Expenses. Copies of each annual audit shall be furnished to the Executive Director of the Municipal Advisory Council of Texas at his office in Austin, Texas, and, upon request, to the initial purchasers of the Bonds and subsequent Holders of any of said Bonds, The audits herein required shall be made within 120 days following the close of each Fiscal Year insofar as is possible." (j) Subparagraph D of Section 24 shall be amended and modified to read as follows: "D, While the Bonds remain Outstanding, the City will not sell or otherwise dispose of the System or, except as authorized below, any substantial portion of the System or its component parts; provided, however, to the extent and in the manner authorized by law, the City may sell or dispose of any property, facilities and equipment not necessary or essential to the operations of the System or which is obsolete, damaged or surplus and the proceeds of sale of such property, facilities and equipment, if any, shall be deposited to the credit of the System Fund." SECTION Definitions, the meanings 47: Continuinq Disclosure Undertakinq. As used in this Section, the following ascribed to such terms below: (a) terms have 0310895 -55- "MSRB" means the Municipal Securities Rulemaking Board, "NRMSIR" means each person whom the SEC or its staff has determined to be a nationally recognized municipal securities information repository within the meaning of the Rule from time to time. "Rule" means SEC Rule 15c2-12, as amended from time to time, "SEe" means the United States Securities and Exchange Conunission. "SID" means any person designated by the State of Texas or an authorized department, officer, or agency thereof as, and determined by the SEe or its staff to be, a state information depository within the meaning of the Rule from time to time. (b) Annual Reports. The City shall provide annually to each NRMSIR and any SID, within six months after the end of each fiscal year (beginning with the fiscal year ending September 30, 1996) financial information and operating data with respect to the City of the general type included in the final Official Statement approved by Section 34 of this Ordinance, being the information described in Exhibit D hereto. Financial statements to be provided shall be (1) prepared in accordance with the accounting principles described in Exhibit D hereto and (2) audited, if the City conunissions an audit of such statements and the audit is completed within the period during which they must be provided, If audited financial statements are not available at the time the financial information and operating data must be provided, then the City shall provide unaudited financial statements for the applicable fiscal year to each NRMSIR and any SID with the financial information and operating data and will file the annual audit report when and if the same becomes available. If the City changes its fiscal year, it will notify each NRMSIR and any SID of the change (and of the date of the new fiscal year end) prior to the next date by which the City otherwise would be required to provide financial information and operating data pursuant to this Section. The financial information and operating data to be provided pursuant to this Section may be set forth in full in one or more documents or may be included by specific reference to any document (including an official statement or other offering document, if it is available from the MSRB) that theretofore has been provided to each NRMSIR and any SID or filed with the SEC, (c) Material Event Notices. The City shall notify any SID and either each NRMSIR or the MSRB, in a timely manner, of any of 0310895 -56- the following events with respect to the Bonds, if such event is material within the meaning of the federal securities laws: 1. Principal and interest payment delinquencies; 2. Non-payment related defaults; 3. Unscheduled draws on debt service reserves reflecting financial difficulties; 4, Unscheduled draws on credit enhancements reflecting financial difficulties; 5, Substitution of credit or liquidity providers, or their failure to perform; 6. Adverse tax opinions or events affecting the tax- exempt status of the Bonds; 7. Modifications to rights of holders of the Bonds; 8. Bond calls; 9, Defeasances; 10. Release, substitution, or sale of property securing repayment of the Bonds; and 11. Rating changes. The City shall notify any SID and either each NRMSIR or the MSRB, in a timely manner, of any failure by the City to provide financial information or operating data in accordance with subsection (b) of this Section by the time required by such Section. (d) Limitations, Disclaimers, and Amendments. The City shall be obligated to observe and perform the covenants specified in this Section while, but only while, the City remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except that the City in any event will give the notice required by subsection (c) hereof of any Bond calls and defeasance that cause the City to be no longer such an "obligated person." The provisions of this Section are for the sole benefit of the Holders and beneficial owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The City undertakes to provide only the financial information, operating data, financial statements, and notices 0310895 -57- r- which it has expressly agreed to provide pursuant to this Section and does not hereby undertake to provide any other information that may be relevant or material to a complete presentation of the City's financial results, condition, or prospects or hereby undertake to update any information provided in accordance with this Section or otherwise, except as expressly provided herein. The City does not make any representation or warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at any future date, UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE, No default by the City in observing or performing its obligations under this Section shall constitute a breach of or default under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under federal and state securities laws. The provisions of this Section may be amended by the City from time to time to adapt to changed circumstances resulting from a change in legal requirements, a change in law, or a change in the identity, nature, status, or type of operations of the City, but only if (1) the provisions of this Section, as so amended, would have permitted an underwriter to purchase or sell Bonds in the primary offering of the Bonds in compliance with the Rule, taking into account any amendments or interpretations of the Rule to the date of such amendment, as well as such changed circumstances, and (2) either (a) the Holders of a majority in aggregate principal amount (or any greater amount required by any other provision of this Ordinance that authorizes such an amendment) of the Outstanding Bonds consent to such amendment or (b) a Person that is unaffiliated with the City (such as nationally recognized bond counsel) determines that such amendment will not materially impair the interests of the Holders and beneficial owners of the Bonds. The provisions of this Section may also be amended from time to time or repealed by the City if the SEC amends or repeals the applicable provisions of the Rule or a court of final jurisdiction determines that such provisions are invalid, but only if and to the extent that reservation of the City's right to do so would not prevent underwriters of the 0310895 -58- initial public offering of the Bonds from lawfully purchasing or selling Bonds in such offering. If the City so amends the provisions of this Section, it shall include with any amended financial information or operating data filed with each NRMSIR and SID pursuant to subsection (b) of this Section an explanation, in narrative form, of the reasons for the amendment and of the impact of any change in the type of financial information or operating data so provided. SECTION 48: Insurance. The Bonds have been sold with the principal of and interest thereon being insured by AMBAC Indemnity Corporation (hereinafter called "AMBAC") pursuant to a Municipal Bond Guaranty Insurance Policy. In accordance with the terms and conditions applicable to insurance provided by AMBAC, the City covenants and agrees that, in the event the principal and interest due on the Bonds shall be paid by AMBAC pursuant to the policy referred to this Section, the assignment and pledge of all funds and all covenants, agreements and other obligations of the City to the Holders shall continue to exist and AMBAC shall be subrogated to the rights of such Holders; and furthermore, the City covenants and agrees that: (a) Consent of AMBAC where Holder Consent Reauired. AMBAC shall be deemed to be the holder of the Bonds insured by AMBAC at all times for the purpose of the execution and delivery of any amendment, change or modification of this Ordinance or the initiation by Holders of any action to be taken under this Ordinance at the Holder's request, which under this Ordinance (or under such underlying documents requires the written approval or consent of or can be initiated by the Holders of a majority (50% percent) in aggregate principal amount of the Bonds at the time Outstanding, (b) Defeasance, In the event that the principal and redemption price, if applicable, and interest due on the Bonds shall be paid by AMBAC pursuant to the policy referred to in this Section, all covenants, agreements and other obligations of the City to the Holders shall continue to exist and AMBAC shall be subrogated to the rights of such Holders. (c) Notices to be Given to AMBAC. Municipal Bond Guaranty Insurance Policy is the City shall furnish to AMBAC: While the in effect, (1) as soon as practicable after the filing thereof, a copy of any financial statement of the City and a copy of any audit and annual report of the City; 0310395 -59- 0310895 (2) a copy of any notice to be given to the registered owners of the Bonds, including, without limitation, notice of any redemption or defeasance of Bonds, and any certificate rendered pursuant to this Ordinance relating to the security for the Bonds; and (3) such additional information as it may reasonably request. The City will permit AMBAC to discuss the affairs, finances and accounts of the City, or any information AMBAC may reasonably request regarding the security for the Bonds with appropriate officers of the City, The City will permit AMBAC to have access to and make copies of all books and records relating to the Bonds at any reasonable time, (d) Consent of AMBAC. Any provision of this Ordinance expressly recognizing or granting rights in or to AMBAC may not be amended in any manner which affects the rights of AMBAC hereunder without the prior written consent of AMBAC. Furthermore, anything in this Ordinance to the contrary notwithstanding, upon the occurrence and continuance of an event of defaul t, AMBAC shall be entitled to control and direct the enforcement of all rights and remedies granted to the Holders of the Bonds for the benefit of such Holders, (e) Concerninq the Bond Insurance Policv, As long as insurance for the Bonds shall be in full force and effect, the City agrees to comply with the following provisions: (1) if five (5) days prior to an interest payment date for the Bonds the City determines that there will be insufficient funds in the Interest and Sinking Fund to pay the principal of or interest on the Bonds on such interest payment date, the City shall so notify AMBAC. Such notice shall specify the amount of the anticipated deficiency, the Bonds to which such deficiency is applicable and whether such Bonds will be deficient as to principal or interest, or both. (2) to AMBAC available City shall, after giving notice provided in (1) above, make AMBAC and the United States the as to -60- 0310895 Trust Company of New York, as insurance trustee for AMBAC, the registration books of the City maintained by the Paying Agent/Registrar, and all records relating to the funds and accounts maintained under this Ordinance, (3) the City shall cause the paying Agent/Registrar to provide AMBAC and the United States Trust Company of New York with a list of registered owners of Bonds entitled to receive principal or interest payments from AMBAC under the terms of the Municipal Bond Insurance Policy, and shall cause the Paying Agent/Registrar to make arrangements with United States Trust Company of New York (i) to mail checks or drafts to the registered owners of Bonds entitled to receive full or partial interest payments from AMBAC, and (ii) to pay principal upon Bonds surrendered to United States Trust Company of New York by the registered owners of Bonds entitled to receive full or partial principal payments from AMBAC, (4) the City shall cause the Paying Agent/Registrar to notify, at the time it provides notice to AMBAC pursuant to (1) above, the registered owners of Bonds entitled to receive the payment of principal or interest thereon from AMBAC (i) as to the fact of such entitlement, (ii) that AMBAC will remit to them all or a part of the interest payments next coming due, (iii) that should they be entitled to receive full payment of principal from AMBAC they must tender their Bonds (along with a form of transfer of title thereto) for payment to United States Trust Company of New York, as insurance trustee for AMBAC, and not the Paying Agent/ Registrar, and (iv) that should they be entitled to receive partial payment of principal from AMBAC they must tender their Bonds for payment thereon first to the Paying Agent/Registrar, who shall note on such Bonds the portion of the principal paid by the Paying Agent/Registrar, and then, along with a form of transfer of title thereto, to AMBAC, which will then pay the unpaid portion of principal. -61- (5) AMBAC shall, to the extent it makes a payment of principal of or interest on Bonds, become subrogated to the rights of the recipients of such payments in accordance with the terms of the Municipal Bond Insurance Policy, and to evidence such subrogation (i) in the case of subrogation as to claims for past due interest, the City shall cause the Paying Agent/Registrar to note AMBAC's rights as subrogee on the registration books of the City maintained by the Paying Agent/Registrar upon receipt from AMBAC of proof of the payment of interest thereon to the registered owners of the Bonds, and (ii) in the case of subrogation as to claims for past due principal, the City shall cause the Paying Agent/Registrar to note AMBAC's rights as subrogee on the registration books of the City maintained by the Paying Agent/ Registrar upon surrender of the Bonds by the registered owners thereof together with proof of the payment of principal thereof. SECTION 49: Public Meetinq. It is officially found, determined, and declared that the meeting at which this Ordinance is adopted was open to the public and public notice of the time, place, and subject matter of the public business to be considered at such meeting, including this Ordinance, was given, all as required by V.T,C.A., Government Code, Chapter 551, as amended. SECTION 50: effect and be in reading and final Effective Date. force immediately passage, and it is This Ordinance from and after so ordained. shall take its second 0310895 -62- FIRST READING, March 5, 1996. SECOND AND FINAL READING, PASSED AND ADOPTED March 19, 1996. CITY OF COLLEYVILLE, /:;;( Mayor (City Seal) APPROVED AS TO FORM: ZZe~ 0310895 -63- EXHIBIT A PAYING AGENT/REGISTRAR AGREEMENT THIS AGREEMENT entered into as of March 19, 1996 (this "Agreement"), by and between the city of Colleyville, Texas (the "Issuer"), and The Bank of New York, New York, New York, a banking association duly organized and existing under the laws of the united States of America, (the "Bank"). RECITALS WHEREAS, the Issuer has duly authorized and provided for the execution and delivery of its "City of Colleyville, Texas, Waterworks and Sewer System Refunding and Improvement Revenue Bonds, Series 1996" (the "Securities"), dated March 15, 1996, such Securities to be delivered to the initial purchasers on or about April 23, 1996; 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. Aooointment. The Issuer hereby appoints the Bank to serve as Paying Agent with respect to the Securities, and, as Paying Agent for the Securities, the Bank shall be responsible for paying on behalf of the Issuer the principal, premium (if any) , and interest on the Securities as the same become due and payable to the registered owners thereof; all in accordance with this Agreement and the "Bond Resolution" (hereinafter defined). The Issuer hereby appoints the Bank as Registrar with respect to the Securities and, as Registrar for the Securities, the Bank shall keep and maintain for and on behalf of the Issuer books and records as to the ownership of said Securities and with respect to the transfer and exchange thereof as provided herein and in the "Bond Resolution". The Bank hereby accepts its appointment, and agrees to serve as the Paying Agent and Registrar for the Securities. section 1.02. Comoensation. 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. 0311175 In addition, the Issuer agrees to reimburse the Bank upon its request for all reasonable expenses, disbursements and advances incurred or made by the Bank in accordance with any of the provisions hereof (including the reasonable compensation and the expenses and disbursements of its agents and counsel). ARTICLE TWO DEFINITIONS section 2.01. Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: "Acceleration Date" on any Security means the date on and after which the principal or any or all installments of interest, or both, are due and payable on any Security which has become accelerated pursuant to the terms of the Security. "Bank Office" means the offices of the Bank located in Houston, Texas at the address appearing in section 3.01 hereof. The Bank will notify the Issuer in writing of any change in location of the Bank Office. "Bond Resolution" means the resolution, order, or ordinance of the governing body of the Issuer pursuant to which the Securities are issued, certified by the Secretary or any other officer of the Issuer and delivered to the Bank. "Fiscal Year" means the fiscal year of the Issuer, ending September 30th. "Holder" and "Security Holder" each means the Person in whose name a Security is registered in the Security Register. "Issuer Request" and "Issuer Order" means a written request or order signed in the name of the Issuer by the Mayor, City Manager, Director of Finance, or city Secretary, anyone or more of said officials, and delivered to the Bank. "Legal Holiday" means a day on which the Bank is required or authorized to be closed. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision of a government. "Predecessor Securities" of any particular Security means every previous security evidencing all or a portion of the same obligation as that evidenced by such particular Security (and, for the purposes of this definition, any mutilated, 0311175 -2- EXHIBIT A 1- lost, destroyed, or stolen Security for which a replacement Security has been registered and delivered in lieu thereof pursuant to section 4.06 hereof and the Resolution). "Redemption Date" when used with respect to any Security to be redeemed means the date fixed for such redemption pursuant to the terms of the Bond Resolution. "Responsible Officer" when used with respect to the Bank means the Chairman or Vice-Chairman of the Board of Directors, the Chairman or Vice-Chairman of the Executive Committee of the Board of Directors, the President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer, or any other officer of the Bank customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Security Register" means a register maintained by the Bank on behalf of the Issuer providing for the registration and transfers of Securities. "Stated Maturity" means the date specified in the Bond Resolution the principal of a Security is scheduled to be due and payable. section 2.02. Other Definitions. The terms "Bank," "Issuer," and "Securities (Security)" have the meanings assigned to them in the recital paragraphs of this Agreement. The term "paying Agent/Registrar" refers to the Bank in the performance of the duties and functions of this Agreement. ARTICLE THREE PAYING AGENT section 3.01. Duties of pavina Aaent. As Paying Agent, the Bank shall, provided adequate collected funds have been provided to it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer the principal of each Security at its Stated Maturity, Redemption Date, or Acceleration Date, to the Holder upon surrender of the Security to the Bank at the following address: The Bank of New York Information services 1301 Fannin Street, suite 2215 Houston, Texas 77002 0311175 -3- EXHIBIT A As Paying Agent, the Bank shall, provided adequate collected funds have been provided to it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer the interest on each Security when due, by computing the amount of interest to be paid each Holder and making payment thereof to the Holders of the Securities (or their Predecessor Securities) on the Record Date. All payments of principal and/or interest on the Securities to the registered owners shall be accomplished (1) by the issuance of checks, payable to the registered owners, drawn on the fiduciary account provided in section 5.05 hereof, sent by united States mail, first class, postage prepaid, to the address appearing on the Security Register or (2) by such other method, acceptable to the Bank, requested in writing by the Holder at the Holder's risk and expense. As Paying Agent, the Bank shall, provided adequate collected funds have been provided to it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer the principal of each Security at its Stated Maturity, Redemption Date, or Acceleration Date, to the Holder upon surrender of the Security to the Bank at the Bank Office. As Paying Agent, the Bank shall, provided adequate collected funds have been provided to it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer the interest on each Security when due, by computing the amount of interest to be paid each Holder and making payment thereof to the Holders of the Securities (or their Predecessor Securities) on the Record Date. All payments of principal and/or interest on the Securities to the registered owners shall be accomplished (1) by the issuance of checks, payable to the registered owners, drawn on the fiduciary account provided in section 5.05 hereof, sent by united States mail, first class, postage prepaid, to the address appearing on the Security Register or (2) by such other method, acceptable to the Bank, requested in writing by the Holder at the Holder's risk and expense. section 3.02. PaYment Dates. The Issuer hereby instructs the Bank to pay the principal of and interest on the Securities at the dates specified in the Bond Resolution. ARTICLE FOUR REGISTRAR section 4.01. Security Reqister - Transfers and Exchanqes. The Bank agrees to keep and maintain for and on behalf of the Issuer at the Bank Office books and records (herein sometimes referred to as the "Security Register") for recording the names and addresses of the Holders of the securities, the transfer, exchange and replacement of the Securities and the payment of the principal of and interest on the securities to the Holders and containing 031l17~ -4- EXHIBIT I\ such other information as may be reasonably required by the Issuer and subject to such reasonable regulations as the Issuer and Bank may prescribe. All transfers, exchanges and replacement of Securities shall be noted in the Security Register. The Bank represents and warrants its office in Dallas, Texas will at all times have immediate access to the Security Register by electronic or other means and will be capable at all times of producing a hard copy of the Security Register at its Dallas office for use by the Issuer. All transfers, exchanges and replacement of Securities shall be noted in the Security Register. Every Security surrendered for transfer or exchange shall be duly endorsed or be accompanied by a written instrument of transfer, the signature on which has been guaranteed by an officer of a federal or state bank or a member of the National Association of Securities Dealers, in form satisfactory to the Bank, duly executed by the Holder thereof or his agent duly authorized in writing. The Bank may request any supporting documentation it feels necessary to effect a re-registration, transfer or exchange of the Securities. To the extent possible and under reasonable circumstances, the Bank agrees that, in relation to an exchange or transfer of Securities, the exchange or transfer by the Holders thereof will be completed and new Securities delivered to the Holder or the assignee of the Holder in not more than three (3) business days after the receipt of the Securities to be cancelled in an exchange or transfer and the written instrument of transfer or request for exchange duly executed by the Holder, or his duly authorized agent, in form and manner satisfactory to the Paying Agent/Registrar. section 4.02. certificates. The Issuer shall provide an adequate inventory of printed Securities to facilitate transfers or exchanges thereof. The Bank covenants that the inventory of printed Securities will be kept in safekeeping pending their use and reasonable care will be exercised by the Bank in maintaining such Securities in safekeeping, which shall be not less than the care maintained by the Bank for debt securities of other governments or corporations for which it serves as registrar, or that is maintained for its own securities. section 4.03. Form of Security Reqister. The Bank, as Registrar, will maintain the Security Register relating to the registration, payment, transfer and exchange of the Securities in accordance with the Bank's general practices and procedures in effect from time to time. The Bank shall not be obligated to maintain such Security Register in any form other than those which the Bank has currently available and currently utilizes at the time. 0311175 -5- EXHIBIT A 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 Securitv Holders. The Bank will provide the Issuer at any time requested by the Issuer, upon payment of the required fee, a copy of the information contained in the security Register. The Issuer may also inspect the information contained in the Security Register at any time the Bank is customarily open for business, provided that reasonable time is allowed the Bank to provide an up-to-date listing or to convert the information into written form. The Bank will not release or disclose the contents of the Security Register to any person other than to, or at the written request of, an authorized officer or employee of the Issuer, except upon receipt of a court order or as otherwise required by law. Upon receipt of a court order and prior to the release or disclosure of the contents of the Security Register, the Bank will notify the Issuer so that the Issuer may contest the court order or such release or disclosure of the contents of the Security Register. section 4.05. Return of Cancelled certificates. The Bank will, at such reasonable intervals as it determines, surrender to the Issuer, Securities in lieu of which or in exchange for which other Securities have been issued, or which haye been paid. Section 4.06. Mutilated. Destroyed. Lost or Stolen Securi- ties. The Issuer hereby instructs the Bank, subject to the provisions of section 29 of the Bond Resolution, to deliver and issue Securities in exchange for or in lieu of mutilated, destroyed, lost, or stolen Securities as long as the same does not result in an over issuance. In case any Security shall be mutilated, or destroyed, lost or stolen, the Bank may execute and deliver a replacement Security of like form and tenor, and in the same denomination and bearing a number not contemporaneously outstanding, in exchange and substitution for such mutilated Security, or in lieu of and in substitution for such destroyed, lost or stolen Security, only upon the approval of the Issuer and after (i) the filing by the Holder thereof with the Bank of evidence satisfactory to the Bank of the destruction, loss or theft of such security, and of the authenticity of the ownership thereof and (ii) the furnishing to the Bank of indemnification in an amount satisfactory to hold the Issuer and the Bank harmless. All expenses and charges associated with such indemnity and with the preparation, execution and delivery of a replacement Security shall be borne by the Holder of the Security mutilated, or destroyed, lost or stolen. . -6- EXHIBIT A 0311115 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) '!he Bank may conclusively rely, as to the truth of the statements and correctness of the opinions expressed therein, on certificates or opinions furnished to the Bank. (b) The Bank shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Bank was negligent in ascertaining the pertinent facts. (c) No provisions of this Agreement shall require the Bank to expend or risk its own funds or otherwise incur any financial liability for performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risks or liability is not assured to it. (d) The Bank may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, security, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties. without limiting the generality of the foregoing statement, the Bank need not examine the ownership of any Securities, but is protected in acting upon receipt of Securities containing an endorsement or instruction of transfer or power of transfer which appears on its face to be signed by the Holder or an agent of the Holder. The Bank shall not be bound to make any investigation into the facts or matters stated in a resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, security, or other paper or document supplied by Issuer. 0311175 -7- EXHIBIT A (e) The Bank may consult with counsel, and the written advice of such counselor any opinion of counsel shall be full and complete authorization and protection with respect to any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon. (f) The Bank may exercise any of the powers hereunder and perform any duties hereunder either directly or by or through agents or attorneys of the Bank. section 5.03 . Recitals of Issuer. The recitals contained herein with respect to the Issuer and in the Securities shall be taken as the statements of the Issuer, and the Bank assumes no responsibility for their correctness. The Bank shall in no event be liable to the Issuer, any Holder or Holders of any Security, or any other Person for any amount due on any Security from its own funds. section 5.04. May Hold Securities. The Bank, in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with the Issuer with the same rights it would have if it were not the Paying Agent/Registrar, or any other agent. section 5.05. Moneys Held bY Bank - Fiduciarv Account! Collateralization. A fiduciary account shall at all times be kept and maintained by the Bank for the receipt, safekeeping and disbursement of moneys received from the Issuer hereunder for the payment of the Securities, and money deposited to the credit of such account until paid to the Holders of the Securities shall be continuously collateralized by securities or obligations which qualify and are eligible under both the laws of the State of Texas and the laws of the united States of America to secure and be pledged as collateral for fiduciary accounts to the extent such money is not insured by the Federal Deposit Insurance corporation. Payments made from such trust account shall be made by check drawn on such trust account unless the owner of such Securities shall, at its own expense and risk, request such other medium of payment. The Bank shall be under no liability for interest on any money received by it hereunder. Subject to the applicable unclaimed property laws of the State of Texas, any money deposited with the Bank for the payment of the principal, premium (if any), or interest on any Security and remaining unclaimed for four years after final maturity of the Security has become due and payable will be paid by the Bank to the Issuer, and the Holder of such Security shall thereafter look only to the Issuer for payment thereof, and all liability of the Bank with respect to such moneys shall thereupon cease. 0311175 EXHlBIT A 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 bad faith on its part, arising out of or in connection with its acceptance or administration of its duties hereunder, including the cost and expense against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement. section 5.07. 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 either the Bank Office or the administrative offices of the Issuer is located, and agree that service of process by certified or registered mail, return receipt requested, to the address referred to in section 6.03 of this Agreement shall constitute adequate service. The Issuer and the Bank further agree that the Bank has the right to file a Bill of Interpleader in any court of competent jurisdiction to determine the rights of any Person claiming any interest herein. section 5.08. DT Services. It is hereby represented and warranted that, in the event the Securities are otherwise qualified and accepted for "Depository Trust Company" services or equivalent depository trust services by other organizations, the Bank has the capability and, to the extent within its control, will comply with the "Operational Arrangements", effective December 12, 1994, which establishes requirements for securities to be eligible for such type depository trust services, including, but not limited to, requirements for the timeliness of payments and funds availability, transfer turnaround time, and notification of redemptions and calls. ARTICLE SIX MISCELLANEOUS PROVISIONS section 6.01. Amendment. This Agreement may be amended only by an agreement in writing signed by both of the parties hereto. section 6.02. Assiqnment. This Agreement may not be assigned by either party without the prior written consent of the other. Section 6.03. Notices. Any request, demand, authorization, direction, notice, consent, waiver, or other document provided or 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 page 11. 0311175 -9- EXHIBIT A section 6.04. Effect of Headinqs. headings herein are for convenience only construction hereof. The Article and Section and shall not affect the section 6.05. Successors and Assiqns. agreements herein by the Issuer shall bind assigns, whether so expressed or not. All covenants its successors and and section 6.06. Severabili ty. In case any provision herein shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 6.07. Benefits of Aqreement. Nothing herein, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any benefit or any legal or equitable right, remedy, or claim hereunder. section 6.08. Entire Aqreement. This Agreement and the Bond Resolution constitute the entire agreement between the parties hereto relative to the Bank acting as Paying Agent/Registrar and if any conflict exists between this Agreement and the Bond Resolution, the Bond Resolution shall govern. section 6.09. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Agreement. section 6.10. Termination. This Agreement will terminate (i) on the date of final payment of the principal of and interest on the Securities to the Holders thereof or (ii) may be earlier terminated by either party upon sixty (60) days written notice; provided, however, an early termination of this Agreement by either party shall not be effective until (a) a successor Paying Agent/Registrar has been appointed by the Issuer and such appointment accepted and (b) notice given to the Holders of the Securities of the appointment of a successor Paying Agent/Registrar. Furthermore, the Bank and Issuer mutually agree that the effective date of an early termination of this Agreement shall not occur at any time which would disrupt, delay or otherwise adversely affect the payment of the Securities. Upon an early termination of this Agreement, the Bank agrees to promptly transfer and deliver the Security Register (or a copy thereof), together with other pertinent books and records relating to the Securities, to the successor Paying Agent/Registrar designated and appointed by the Issuer. 0311175 -10- EXHIBIT A The provisions of section 1. 02 and of Article Five shall survive and remain in full force and effect following the termination of this Agreement. section 6.11. Governinq Law. This Agreement shall be construed in accordance with and governed by the laws of the state of Texas. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. THE BANK OF NEW YORK, New York, New York BY Title: [SEAL] Attest: Address: 10161 centurion Parkway 2nd Floor Jacksonville, FL 32256 Title: CITY OF COLLEYVILLE, TEXAS BY Mayor (CITY SEAL) Attest: Address: 5400 Bransford Road Colleyville, Texas 76034 City Secretary 0311175 -11- EXHIBIT A EXHIBIT C SPECIAL ESCROW AGREEMENT THE STATE OF TEXAS COUNTY OF TARRANT s s s THIS SPECIAL ESCROW AGREEMENT (the "Agreement"), made and entered into as of March 19, 1996, by and between the City of Colleyville, Texas, a duly incorporated municipal corporation in Tarrant County, Texas (the "City") acting by and through the Mayor and city Secretary, and The Bank of New York, New York, New York, a state banking corporation organized and existing under the laws of the State of New York, or its successors or assigns hereunder (the "Bank"), WIT N E SSE T H : WHEREAS, the City has duly issued certain obligations now outstanding in the aggregate amount $1,500,000 (hereinafter collectively referred to as the "Refunded Obligations") and more particularly described as follows: (1) City of Colleyville, Texas, Waterworks and Sewer System Revenue Bonds, Series 1987, dated March 1, 1987, maturing on January 1 in each of the years 1999 through 2007, and aggregating in principal amount $ 990,000 (2) City of Colleyville, Texas, Waterworks and Sewer System Revenue Bonds, Series 1989, dated August 1, 1989, maturing on January 1 in each of the years 2001 through 2010, and aggregating in principal amount $ 510,000 AND WHEREAS, in accordance with the provisions of Article 7l7k, V.A.T.C.S., as amended (the "Act"), the City is authorized to sell refunding bonds in an amount sufficient to provide for the payment of obligations to be refunded, deposit the proceeds of such refunding bonds with any place of payment for the obligations being refunded and enter into an escrow or similar agreement with such place of payment for the safekeeping, investment, reinvestment, administration and disposition of such deposit, upon such terms and conditions as the parties may agree, provided such deposits may be invested only in direct obligations of the United States of America, including obligations the principal of and interest on are unconditionally guaranteed by the united States of America, (hereinafter called the "Federal Securities") that mature and/or bear interest payable at such times and in such amounts as will be sufficient to provide for the scheduled payment of Refunded Obligations; and 0311168 WHEREAS, the Refunded Obligations are scheduled to mature, or be redeemed, and interest thereon is payable on the dates and in the manner set forth in Exhibit A attached hereto and incorporated herein by reference as a part of this Agreement for all purposes; and WHEREAS, the City on the 19th day of March, 1996, pursuant to an ordinance (the "Bond Ordinance") finally passed and adopted by the City Council, authorized the issuance of bonds known as "City of Colleyville, Texas, Waterworks and Sewer System Refunding and Improvement Revenue Bonds, Series 1996" (the "Bonds"), and such Bonds are being issued in part to refund, discharge and make final payment of the principal of and interest on the Refunded Obligations; and WHEREAS, upon the delivery of the Bonds, the proceeds of sale, together with other available funds of the City, are to be deposited with the Bank and used in part to purchase the Federal Securities listed and identified in Exhibit B attached hereto and incorporated by reference as a part of this Agreement for all purposes; and WHEREAS, the Federal Securities shall be held and deposited to the credit of the "Escrow Fund" to be established and maintained by the Bank in accordance with this Agreement; and WHEREAS, the Federal Securities, together with the beginning cash balance in the Escrow Fund, shall mature and the interest thereon shall be payable at such times to insure the existence of monies sufficient to pay the principal amount of the Refunded Obligations and the accrued interest thereon, as the same shall become due in accordance with the terms of the ordinances authorizing the issuance of the Refunded Obligations and as set forth in Exhibit A attached hereto; and WHEREAS, the city has completed all arrangements for the purchase of the Federal Securities listed in Exhibit B and the deposit and credit of the same to the Escrow Fund as provided herein; and WHEREAS, the Bank is a state banking corporation organized and existing under the laws of the State of New York, possessing trust powers and is fully qualified and empowered to enter into this Agreement; and WHEREAS, in section 35 of the Bond Ordinance, the City Council duly approved and authorized the execution of this Agreement; and WHEREAS, the city and the Escrow Agent, as the case may be, shall take all action necessary to call, pay, redeem and retire 0311168 -2- EXHIBIT r, said Refunded Obligations in accordance with the provisions thereof, including, without limitation, all actions required by the ordinances authorizing the Refunded Obligations, the Act, the Bond Ordinance and this Agreement; NOW, THEREFORE, in consideration of the mutual agreements herein contained, and to secure the payment of the principal of and the interest on the Refunded Obligations as the same shall become due, the City and the Bank hereby mutually undertake, promise and agree as follows: SECTION 1: Receipt of Refunded Bond Ordinances. Receipt of copies of the ordinances authorizing the issuance of the Refunded Obligations and the Bond Ordinance are hereby acknowledged by the Bank. Reference herein to or citation herein of any provision of said documents shall be deemed an incorporation of such provision as a part hereof in the same manner and with the same effect as if it were fully set forth herein. SECTION 2: Escrow Fund Creation/Fundinq. There is hereby created by the city with the Bank a special segregated and irrevocable trust fund designated "SPECIAL 1996 CITY OF COLLEYVILLE, TEXAS, REVENUE REFUNDING BOND ESCROW FUND" (hereinafter called the "Escrow Fund") for the benefit of the holders of the Refunded Obligations, and, immediately following the delivery of the Bonds, the City agrees and covenants to cause to be deposited with the Bank the following amounts: $1,583,089.75 for the purchase of Federal Securities identified in Exhibit B to be held for the account of the Escrow Fund $ 24.33 for deposit in the Escrow Fund as a beginning cash balance; and The Bank hereby accepts the Escrow Fund and further agrees to receive said moneys, apply the same as set forth herein, and to hold the cash and Federal Securities deposited and credited to the Escrow Fund for application and disbursement for the purposes and in the manner provided in this Agreement. SECTION 3: Escrow Fund Suff iciency Warrantv. The city hereby represents that the cash and Federal Securities, together with the interest to be earned thereon, deposited to the credit of the Escrow Fund will be sufficient to pay the principal of and premium and interest on the Refunded Obligations as the same shall become due and payable, and such Refunded Obligations, and the interest thereon, are to mature or be redeemed and shall be paid at the times and in the amounts set forth and identified in Exhibit A attached hereto. 0311168 -3- EXHIBIT C FURTHERMORE, the Bank acknowledges receipt of a copy of the resolution providing for the redemption of (i) the Series 1987 Refunded Obligations on January 1, 1998 at the redemption price of par plus accrued interest and (ii) the Series 1989 Refunded Obligations on January 1, 2000 at the redemption price of par plus accrued interest; all in accordance with the provisions of the notice requirements applicable to said Refunded Obligations and the notice requirements contained in the respective ordinances authorizing such Refunded Obligations. The Bank agrees to cause a notice of redemption pertaining to the Refunded Obligations to be sent to the registered owners thereof appearing on the registration books at least thirty (30) days prior to the respective redemption date therefor. SECTION 4: Pledqe of Escrow. The Bank agrees that all cash and Federal Securities, together with any income or interest earned thereon, held in the Escrow Fund shall be and is hereby irrevocably pledged to the payment of the principal of and interest on the Refunded Obligations which will mature and become due on and after the date of this Agreement, and such funds initially deposited and to be received from maturing principal and interest on the Federal Securities in the Escrow Fund shall be applied solely in accordance with the provisions of this Agreement. SECTION 5: Escrow Insufficiencv - City Warranty to Cure. If, for any reason, the funds on hand in the Escrow Fund shall be insufficient to make the payments set forth in Exhibit A attached hereto, as the same becomes due and payable, the City shall make timely deposits to the Escrow Fund, from lawfully available funds, of additional funds in the amounts required to make such payments. Notice of any such insufficiency shall be immediately given by the Bank to the City by the fastest means possible, but the Bank shall in no manner be responsible for the city's failure to make such deposits. SECTION 6: Escrow Fund Securities! Seqreqation. The Bank shall hold said Federal Securities and moneys in the Escrow Fund at all times as a special and separate trust fund for the benefit of the holders of the Refunded Obligations, wholly segregated from other moneys and securities on deposit with the Bank; shall never commingle said Federal Securities and moneys with other moneys or securities of the Bank; and shall hold and dispose of the assets therein only as set forth herein. Nothing herein contained shall be construed as requiring the Bank to keep the identical moneys, or any part thereof, in said Escrow Fund, if it is impractical, but moneys of an equal amount, except to the extent such are represented by the Federal Securities, shall always be maintained on deposit in the Escrow Fund by the Bank, as trustee; and a 0311168 -4- EXHIBIT C special account evidencing such facts shall at all times be maintained on the books of the Bank. SECTION 7: Escrow Fund Collections/Pavrnents. The Bank shall from time to time collect and receive the principal of and interest on the Federal Securities as they respectively mature and become due and credit the same to the Escrow Fund. On or before each principal and/or interest payment date or redemption date, as the case may be, for the Refunded Obligations shown in Exhibit A attached hereto, the Bank, without further direction from anyone, including the City, shall cause to be withdrawn from the Escrow Fund the amount required to pay the accrued interest on the Refunded Obligations due and payable on said payment date and the principal of the Refunded Obligations due and payable on said payment date or redemption date, as the case may be, and the amount withdrawn from the Escrow Fund shall be immediately transmitted and deposited with the paying agent for the Refunded Obligations to be paid with such amount. The paying agent for the Refunded Obligations is the Bank. If any Refunded Obligation thereon shall not be presented for payment when the principal thereof or interest thereon shall have become due, and if cash shall at such times be held by the Bank in trust for that purpose sufficient and available to pay the principal of such Refunded Obligation and interest thereon it shall be the duty of the Bank to hold said cash without liability to the holder of such Refunded Obligation for interest thereon after such maturity or redemption date, in trust for the benefit of the holder of such Refunded Obligation, who shall thereafter be restricted exclusively to said cash for any claim of whatever nature on his part on or with respect to said Refunded Obligation, including for any claim for the payment thereof and interest thereon. All cash required by the provisions hereof to be set aside or held in trust for the payment of the Refunded Obligations, including interest thereon, shall be applied to and used solely for the payment of the Refunded Obligations and interest thereon with respect to which such cash has been so set aside in trust. Subject to the provisions of the last sentence of section 25 hereof, cash held by the Bank in trust for the payment and discharge of any of the Refunded Obligations and interest thereon which remains unclaimed for a period of four (4) years after the stated maturity date or redemption date of such Refunded Obligations shall be returned to the city. Notwithstanding the above and foregoing, any remittance of funds from the Bank to the City shall be subject to any applicable unclaimed property laws of the State of Texas. SECTION 8: Disposal of Refunded Obliqations. All Refunded Obligations cancelled on account of payment by the Bank shall be 0311168 -5- EXHIBIT C disposed of or otherwise destroyed by the Bank, and an appropriate certificate of destruction furnished the city. SECTION 9: Escrow Fund Encumbrance. The escrow created hereby shall be irrevocable and the holders of the Refunded Obligations shall have an express lien on all moneys and Federal Securities in the Escrow Fund until paid out, used and applied in accordance with this Agreement. Unless disbursed in payment of the Refunded Obligations, all funds and the Federal Securities received by the Bank for the account of the city hereunder shall be and remain the property of the Escrow Fund and the City and the owners of the Refunded Obligations shall be entitled to a preferred claim and shall have a first lien upon such funds and Federal Securities enjoyed by a trust beneficiary. The funds and Federal Securities received by the Bank under this Agreement shall not be considered as a banking deposit by the City and the Bank and the City shall have no right or title with respect thereto, except as otherwise provided herein. Such funds and Federal Securities shall not be subject to checks or drafts drawn by the city. SECTION 10: Absence of Bank Claim/Lien on Escrow Fund. The Bank shall have no lien whatsoever upon any of the moneys or Federal Securities in the Escrow Fund for payment of services rendered hereunder, services rendered as paying agent/registrar for the Refunded obligations, or for any costs or expenses incurred hereunder and reimbursable from the city. SECTION 11: Substitution of Investments/Reinvestments. (a) The Bank shall be authorized to accept initially and temporarily cash and/or substituted Federal Securities pending the delivery of the Federal Securities identified in the Exhibit B attached hereto, or shall be authorized to redeem the Federal Securities and reinvest the proceeds thereof, together with other moneys held in the Escrow Fund in noncallable direct obligations of the united States of America provided such early redemption and reinvestment of proceeds does not change the repayment schedule of the Refunded Obligations appearing in Exhibit A and the Bank receives the following: (1) an opinion by an independent certified public accountant to the effect that (i) the initial and/or temporary substitution of cash and/or securities for one or more of the Federal Securities identified in Exhibit B pending the receipt and delivery thereof to the Escrow Agent or (ii) the redemption of one or more of the Federal Securities and the reinvestment of such funds in one or more substituted securities (which shall be noncallable direct obligations of the United States 0311168 -6- EXHIBIT C of America), together with the interest thereon and other available moneys then held in the Escrow Fund, will, in either case, be sufficient, without reinvestment, to pay, as the same become due in accordance with Exhibit A, the principal of, and interest on, the Refunded Obligations which have not previously been paid, and (2) wi th respect to an early redemption of Federal Securities and the reinvestment of the proceeds thereof, an unqualified opinion of nationally recognized municipal bond counsel to the effect that (a) such investment will not cause interest on the Bonds or Refunded Obligations to be included in the gross income i;or federal income tax purposes, under the Code and related regulations as in effect on the date of such investment, or otherwise make the interest on the Bonds or the Refunded Obligations subject to Federal income taxation and (b) such reinvestment complies with the Constitution and laws of the State of Texas and with all relevant documents relating to the issuance of the Refunded Obligations and the Bonds. (b) If on the date and in the amount shown in Exhibit C attached hereto there will be cash in the Escrow Fund, the Bank and the City agree at least fifteen (15) days prior to such date, to subscribe for the purchase of united States Treasury Securities - State and Local Government Series (SLGS) bearing zero interest (0%) and on such date, in the amount and scheduled to mature as provided in Exhibit C and subscription forms prepared therefor as may be then required by the united states Department of the Treasury; provided that the then existing rules and regulations and policy of united States Department of the Treasury permit and authorize such investments. Should the policy, rules and regulations of the United States Department of Treasury not permit or authorize the purchase of such SLGS at such time or times, such cash balance or balances shall remain uninvested and held in trust for the benefit of the holders of the Refunded Obligations and used for the payment of the Refunded obligations on the dates and in the amount such moneys would have been expended had such SLGS been acquired and matured. SECTION 12: Restriction on Escrow Fund Investments - Reinvestment. Except as provided in section 11 hereof, moneys in the Escrow Fund will be invested only in the Federal Securities listed in Exhibit B and neither the city nor the Bank shall reinvest any moneys deposited in the Escrow Fund except as specifically provided by this Agreement. 0311168 -7- EXHIBIT C SECTION 13: Excess Funds. If at any time through redemption or cancellation of the Refunded Obligations there exists or will exist excesses of interest on or maturing principal of the Federal Securities in excess of the amounts necessary hereunder for the Refunded obligations, the Bank may transfer such excess amounts to or on the order of the City, provided that the City delivers to the Bank the following: (1) an opinion by an independent certified public accountant that after the transfer of such excess, the principal amount of securities in the Escrow Fund, together with the interest thereon, and other available monies then held in the Escrow Fund, will be sufficient to pay, as the same become due and without reinvestment, in accordance with Exhibit A, the principal of, and interest on, the Refunded Obligations which have not previously been paid, and (2) an unqualified opinion of nationally recognized municipal bond counsel to the effect that (a) such transfer will not cause interest on the Bonds or the Refunded Obligations to be included in gross income for federal income tax purposes, under the Code and related regulations as in effect on the date of such transfer, or otherwise make the interest on the Bonds or the Refunded Obligations subject to Federal income taxation, and (b) such transfer complies with the Constitution and laws of the State of Texas and with all relevant documents relating to the issuance of the Refunded Obligations or the Bonds. SECTION 14: Collateralization. The Bank shall continuously secure the monies in the Escrow Fund not invested in Federal Securities by a pledge of direct obligations of the united States of America, in the par or face amount at least equal to the principal amount of said uninvested monies to the extent such money is not insured by the Federal Deposit Insurance Corporation. SECTION 15: Absence of Bank's Liabilitv for Investments. The Bank shall not be liable or responsible for any loss resulting from any investment made in the Federal Securities or substitute securities as provided in section 11 hereof. SECTION 16: Bank's Compensation - Escrow Administration/ Settlement of pavinq Aqent's charqes. The city agrees to pay the Bank for the performance of services hereunder and as reimbursement for anticipated expenses to be incurred hereunder the amount of $2,600.00 and, except for reimbursement of costs and expenses incurred by the Bank pursuant to sections 3, 11 and 19 0311168 -8- EXHIBIT C hereof, the Bank hereby agrees said amount is full and complete payment for the administration of this Agreement. The City also agrees to deposit with the Bank on the effective date of this Agreement, the sum of $2,375.00 and the Bank acknowledges and agrees that such amount is and represents the total amount of compensation due the Bank for services rendered as paying agent for the Refunded Obligations. The Bank hereby agrees to pay, assume and be fully responsible for any additional charges that it may incur in the performance of its duties and responsibilities as paying agent for the Refunded Obligations. The City acknowledges and agrees that the above amount deposited with the Escrow Agent to cover paying agents' charges and expenses does not include amounts which shall become due and payable for services rendered as registrar and transfer agent for fully registered Refunded Obligations, and the City agrees to pay directly to each "registrar" for the Refunded obligations all reasonable costs, expenses and charges incurred in connection with the maintenance of the registration books and records and the transfer of such fully registered obligations as and when such costs, expenses and charges are incurred and against written invoices, statements or bills submitted therefor. SECTION 17: Escrow Aqent's Duties / Responsibilities/ Liabilitv. The Bank shall not be responsible for any recital herein, except with respect to its organization and its powers and authority. As to the existence or nonexistence of any fact relating to the City or as to the sufficiency or validity of any instrument, paper or proceedings relating to the City, the Bank shall be entitled to rely upon a certificate signed on behalf of the City by its City Manager or Mayor and/or City Secretary of the City as sufficient evidence of the facts therein contained. The Bank may accept a certificate of the City Secretary under the City's seal, to the effect that a resolution or other instrument in the form therein set forth has been adopted by the City Council of the City, as conclusive evidence that such resolution or other instrument has been duly adopted and is in full force and effect. The duties and obligations of the Bank shall be determined solely by the express provisions of this Agreement and the Bank shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Bank. In the absence of bad faith on the part of the Bank, the Bank may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any 0311168 -9- EXHIBIT C certificate or opinion furnished to the Bank, conforming to the requirements of this Agreement; but notwithstanding any provision of this Agreement to the contrary, in the case of any such certificate or opinion or any evidence which by any provision hereof is specifically required to be furnished to the Bank, the Bank shall be under a duty to examine the same to determine whether it conforms to the requirements of this Agreement. The Bank shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Bank unless it shall be proved that the Bank was negligent in ascertaining or acting upon the pertinent facts. The Bank shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders of not less than a majority in aggregate principal amount of all said Refunded Obligations at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Bank not in conflict with the intent and purpose of this Agreement. For the purposes of determining whether the holders of the required principal amount of said Refunded Obligations have concurred in any such direction, Refunded Obligations owned by any obligor upon the Refunded Obligations, or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with such obligor, shall be disregarded, except that for the purposes of determining whether the Bank shall be protected in relying on any such direction only Refunded obligations which the Bank knows are so owned shall be so disregarded. The term "Responsible Officers" of the Bank, as used in this Agreement, shall mean and include the Chairman of the Board of Directors, the President, any vice President and any Second Vice President, the Secretary and any Assistant Secretary, the Treasurer and any Assistant Treasurer, and every other officer and assistant officer of the Bank customarily performing functions similar to those performed by the persons who at the time shall be officers, respectively, or to whom any corporate trust matter is referred, because of his knowledge of and familiarity with a particular subject; and the term "Responsible Officer" of the Bank, as used in this Agreement, shall mean and include any of said officers or persons. SECTION 18: Limitation Re: Bank's Duties/Responsibilities/ Liabilities to Third Parties. The Bank shall not be responsible or liable to any person in any manner whatever for the sufficiency, correctness, genuineness, effectiveness, or validity of this Agreement with respect to the City, or for the identity or authority of any person making or executing this Agreement for and on behalf of the city. The Bank is authorized by the city to rely 0311168 -10- EXHIBIT C upon the representations of the City with respect to this Agreement and the deposits made pursuant hereto and as to the city's right and power to execute and deliver this Agreement, and the Bank shall not be liable in any manner as a result of such reliance. The duty of the Bank hereunder shall only be to the city and the holders of the Refunded Obligations. Neither the City nor the Bank shall assign or attempt to assign or transfer any interest hereunder or any portion of any such interest. Any such assignment or attempted assignment shall be in direct conflict with this Agreement and be without effect. SECTION 19: Interpleader. In the event conflicting demands or notices are made upon the Bank growing out of or relating to this Agreement or the Bank in good faith is in doubt as to what action should be taken hereunder, the Bank shall have the right at its election to: (a) withhold and stop all further proceedings in, and performance of, this Agreement with respect to the issue in question and of all instructions received hereunder in regard to such issue; and (b) File a suit in interpleader and obtain an order from a court of appropriate jurisdiction requiring all persons involved to interplead and litigate in such court their several claims and rights among themselves. In the event the Bank becomes involved in litigation in connection with this Section, the city, to the extent permitted by law, agrees to indemnify and save the Bank harmless from all loss, cost, damages, expenses and attorney fees suffered or incurred by the Bank as a result thereof. The obligations of the Bank under this Agreement shall be performable at the corporate office of the Bank in the city of Jacksonville, Florida. The Bank may advise with legal counsel in the event of any dispute or question regarding the construction of any of the provisions hereof or its duties hereunder, and in the absence of negligence or bad faith on the part of the Bank, no liability shall be incurred by the Bank for any action taken pursuant to this section and the Bank shall be fully protected in acting in accordance with the opinion and instructions of legal counsel that is knowledgeable and has expertise in the field of law addressed in any such legal opinion or with respect to the instructions given. SECTION 20: Accountinq - Annual Report. Promptly after September 30th of each year, commencing with the year 1996, while the Escrow Fund is maintained under this Agreement, the Bank shall forward to the city, to the attention of the Director of Finance, 0311168 -11- EXHIBIT C or other designated official of the City, a statement in detail of the Federal Securities and monies held, and the current income and maturities thereof, and the withdrawals of money from the Escrow Fund for the preceding 12 month period ending September 30th of each year. SECTION 21: Notices. Any notice, authorization, request or demand required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when mailed by registered or certified mail, postage prepaid addressed as follows: CITY OF cOLLEYVILLE, TEXAS 5400 Bransford Road colleyville, Texas 76034 Attention: Director of Finance THE BANK OF NEW YORK 10161 centurion Parkway, 2nd Floor Jacksonville, Florida 32256 Attention: Corporate Trust Department The united States Post Office registered or certified mail receipt showing delivery of the aforesaid shall be conclusive evidence of the date and fact of delivery. Any party hereto may change the address to which notices are to be delivered by giving to the other parties not less than ten (10) days prior notice thereof. SECTION 22: Performance Date. Whenever under the terms of this Agreement the performance date of any provision hereof, including the date of maturity of interest on or principal of the Refunded Obligations, shall be a Sunday or a legal holiday or a day on which the Bank is authorized by law to close, then the performance thereof, including the payment of principal of and interest on the Refunded Obligations, need not be made on such date but may be performed or paid, as the case may be, on the next succeeding business day of the Bank with the same force and effect as if made on the date of performance or payment and with respect to a payment, no interest shall accrue for the period after such date. SECTION 23: Warrantv of Parties Re: Power to Execute and Deliver Escrow Aqreement. The City covenants that it will faithfully perform at all times any and all covenants, 0311168 -12- tXHIBIT C undertakings, stipulations and provisions contained in this Agreement, in any and every said Refunded Obligation as executed, authenticated and delivered and in all proceedings pertaining thereto as said Refunded obligations shall have been modified as provided in this Agreement. The City covenants that it is duly authorized under the Constitution and laws of the state of Texas to execute and deliver this Agreement, that all actions on its part for the payment of said Refunded obligations as provided herein and the execution and delivery of this Agreement have been duly and effectively taken and that said Refunded Obligations and coupons in the hands of the holders and owners thereof are and will be valid and enforceable obligations of the City according to the import thereof as provided in this Agreement. SECTION 24: Severabilitv. If anyone or more of the covenants or agreements provided in this Agreement on the part of the parties to be performed should be determined by a court of competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed and construed to be severable from the remaining covenants and agreements herein contained and shall in no way affect the validity of the remaining provisions of this Agreement. In the event any covenant or agreement contained in this Agreement is declared to be severable from the other provisions of this Agreement, written notice of such event shall immediately be given to each national rating service (Moody's Investors Service, Standard & Poor's Corporation or Fitch Investors Service) which has rated the Refunded Obligations on the basis of this Agreement. SECTION 25: Termination. This Agreement shall terminate when the Refunded Obligations, including interest due thereon, have been paid and discharged in accordance with the provisions of this Agreement. If any Refunded obligations are not presented for payment when due and payable, the nonpayment thereof shall not prevent the termination of this Agreement. Funds for the payment of any nonpresented Refunded Obligations and accrued interest thereon shall upon termination of this Agreement be held by the Bank for such purpose in accordance with section 7 hereof. Any moneys or Federal Securities held in the Escrow Fund at termination and not needed for the payment of the principal of or interest on any of the Refunded Obligations shall be paid or transferred to the City. SECTION 26: Time of the Essence. Time shall be of the essence in the performance of obligations from time to time imposed upon the Bank by this Agreement. SECTION 27: Successors/Assiqns. (a) Should the Bank not be able to legally serve or perform the duties and obligations under this Agreement, or should the Bank be declared to be 0311168 -13- EXHIBIT C insolvent or closed for any reason by federal or state regulatory authorities or a court of competent jurisdiction, the city, upon being notified or discovering the Bank's inability or disqualification to serve hereunder, shall forthwith appoint a successor to replace the Bank, and upon being notified of such appointment, the Bank shall (i) transfer all funds and securities held hereunder, together with all books, records and accounts relating to the Escrow Fund and the Refunded Obligations, to such successor and (ii) assign all rights, duties and obligations under this Agreement to such successor. If the City should fail to appoint such a successor within ninety (90) days from the date the ci ty discovers, or is notified of, the event or circumstance causing the Bank's inability or disqualification to serve hereunder, the Bank, or a bondholder of the Refunded Obligations, may apply to a court of competent jurisdiction to appoint a successor or assigns of the Bank and such court, upon determining the Bank is unable to continue to serve, shall appoint a successor to serve under this Agreement and the amount of compensation, if any, to be paid to such successor for the remainder of the term of this Agreement for services to be rendered both for administering the Escrow Fund and for paying agent duties and responsibilities for the Refunded obligations. (b) Furthermore, the Bank may resign and be discharged from performing its duties and responsibilities under this Agreement upon notifying the city in writing of its intention to resign and requesting the City to appoint a successor. No such resignation shall take effect until a successor has been appointed by the city and such successor has accepted such appointment and agreed to perform all duties and obligations hereunder for a total compensation equal to the unearned proportional amount paid the Bank under section 16 hereof for the administration of this Agreement and the unearned proportional amount of the paying agents fees for the Refunded Obligations due the Bank. Any successor to the Bank shall be a bank, trust company or other financial institution that is duly qualified under applicable law (the Act or other appropriate statute) to serve as escrow agent hereunder and authorized and empowered to perform the duties and obligations contemplated by this Agreement and organized and doing business under the laws of the united states or the state of Texas, having its principal office and place of business in the State of Texas, having a combined capital and surplus of at least $5,000,000 and be subject to the supervision or examination by Federal or State authority. Any successor or assigns to the Bank shall execute, acknowledge and deliver to the City and the Bank, or its successor or assigns, an instrument accepting such appointment hereunder, and the Bank shall execute and deliver an instrument transferring 0311168 -14- EXHIBIT C to such successor, subject to the terms of this Agreement, all the rights, powers and trusts created and established and to be performed under this Agreement. Upon the request of any such successor Bank, the City shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Bank all such rights, powers and duties. The term "Bank" as used herein shall be the Bank and its legal assigns and successor hereunder. SECTION 28: Escrow Aqreement - Amendment/Modification. This Agreement shall be binding upon the City and the Bank and their respective successors and legal representatives and shall inure solely to the benefit of the holders of the Refunded Obligations, the City, the Bank and their respective successors and legal representatives. Furthermore, no alteration, amendment or modification of any provision of this Agreement shall (1) alter the firm financial arrangements made for the payment of the Refunded Obligations or (2) be effective unless (i) prior written consent of such alteration, amendment or modification shall have been obtained from the holders of all Refunded Obligations outstanding at the time of such alteration, amendment or modification and (ii) such alteration, amendment or modification is in writing and signed by the parties hereto; provided, however, the city and the Bank may, without the consent of the holders of the Refunded Obligations, amend or modify the terms and provisions of this Agreement to cure in a manner not adverse to the holders of the Refunded Obligations any ambiguity, formal defect or omission in this Agreement. If the parties hereto agree to any amendment or modification to this Agreement, prior written notice of such amendment or proposed modification, together with the legal documents amending or modifying this Agreement, shall be furnished to each national rating service (Standard & Poor's Corporation, Moody's Investors Service or Fitch Investors Service) which has rated the Refunded Obligations on the basis of this Agreement, prior to such amendment or modification being executed. SECTION 29: Effect of Headinqs. The section headings herein are for convenience only and shall not affect the construction hereof. SECTION 30: Executed Counterparts. This Agreement may be executed in several counterparts, all or any of which shall be regarded for all purposes as one original and shall constitute and be but one and the same instrument. This Agreement shall be governed by the laws of the State of Texas and shall be effective as of the date of the delivery of the Bonds. 0311168 -15- EXHIBIT C IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by their duly authorized officers and their corporate seals to be hereunto affixed and attested as of the date first above written. CITY OF cOLLEYVILLE, TEXAS ATTEST: Mayor City Secretary (City Seal) THE BANK OF NEW YORK, New York, New York, as Escrow Agent Banking Officer/Agent ATTEST: Authorized Signer (Bank Seal) 0311168 -16- EXHIBIT C Exhibit D to Ordinance DESCRIPTION OF ANNUAL FINANCIAL INFORMATION The following information is referred to in section 47 of this Ordinance. Annual Financial Statements and Operatinq Data The financial information and operating data with respect to the City to be provided annually in accordance with such section are as specified (and included in the Appendix or under the headings of the Official statement referred to) below: 1. The financial statements of the City appended to the Official Statement as Appendix B, but for the most recently concluded fiscal year. 2. The information under Tables I through 10. Accountinq principles The accounting principles referred to in such section are the generally accepted accounting principles as applicable to governmental units as prescribed by The Government Accounting Standards Board. 0310300