HomeMy WebLinkAboutOrdinances (O-94-936)-03/15/1994
ORDINANCE NO. 0- 9i/-93{?
AN ORDINANCE authorizing the issuance of "CITY OF
COLLEYVILLE, TEXAS, GENERAL OBLIGATION REFUNDING AND
IMPROVEMENT BONDS, SERIES 1994"; specifying the terms and
features of said bonds; levying a continuing direct annual
ad valorem tax for the payment of said bonds; and resolving
other matters incident and related to the issuance, sale,
payment and delivery of said bonds, including the approval
and execution of a Paying Agent/Registrar Agreement, a Bond
Purchase Contract and Special Escrow Agreement and the
approval and distribution of an Official Statement
pertaining thereto; and providing an effective date.
WHEREAS, the City Council of the City of Colleyville.l____Texas
(the "city") has heretofore issued, sold, and delivered, and there
is currently outstanding obligations totalling in principal amount
$1,595,000 of the following issues or series (hereinafter called
collectively called the "Refunded Obligations Bonds"), to wit:
(1) City of Colleyville, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series 1989,
dated August 1, 1989, maturing on February 1 in
each of the years 2001 through 2012, and
aggregating in principal amount $ 925,000
(2) City of Colleyville, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of obligation, Series 1991,
dated January 1, 1991, maturing on February 1 in
each of the years 2001 through 2013, and
aggregating in principal amount $ 670,000
AND WHEREAS, pursuant to the provisions of Article 717k,
V.A.T.C.S., as amended, the City Council is authorized to issue
refunding bonds and deposit the proceeds of sale thereof directly
with the place of payment for the Refunded obligations, and such
deposit, when made in accordance with said statute, shall
constitute the making of firm banking and financial arrangements
for the discharge and final payment of the Refunded Obligations;
and
WHEREAS, the ci ty Council hereby finds and determines that
general obligation refunding bonds should be issued at this time to
refund the Refunded Obligations, and such refunding will result i~
the City saving approximately $94,459.91 in debt service payments'
on such indebtedness and further provide present value savings of
approximately $49,812.40; and
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WHEREAS, in addition to the bonds to be issued for refunding
purposes, the City Council of the City of Colleyville, Texas hereby
finds and determines that $2,670,000 in principal amount of general
obligation bonds approved and authorized to be issued at an
election held on August 10, 1991 should be issued and sold at this
time; a schedule of the unissued general obligation bonds approved
at said election identifying the purposes and the principal amounts
authorized therefor, amounts heretofore issued, amounts being
issued pursuant to this Ordinance and amounts remaining to be
issued being as follows:
Principal Amounts Amounts
Amount Heretofore Being Amounts
Purpose Authorized Issued Issued Remainina
Street Improvements $8,110,000 $3,645,000 $2,670,000 $1,795,000
Park Improvements 3,135,000 1,135,000 -0- $2,Q~O,000
Public Safety 1,155,000 225,000 -0- 930,000
Municipal Library/ 1,100,000 600,000 -0- 500,000
Community Center
AND WHEREAS, the City Council hereby reserves and retains the
right to issue the balance of unissued bonds approved at said
election in one or more installments when, in the judgment of the
council, funds are needed to accomplish the purposes for which
such bonds were voted; now, therefore,
WHEREAS, the City Council hereby finds and determines that
the general obligation bonds to be issued for refunding purposes
and the general obligation bonds voted at the aforesaid election
for street improvements should be issued and sold at this time as
one series or issue; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
COLLEYVILLE, TEXAS:
SECTION 1: Authorization-Desianation-Princioal Amount-
Purpose - Date. General obligation bonds of the City shall be and
. are hereby authorized to be issued in the aggregate principal
amount of $4,515,000 to be designated and bear the title "CITY OF
COLLEYVILLE, TEXAS, GENERAL OBLIGATION REFUNDING AND IMPROVEMENT
BONDS, SERIES 1994" (hereinafter referred to as the "Bonds"), for
the purpose of providing funds for the discharge and final payment
of certain outstanding obligations of the City (identified in the
preamble hereof and referred to as the "Refunded Obligations") and
the payment of costs of issuance and to provide funds in the
amount of $2,670,000 for permanent public improvements, to wit:
street improvements, including drainage necessary and incidental
thereto, for subdivisions within the City, including Chelsea Park, ~
Oaks and Briarwood, Oak Crest Hills, Colleyville Estates,
Woodbriar and Quailcrest and for Heritage Avenue; all in
accordance with authority conferred by and in conformity with the
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Constitution and laws of the state of Texas, including Vernon's
Ann. Civ. st., Articles 1175 and 717k, as amended.
SECTION 2: Fullv Reaistered Obliaations - Bond Date -
Authorized Denominations - Stated Maturities - Interest Rates.
The Bonds shall be issued as fully registered obligations only,
shall be dated March 1, 1994 (the "Issue Date"), shall be in
denominations of $5,000 or any integral multiple (within a Stated
Maturity) thereof, and shall become due and payable on February 1
in each of the years and in principal amounts (the "Stated
Maturities") and bear interest at the rate(s) per annum in
accordance with the following schedule:
YEAR OF PRINCIPAL INTEREST
MATURITY INSTALLMENTS RATE
1996 $ 115,000 --3.- 60%
1997 120,000 3.80%
1998 125,000 4.00%
1999 130,000 4.20%
2000 135,000 4.30%
2001 220,000 4.50%
2002 235,000 4.60%
2003 240,000 4.80%
2004 255,000 4.90%
2005 270,000 5.00%
2006 280,000 5.10%
2007 300,000 5.20%
2008 320,000 5.30%
2009 330,000 5.40%
2010 355,000 5.50%
2011 375,000 5.60%
2012 405,000 5.60%
2013 305,000 5.50%
The Bonds shall bear interest on the unpaid principal amounts
from the Issue Date at the rate(s) per annum shown above in this
section (calculated on the basis of a 360-day year of twelve
30-day months). Interest on the Bonds shall be payable on
February 1 and August 1 in each year, commencing February 1, 1995.
SECTION 3: Terms of Payment - pavina Aaent/Reaistrar. 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
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for the payment of public and private debts, and shall be without
exchange or collection charges to the Holders.
The selection and appointment of Texas Commerce Bank National
Association to serve as Paying Agent/Registrar for the Bonds is
hereby approved and confirmed. Books and records relating to the
registration, payment, exchange and transfer of the Bonds (the
"Security Register") shall at all times be kept and maintained on
behalf of the City by the Paying Agent/Registrar, all as provided
herein, in accordance with the terms and provisions of a "Paying
Agent/Registrar Agreement", substantially in the form attached
hereto as Exhibit A, and such reasonable rules and regulations as
the Paying Agent/Registrar and the City may prescribe. The Mayor
and City Secretary are hereby authorized to execute and deliver
such Agreement in connection with the delivery of the Bonds. The
City covenants to maintain and provide a Paying Agent/Regiatrar at
all times until the Bonds are paid and discharged, and any
successor Paying Agent/Registrar shall be a bank, trust company,
financial institution or other entity qualified and authorized to
serve in such capacity and perform the duties and services of
Paying Agent/Registrar. Upon any change in the Paying
Agent/Registrar for the Bonds, the City agrees to promptly cause
a written notice thereof to be sent to each Holder by united
States Mail, first class postage prepaid, which notice shall also
give the address of the new Paying Agent/Registrar.
Principal of and premium, if any, on the Bonds shall be
payable at the Stated Maturities or redemption, only upon
presentation and surrender of the Bonds to the Paying
Agent/Registrar at its principal offices in Dallas, Texas (the
"Designated Payment/Transfer Office") Interest on the Bonds shall
be paid to the Holders whose name appears in the Security Register
at the close of business on the Record Date (the 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 when banking institutions in the
City where the Designated Payment/Transfer Office of the paying
Agent/Registrar is located are authorized by law or executive
order to close, then the date for such payment shall be the next
succeeding day which is not such a Saturday, Sunday, legal
holiday, or day when banking institutions are authorized to close;
and payment on such date shall have the same force and effect as
if made on the original date payment was due.
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In the event of a nonpayment of interest on a scheduled
payment date, and for thirty (30) days thereafter, a new record
date for such interest payment (a "Special Record Date") will be
established by the Paying Agent/ Registrar, if and when funds for
the payment of such interest have been received from the city.
Notice of the Special Record Date and of the scheduled payment
date of the past due interest (which shall be 15 days after the
Special Record Date) shall be sent at least five (5) business days
prior to the Special Record Date by united States Mail, first
class postage prepaid, to the address of each Holder appearing on
the Securi ty Register at the close of business on the last
business day next preceding the date of mailing of such notice.
SECTION 4: Redemption. (a) optional Redemption. The Bonds
having Stated Maturities on and after February 1, 2005, 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 February 1,2004 or on any date
thereafter at the redemption price of par plus accrued interest to
the date of redemption.
(b) Exercise of Redemption option. At least forty-five (45)
days prior to a redemption date for the Bonds (unless a shorter
notification period shall be satisfactory to the Paying
Agent/Registrar), the City shall notify the Paying Agent/Registrar
of the decision to redeem Bonds, the principal amount of each
Stated Maturity to be redeemed, and the date of redemption
therefor. The decision of the City to exercise the right to
redeem Bonds shall be entered in the minutes of the governing body
of the city.
(c) Selection of Bonds for Redemption. If less than all
Outstanding Bonds of the same Stated Maturity are to be redeemed
on a redemption date, the Paying Agent/Registrar shall treat such
Bonds as representing the number of Bonds Outstanding which is
obtained by dividing the principal amount of such Bonds by $5,000
and shall select the Bonds to be redeemed wi thin 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.
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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 as hereinabove provided, such &Qnd (or
the principal amount thereof to be redeemed) shall become due and
payable and interest thereon shall cease to accrue from and after
the redemption date therefor; provided moneys sufficient for the
payment of such Bond (or of the principal amount thereof to be
redeemed) at the then applicable redemption price are held for the
purpose of such payment by the Paying Agent/Registrar.
SECTION 5: Reqistration - Transfer - Exchanqe of Bonds-
Predecessor Bonds. The Paying Agent/Registrar shall obtain,
record, and maintain in the Security Register the name and address
of each and every owner of the Bonds issued under and pursuant to
the provisions of this Ordinance, or if appropriate, the nominee
thereof. Any Bond may be transferred or exchanged for Bonds of
other authorized denominations by the Holder, in person or by his
duly authorized agent, upon surrender of such Bond to the Paying
Agent/Registrar at the Designated Payment/Transfer Office for
cancellation, accompanied by a written instrument of transfer or
request for exchange duly executed by the Holder or by his duly
authorized agent, in form satisfactory to the Paying
Agent/Registrar.
Upon surrender of any Bond for transfer at the Designated
Payment/Transfer Office of the Paying Agent/ Registrar, one or
more new Bonds shall be registered and issued to the assignee or
transferee of the previous Holder; such Bonds to be in authorized
denominations, of like Stated Maturity and of a like aggregate
principal amount as the Bond or Bonds surrendered for transfer.
At the option of the Holder, Bonds may be exchanged for other
Bonds of authorized denominations and having the same Stated
Maturity, bearing the same rate of interest and of like aggregate
principal amount as the Bonds surrendered for exchange, upon
surrender of the Bonds to be exchanged at the Designated
Payment/Transfer Office of the Paying Agent/ Registrar. Whenever
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any Bonds are surrendered for exchange, the Paying Agent/Registrar
shall register and deliver new Bonds to the Holder requesting the
exchange.
All Bonds issued in any transfer or exchange of Bonds shall
be delivered to the Holders at the Designated Payment/Transfer
Office of the Paying Agent/Registrar or sent by United states
Mail, first class, postage prepaid to the Holders, and, upon the
registration and delivery thereof, the same shall be the valid
obligations of the City, evidencing the same obligation to pay,
and entitled to the same benefits under this Ordinance, as the
Bonds surrendered in such transfer or exchange.
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._~aying
Agent/Registrar shall require payment by the Holder requesting
such transfer or exchange of any tax or other governmental charges
required to be paid with respect to such transfer or exchange.
Bonds cancelled by reason of an exchange or transfer pursuant
to the provisions hereof are hereby defined to be "Predecessor
Bonds," evidencing all or a portion, as the case may be, of the
same obligation to pay evidenced by the new Bond or Bonds
registered and delivered in the exchange or transfer therefor.
Additionally, the term "Predecessor Bonds" shall include any
mutilated, lost, destroyed, or stolen Bond for which a replacement
Bond has been issued, registered and delivered in lieu thereof
pursuant to the provisions of Section 11 hereof and such new
replacement Bond shall be deemed to evidence the same obligation
as the mutilated, lost, destroyed, or stolen Bond.
Neither the City nor the Paying Agent/ Registrar shall be
required to issue or transfer to an assignee of a Holder any Bond
called for redemption, in whole or in part, within 45 days of the
date fixed for the redemption of such Bond; provided, however,
such limitation on transferability shall not be applicable to an
exchange by the Holder of the unredeemed balance of a Bond called
for redemption in part.
SECTION 6: Book-Entrv OnlY Transfers and Transactions.
Notwithstanding the provisions contained in Sections 3, 4 and 5
hereof relating to the payment, and transfer/exchange of the
Bonds, the City hereby approves and authorizes the use of
"Book-Entry Only" securities clearance, settlement and transfer
system provided by The Depository Trust Company CDTC), 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
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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 OTC and OTC Participants.
In the event OTC 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 wi th the
provisions of Sections 3, 4 and 5 hereof.
SECTION 7: Execution - Reaistration. The Bonds shall be
executed on behalf of the ci ty by the Mayor under its seal
reproduced or impressed thereon and countersigned by the City
Secretary. The signature of said officers on the Bonds may be
manual or facsimile. Bonds bearing the manual or facsimile
signatures of individuals who are or were the proper officers of
the City on the Issue Date shall be deemed to be duly executed on
behalf of the Ci ty , notwithstanding that such indi viduals 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 90, .
manually executed by an authorized officer, employee or
representative of the Paying Agent/Registrar, and either such
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certificate duly signed upon any Bond shall be conclusive
evidence, and the only evidence, that such Bond has been duly
certified, registered and delivered.
SECTION 8: Initial Bond(s). The Bonds herein authorized
shall be initially issued either (i) as a single fully registered
bond in the total principal amount noted in section 1 with
principal installments to become due and payable as provided in
section 2 hereof and numbered T-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-l and upward (hereinafter called the "Initial
Bond (s) ") and, in ei ther 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 ap'p-~oval,
certified and registered by the Office of the Comptroller of
Public Accounts of the State of Texas and delivered to the initial
purchaser(s). Any time after the delivery of the Initial Bond(s) ,
the Paying Agent/ Registrar, pursuant to written instructions from
the initial purchaser(s), or the designee thereof, shall cancel
the Initial Bond(s) delivered hereunder and exchange therefor
definitive Bonds of authorized denominations, Stated Maturities,
principal amounts and bearing applicable interest rates for
transfer and delivery to the Holders named at the addresses
identified therefor; all pursuant to and in accordance with such
written instructions from the initial purchaser(s), or the
designee thereof, and such other information and documentation as
the Paying Agent/Registrar may reasonably require.
SECTION 9: Forms. A. Forms Generallv. The Bonds, the
Registration Certificate of the Comptroller of Public Accounts of
the State of Texas, the Registration Certificate of Paying
Agent/Registrar, and the form of Assignment to be printed on each
of the Bonds, shall be substantially in the forms set forth in
this Section with such appropriate insertions, omissions,
substitutions, and other variations as are permitted or required
by this Ordinance and may have such letters, numbers, or other
marks of identification (including identifying numbers and letters
of the Committee on Uniform Securities Identification Procedures
of the American Bankers Association) and such legends and
endorsements (including insurance legends on insured Bonds and any
reproduction of an opinion of counsel) thereon as may,
consistently herewith, be established by the city or determined by
the officers executing such Bonds as evidenced by their execution.
Any portion of the text of any Bonds may be set forth on the
reverse thereof, with an appropriate reference thereto on the face..
of the Bond.
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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 REGISTERED
NO. $
GENERAL
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF COLLEYVILLE, TEXAS,
OBLIGATION REFUNDING AND IMPROVEMENT
SERIES 1994
BOND,
Issue Date:
March 1, 1994
Interest Rate: Stated Maturity:
aJSIP 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, acknowledges
itself indebted to and hereby promises to pay to the order of the
Registered Owner named above, or the registered assigns thereof,
on the Stated Maturity date specified above the Principal Amount
hereinabove stated (or so much thereof as shall not have been paid
upon prior redemption), and to pay interest on the unpaid
principal amount hereof from the Issue Date at the per annum rate
of interest specified above computed on the basis of a 360-day
year of twelve 3 a-day months; such interest being payable on
February 1 and August 1 in each year, commencing February 1, 1995.
Principal of this Bond is payable at its Stated Maturity or
redemption to the registered owner hereof, upon presentation and
surrender, at the Designated Payment/Transfer Office of the paying
Agent/Registrar executing the registration certificate appearing
hereon, or its successor. Interest is payable to the registered
owner of this Bond (or one or more Predecessor Bonds, as defined
in the Ordinance hereinafter referenced) whose name appears on the
"Security Register" maintained by the Paying Agent/Registrar at
the close of business on the "Record Date", which is the 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
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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 $4,515,000 (herein referred
to as the "Bonds") for the purpose of providing funds for the
discharge and final payment of certain outstanding Obligations of
the City and to pay costs of issuance, and to provide funds in the
amount of $2,670,000 for permanent public improvements, to wit:
street improvements, including drainage necessary and incidental
thereto, for subdivisions within the City, including Chelsea Park,
Oaks and Briarwood, Oak Crest Hills, Colleyville Estates,
Woodbriar and Quailcrest and for Heritage Avenue; under and in
strict conformity with the Constitution and laws of the state of
Texas, including Vernon's Ann. civ. st., Articles 1175 and 717k,
as amended, and pursuant to an Ordinance adopted by the City
Council of the City (herein referred to as the "Ordinance").
The Bonds maturing on and after February 1, 2005, 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 February 1, 2004, or on any
date thereafter, at the redemption price of par, together with
accrued interest to the date of redemption and upon 30 days prior
written notice being sent by United states Mail, first class
postage prepaid, to the registered owners of the Bonds to be
redeemed, and subject to the terms and provisions relating thereto
contained in the Ordinance. If this Bond (or any portion of the
principal sum hereof) shall have been duly called for redemption
and notice of such redemption duly given, then upon such
redemption date this Bond (or the portion of the principal sum
hereof to be redeemed) shall become due and payable, and interest
thereon shall cease to accrue from and after the redemption date
therefor, provided moneys for the payment of the redemption price
and the interest on the principal amount to be redeemed to the
date of redemption are held for the purpose of such payment by the
Paying Agent/Registrar.
In the event of a partial redemption of the principal amount
of this Bond, payment of the redemption price of such principal
amount shall be made to the registered owner only upon
presentation and surrender of this Bond to the Designated,
Payment/Transfer Office of the Paying Agent/Registrar, and there.
shall be issued to the registered owner hereof, without charge, a
new Bond or Bonds of like maturity and interest rate in any
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authorized denominations provided by the Ordinance for the then
unredeemed balance of the principal sum hereof. If this Bond is
selected for redemption, in whole or in part, the City and the
Paying Agent/Registrar shall not be required to transfer this Bond
to an assignee of the registered owner within 45 days of the
redemption date therefor; provided, however, such limitation on
transferability shall not be applicable to an exchange by the
registered owner of the unredeemed balance hereof in the event of
its redemption in part.
The Bonds are payable from the proceeds of an ad valorem tax
levied, within the limitations prescribed by law, upon all taxable
property in the city. Reference is hereby made to the Ordinance,
a copy of which is on file in the Designated Payment/Transfer
Office of the Paying Agent/Registrar, and to all of the provisions
of which the owner or holder of this Bond by the acceptanc~_Aereof
hereby assents, for definitions of terms; the description of and
the nature and extent of the tax levied for the payment of the
Bonds; the terms and conditions relating to the transfer or
exchange of this Bond; the conditions upon which the Ordinance may
be amended or supplemented with or without the consent of the
Holders; the rights, duties, and obligations of the City and the
Paying Agent/Registrar; the terms and provisions upon which this
Bond may be discharged at or prior to its maturity, and deemed to
be no longer Outstanding thereunder; and for other terms and
provisions contained therein. Capitalized terms used herein have
the meanings assigned in the Ordinance.
This Bond, subject to certain limitations contained in the
Ordinance, may be transferred on the Security Register only upon
its presentation and surrender at the Designated Payment/Transfer
Office of the Paying Agent/Registrar, with the Assignment hereon
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Paying Agent/Registrar duly
executed by, the registered owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or
more new fully registered Bonds of the same Stated Maturity, of
authorized denominations, bearing the same rate of interest, and
of the same aggregate principal amount will be issued by the
Paying Agent/Registrar to the designated transferee or
transferees.
The City and the Paying Agent/Registrar, and any agent of
either, shall treat the registered owner whose name appears on the
Security Register (i) on the Record Date as the owner entitled to
payment of interest hereon, (ii) on the date of surrender of this
Bond as the owner entitled to payment of principal hereof at its ~
Stated Maturity, or its redemption, in whole or in part, and (iii)
on any other date as the owner for all other purposes, and neither
the City nor the Paying Agent/ Registrar, or any agent of either,
0146210
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~------
'"'~-"-""'-'---~"""""'-~-'-"--'-'~-"-
shall be affected by notice to the contrary. In the event of
nonpayment of interest on a scheduled payment date and for thirty
(30) days thereafter, a new record date for such interest payment
(a "Special Record Date") will be established by the Paying
Agent/Registrar, if and when funds for the payment of such
interest have been received from the city. Notice of the Special
Record Date and of the scheduled payment date of the past due
interest (which shall be 15 days after the Special Record Date)
shall be sent at least five (5) business days prior to the Special
Record Date by united States Mail, first class postage prepaid, to
the address of each Holder appearing on the Security Register at
the close of business on the last business day next preceding the
date of mailing of such notice.
It is hereby certified, recited, represented and declared
that the City is a body corporate and political subdivis~~~ duly
organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the issuance of
the Bonds is duly authorized by law; that all acts, conditions and
things required to exist and be done precedent to and in the
issuance of the Bonds to render the same lawful and valid
obligations of the City have been properly done, have happened and
have been performed in regular and due time, form and manner as
required by the Constitution and laws of the State of Texas, and
the Ordinance; that the Bonds do not exceed any Constitutional or
statutory limitation; and that due provision has been made for the
payment of the principal of and interest on the Bonds by the levy
of a tax as aforestated. In case any provision in this Bond shall
be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The terms and provisions of this
Bond and the Ordinance shall be construed in accordance with and
shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the City Council of the City has caused
this Bond to be duly executed under the official seal of the City
as of the Issue Date.
CITY OF COLLEYVILLE, TEXAS
COUNTERSIGNED:
Mayor
City Secretary
(SEAL)
0146210
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C. *Form of Reqistration certificate of Comptroller of
Public Accounts to appear on Initial Bond(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
(
(
(
(
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
D. Form of Certificate of Payinq Aqent/Reqistrar to appear
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 principal offices of the paying Agent/Registrar in
Dallas, Texas, is the Designated Payment/Transfer Office for this
Bond.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION,
as Paying Agent/Registrar
Registration Date:
By
'.
Authorized Signature
0146210
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,..
----_.~---,---,.._---_..._. . -_.._"'-'_.,-_.."^,~.,<"-,,..,._~,,
E. Form of Assiqnment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and
transfers unto (Print or typewrite name, address, and zip code of
transferee: ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Social Security or other identifying number: .................
.................) the within Bond and all rights thereunder, and
hereby irrevocably constitutes and appoints ...................
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the
premises.
DATED:
. . . . . . . . . . . . . . . . . . . .. ..............................
. . . . . . . . . . . . . . . . . . . . . . . . .
NOTICE: The signature on this
assignment must correspond with
the name of the registered owner
as it appears on the face of the
within Bond in every particular.
Signature guaranteed:
F.
The Initial Bond(s) shall be in the form set forth in
~araqraph B of this Section. exce~t that the form of the
sinqle fullv reqistered Initial Bond shall be modified
as follows:
(i)
immediately under the name of the bond the headings
"Interest Rate .. and "Stated Maturity
" shall both be omitted;
( ii)
Paragraph one shall read as follows:
Registered Owner:
Principal Amount:
Dollars
The City of Colleyville (hereinafter referred to as the
"City"), a body corporate and municipal corporation in the County
of Tarrant, State of Texas, for value received, acknowledges
itself indebted to and hereby promises to pay to the order of the
Registered Owner named above, or the registered assigns thereof,
the Principal Amount hereinabove stated on February 1 in each of
the years and in principal installments in accordance with the
following schedule:
'.
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--.-.
.._.~,.._--,._..,"--"._~-
YEAR OF
MATURITY
PRINCIPAL
INSTALLMENTS
INTEREST
RATE
(Information to be inserted from
schedule in Section 2 hereof).
(or so much principal thereof as shall not have been prepaid prior
to maturity) and to pay interest on the unpaid Principal Amount
hereof from the Issue Date at the per annum rates of interest
specified above computed on the basis of a 360-day year of twelve
3 a-day months; such interest being payable on February 1 and
August 1 in each year, commencing February 1, 1995. Principal
installments of this Bond are payable in the year of maturity to
the registered owner hereof by Texas Commerce Bank National
Association (the "Paying Agent/Registrar"), upon presentation and
surrender, at its principal offices in Dallas, Tex~~_ (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 the
registered owner recorded in the Security Register or by such
other method, acceptable to the Paying Agent/Registrar, requested
by, and at the risk and expense of, the registered owner. All
paYments of principal of, premium, if any, and interest on this
Bond shall be without exchange or collection charges to the owner
hereof and in any coin or currency of the United States of America
which at the time of payment is legal tender for the paYment of
public and private debts.
SECTION 10: Levv of Taxes. To provide for the payment of
the "Debt Service Requirements" of the Bonds, being (i) the
interest on the Bonds and (ii) a sinking fund for their redemption
at maturity, or a sinking fund of 2% (whichever amount is the
greater), there is hereby levied, and there shall be annually
assessed and collected in due time, form, and manner, a tax on all
taxable property in the City, within the limitations prescribed by
law, and such tax hereby levied on each one hundred dollars'
valuation of taxable property in the City for the Debt Service
Requirements of the Bonds shall be at a rate from year to year as
will be ample and sufficient to provide funds each year to pay the
principal of and interest on said Bonds while outstanding; full
allowance being made for delinquencies and costs of collection;
separate books and records relating to the receipt and
disbursement of taxes levied, assessed and collected for and on,
account of the Bonds shall be kept and maintained by the City at .
all times while the Bonds are Outstanding, and the taxes collected
for the payment of the Debt Service Requirements on the Bonds
0146210
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shall be deposited to the credit of a "Special 1994 Bond Account"
(the "Interest and Sinking Fund") maintained on the records of the
City and deposited in a special fund maintained at an official
depository of the City's funds; and such tax hereby levied, and to
be assessed and collected annually, is hereby pledged to the
paYment of the Bonds.
Proper officers of the City are hereby authorized and
directed to cause to be transferred to the Paying Agent/ Registrar
for the Bonds, from funds on deposit in the Interest and Sinking
Fund, amounts sufficient to fully pay and discharge promptly each
installment of interest and principal of the Bonds as the same
accrues or matures; such transfers of funds to be made in such
manner as will cause collected funds to be deposited with the
Paying Agent/Registrar on or before each principal and interest
paYment date for the Bonds.
SECTION 11: Mutilated - Destroyed - Lost and Stolen Bonds.
In case any Bond shall be mutilated, or destroyed, lost or stolen,
the Paying Agent/Registrar may execute and deliver a replacement
Bond of like form and tenor, and in the same denomination and
bearing a number not contemporaneously outstanding, in exchange
and substitution for such mutilated Bond, or in lieu of and in
substitution for such destroyed, lost or stolen Bond, only upon
the approval of the City and after (i) the filing by the Holder
thereof with the Paying Agent/ Registrar of evidence satisfactory
to the Paying Agent/ Registrar of the destruction, loss or theft
of such Bond, and of the authenticity of the ownership thereof and
(ii) the furnishing to the Paying Agent/Registrar of
indemnification in an amount satisfactory to hold the City and the
Paying Agent/ Registrar harmless. All expenses and charges
associated with such indemnity and with the preparation, execution
and delivery of a replacement Bond shall be borne by the Holder of
the Bond mutilated, or destroyed, lost or stolen.
Every replacement Bond issued pursuant to this Section shall
be a valid and binding obligation, and shall be entitled to all
the benefits of this Ordinance equally and ratably with all other
Outstanding Bonds; notwithstanding the enforceability of paYment
by anyone of the destroyed, lost, or stolen Bonds.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement and payment of mutilated, destroyed,
lost or stolen Bonds.
SECTION 12:
Satisfaction of Obliqation of city. If the,
City shall payor cause to be paid, or there shall otherwise be
paid to the Holders, the principal of, premium, if any, and
interest on the Bonds, at the times and in the manner stipulated
0146210
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in this ordinance, then the pledge of taxes levied under this
Ordinance and all covenants, agreements, and other obligations of
the City to the Holders shall thereupon cease, terminate, and be
discharged and satisfied.
Bonds or any principal amount(s) thereof shall be deemed to
have been paid within the meaning and with the effect expressed
above in this section when (i) money sufficient to pay in full
such Bonds or the principal amount(s) thereof at maturity or to
the redemption date therefor, together with all interest due
thereon, shall have been irrevocably deposited with and held in
trust by the Paying Agent/Registrar, or an authorized escrow
agent, or (ii) Government Securities shall have been irrevocably
deposited in trust with the Paying Agent/ Registrar, or an
authorized escrow agent, which Government Securities have been
certified by an independent accounting firm to mature.__~s to
principal and interest in such amounts and at such times as will
insure the availability, without reinvestment, of sufficient
money, together with any moneys deposited therewith, if any, to
pay when due the principal of and interest on such Bonds, or the
principal amount(s) thereof, on and prior to the Stated Maturity
thereof or (if notice of redemption has been duly given or waived
or if irrevocable arrangements therefor acceptable to the Paying
Agent/Registrar have been made) the redemption date thereof. The
City covenants that no deposit of moneys or Government Securities
will be made under this section and no use made of any such
deposit which would cause the Bonds to be treated as "arbitrage
bonds" within the meaning of section 148 of the Internal Revenue
Code of 1986, as amended, or regulations adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/ Registrar, or
an authorized escrow agent, and all income from Government
Securities held in trust by the Paying Agent/Registrar, or an
authorized escrow agent, pursuant to this section which is not
required for the payment of the Bonds, or any principal amount(s)
thereof, or interest thereon with respect to which such moneys
have been so deposited shall be remitted to the City or deposited
as directed by the City. Furthermore, any money held by the
Paying Agent/Registrar for the payment of the principal of and
interest on the Bonds and remaining unclaimed for a period of
four (4) years after the Stated Maturity, or applicable redemption
date, of the Bonds such moneys were deposited and are held in
trust to pay shall upon the request of the City be remitted to the
City against a written receipt therefor. Notwithstanding the
above and foregoing, any remittance of funds from the Paying
Agent/Registrar to the City shall be subject to any applicable
unclaimed property laws of the State of Texas.
The term "Government Securities",
direct obligations of, or obligations
as used herein, means
the principal of and
0146210
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interest on which are unconditionally guaranteed by, the United
states of America, which are non-callable prior to the respective
Stated Maturities of the Bonds and may be united states Treasury
Obligations such as the state and Local Government Series and may
be in book-entry form.
SECTION 13: Ordinance a Contract Amendments
Outstandinq Bonds. This Ordinance shall constitute a contract
with the Holders from time to time, be binding on the City, and
shall not be amended or repealed by the City so long as any Bond
remains Outstanding except as permitted in this section. The City
may, without the consent of or notice to any Holders, from time to
time and at any time, amend this Ordinance in any manner not
detrimental to the interests of the Holders, including the curing
of any ambiguity, inconsistency, or formal defect or omission
herein. In addition, the city may, with the consent of >>_91ders
holding a majority in aggregate principal amount of the Bonds then
Outstanding affected thereby, amend, add to, or rescind any of the
provisions of this Ordinance; provided that, without the consent
of all Holders of Outstanding Bonds, no such amendment, addition,
or rescission shall (1) extend the time or times of payment of the
principal of, premium, if any, and interest on the Bonds, reduce
the principal amount thereof, the redemption price, or the rate of
interest thereon, or in any other way modify the terms of payment
of the principal of, premium, if any, or interest on the Bonds,
(2) give any preference to any Bond over any other Bond, or
(3) reduce the aggregate principal amount of Bonds required to be
held by Holders for consent to any such amendment, addition, or
rescission.
The term "outstanding" when used in this Ordinance wi th
respect to Bonds means, as of the date of determination, all Bonds
theretofore issued and delivered under this Ordinance, except:
( 1) those Bonds cancelled by the
Agent/Registrar or delivered to the Paying
Registrar for cancellation;
Paying
Agent/
(2) those Bonds deemed to be duly paid by the City
in accordance with the provisions of Section 12 hereof;
and
(3) those mutilated, destroyed, lost, or stolen
Bonds which have been replaced with Bonds registered and
delivered in lieu thereof as provided in Section 11
hereof.
SECTION 14: Covenants to Maintain Tax-Exempt Status.
(a) Definitions. When used in this Section, the following terms
shall have the following meanings:
'.
0146210
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"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.l48-l(b) of the Regulations.
"Gross Proceeds" means any proceeds as defined in
Section 1.l48-1(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.l48-1(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
is not acquired to carry out the governmental purposes
of the Bonds.
"Rebate Amount" has the meaning set forth in
Section 1.148-l(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"
respecti vely , 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.
0146210
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..._._:,;;:;:;:,:7".:=,-;:~~_::::,._~":=~_..._,,._
without limiting the generality of the foregoing, unless and until
the City receives a written opinion of counsel nationally
recognized in the field of municipal bond law to the effect that
failure to comply with such covenant will not adversely affect the
exemption from federal income tax of the interest on any Bond, the
City shall comply with each of the specific covenants in this
Section.
(c) No Private Use or Private PaYments. Except as permitted
by section 141 of the Code and the Regulations and rulings
thereunder, the City shall at all times prior to the last Stated
Maturity of Bonds:
(1) exclusively own, operate and possess all
property the acquisition, construction or improvement of
which is to be financed or ref inanced directly .o.r
indirectly with Gross Proceeds of the Bonds (including
property financed with Gross Proceeds of the Refunded
obligations), and not use or permit the use of such
Gross Proceeds (including all contractual arrangements
with terms different than those applicable to the
general public) or any property acquired, constructed or
improved with such Gross Proceeds in any activity
carried on by any person or entity (including the United
States or any agency, department and instrumentality
thereof) other than a state or local government, unless
such use is solely as a member of the general public;
and
(2) not directly or indirectly impose or accept
any charge or other payment by any person or entity who
is treated as using Gross Proceeds of the Bonds or any
property the acquisition, construction or improvement of
which is to be financed or ref inanced 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;
0146210
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",-.' "._---,_..._--~._--_.--_._.~._-_.".~----=..,._--~~-_.-.,-~~
(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 h~Jd or
previously disposed of, exceeds the Yield of the Bonds.
(f) Not FederallY Guaranteed. Except to the extent
permitted by section l49(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 l49(b) of the Code and the
Regulations and rulings thereunder.
(g) Information Report. The City shall timely file the
information required by section 149 (e) of the Code with the
Secretary of the Treasury on Form 8038-G or such other form and in
such place as the Secretary may prescribe.
(h) Rebate of Arbitraqe Profits. Except to the extent
otherwise provided in section l48(f) of the Code and the
Regulations and rulings thereunder:
(1) The City shall account for all Gross Proceeds
(inClUding all receipts, expenditures and investments
thereof) on its books of account separately and apart
from all other funds (and receipts, expenditures and
investments thereof) and shall retain all records of
accounting for at least six 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
'.
0146210
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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
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
0146210
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length and had the Yield of the Bonds not been relevant to either
party.
(j) Elections. The City hereby directs and authorizes the
City Manager and Director of Finance, either 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. (1) At the time the original
bonds refunded by the Bonds were issued, the City reasonably
expected to spend at least 85% of the spendable proceeds of such
bonds within three years after such bonds were issued and (2) not
more than 50% of the proceeds of the original bonds ref~qed by
the Bonds were invested in Nonpurpose Investments having a
sUbstantially guaranteed Yield for a period of 4 years or more.
(1) Qualified Advance Refundinq. 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 bonds may be redeemed and on
which the City will realize present value debt service
savings (determined without regard to administrative
expenses) on the issue.
( 3 ) The ini tial temporary per iod 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
'.
0146210
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the issuance of the Bonds the City has neither:
(i) overburdened the tax-exempt bond market by issuing
more bonds, issuing bonds earlier or allowing bonds to
remain outstanding longer than reasonably necessary to
accomplish the governmental purposes for which the Bonds
were issued; (ii) employed on "abusive arbitrage device"
within the meaning of section 1.148-10(a) of the
Regulations; nor (iii) employed a "device" to obtain a
material financial advantage based on arbitrage, within
the meaning of section 149 (d) (4) of the Code, apart from
savings attributable to lower interest rates and reduced
debt service payments in early years.
SECTION 15: Sale of Bonds - Official Statement Approval.
The Bonds authorized by this Ordinance are hereby sold by the City
to NationsBanc capital Markets, Bank of America NT & SA a~g__Texas
Commerce Bank National Association (herein referred to as the
"Purchasers") in accordance with the Bond Purchase Contract, dated
March 15, 1994, 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 Bond
Purchase Contract for and on behalf of the City and as the act and
deed of this Council, and the City Secretary is authorized to
attest said Bond Purchase Contract, and in regard to the approval
and execution of the Bond Purchase Contract, the Council hereby
finds, determines and declares that the representations,
warranties and agreements of the City contained therein are true
and correct in all material respects and shall be honored and
performed by the City.
Furthermore, the use of the Preliminary Official Statement in
connection with the public offering and sale of the Bonds is
hereby ratified, confirmed and approved in all respects. The
final Official statement reflecting the terms of sale, attached as
exhibit A to the Bond Purchase Contract (together with such
changes approved by the Mayor, City Secretary, City Manager or
Director of Finance, anyone or more 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 15, 1994, in the reoffering, sale and
delivery of the Bonds to the public. The Mayor and City Secretary
are further authorized and directed to manually execute and
deliver for and on behalf of the City copies of said Official
Statement in final form as may be required by the Purchasers, and
such Official Statement in the final form and content manually
executed by anyone or more of said officials shall be deemed to
be approved by the ci ty Council and constitute the Off icial .
Statement authorized for distribution and use by the Purchasers. .
0146210
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SECTION 16: Qualified 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
anticipated amount of "qualified tax exempt obligations" to be
issued by the City (including all subordinate entities of the
City) for the calendar year in which the Bonds are issued will not
exceed $10,000,000.
SECTION 17: Special Escrow Aqreement Approval and
Execution. The "Special Escrow Agreement" (the "Agreement") by
and between the City and Texas Commerce Bank National Association
(the "Escrow Agent") , attached hereto as Exhibit C and
incorporated herein by reference as a part of this Ordinance for
all purposes, is hereby approve~ as to form and content, ~q such
Agreement in substantially the form and substance attached hereto,
together with such changes or revisions as may be necessary to
accomplish the refunding or benefit the City, is hereby authorized
to be executed by the Mayor and City Secretary for and on behalf
of the City and as the act and deed of the City Council; and such
Agreement as executed by said officials shall be deemed approved
by the City Council and constitute the Agreement herein approved.
Furthermore, appropriate officials of the City in cooperation
with the Escrow Agent are hereby authorized and directed to make
the necessary arrangements for the purchase of the Federal
Securities referenced in the Agreement and the delivery thereof to
the Escrow Agent on the day of delivery of the Bonds to the
Purchasers for deposit to the credit of the "SPECIAL 1994 CITY OF
COLLEYVILLE, TEXAS, REFUNDING BOND ESCROW FUND" (the "Escrow
Fund"); all as contemplated and provided in Article 717k,
V.A.T.C.S., as amended, this Ordinance and the Agreement.
SECTION 18: Control and Custody of Bonds. The Mayor of the
City shall be and is hereby authorized to take and have charge of
all necessary orders and records pending investigation by the
Attorney General of the State of Texas, including the printing and
supply of definitive Bonds, and shall take and have charge and
control of the Initial Bond(s) pending the approval thereof by the
Attorney General, the registration thereof by the comptroller of
Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Mayor, Mayor Pro Tem, 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 agreements, documents and certifications
relating to the City and the issuance, sale and delivery of the
Bonds, including certifications as to facts, estimates,
circumstances and reasonable expectations pertaining to the use,
0146210
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expenditure and investment of the proceeds of the Bonds, as may be
necessary for the approval of the Attorney General, the
registration by the Comptroller of Public Accounts and the
delivery of the Bonds to the Purchasers, and, together with the
City's bond counsel and the Paying Agent/Registrar, make the
necessary arrangements for the delivery of the Initial Bond(s) to
the Purchasers and the initial exchange thereof for definitive
Bonds.
SECTION 19: Proceeds of Sale. Immediately following the
delivery of the Bonds, the proceeds of sale thereof (less certain
costs of issuance, the accrued interest received from the
Purchasers of the Bonds and the amounts to be deposited to the
credit of the construction fund) shall be deposited with the
Escrow Agent for application and disbursement in accordance with
the provisions of the Agreement. The proceeds of sale of the
Bonds not so deposited with the Escrow Agent for the refunding of
the Refunded Obligations shall be disbursed and deposited for
payment of costs of issuance, deposited in the Interest and
Sinking Fund and deposited in the construction fund, all in
accordance with written instructions from the Ci ty . Pending
expenditure for authorized projects and purposes, the proceeds of
sale of the Bonds deposi ted to the construction fund may be
invested in authorized investments and any investment earnings
realized may be expended for such authorized projects or purposes
or deposited in the Interest and Sinking Fund as shall be
determined by the City Council. All surplus proceeds of sale of
the Bonds deposited in the construction fund, including investment
earnings, remaining after completion of all authorized projects or
purposes shall be deposited to the credit of the Interest and
Sinking Fund.
Addi tionally, on or immediately prior to the date of the
delivery of the Bonds to the Purchasers, the Director of Finance
shall cause to be transferred in immediately available funds to
the Escrow Agent from moneys on deposit in the interest and
sinking funds maintained for the payment of the Refunded
Obligations the sum of $85,035.32 to accomplish the refunding.
SECTION 20: Notices to Holders - Waiver. Wherever this
Ordinance provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and sent by United states Mail, first
class postage prepaid, to the address of each Holder appearing in
the Security Register at the close of business on the business day
next preceding the mailing of such notice.
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
0146210
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such notice with respect to all other Bonds. Where this Ordinance
provides for notice in any manner, such notice may be waived in
writing by the Holder entitled to receive such notice, either
before or after the event with respect to which such notice is
given, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Paying
Agent/Registrar, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver.
SECTION 21: Cancellation. 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 ___~gent/
Registrar. The City may at any time deliver to the Paying
Agent/Registrar for cancellation any Bonds previously certified or
registered and delivered which the City may have acquired in any
manner whatsoever, and all Bonds so delivered shall be promptly
cancelled by the Paying Agent/Registrar. All cancelled Bonds held
by the Paying Agent/Registrar shall be returned to the City.
SECTION 22: 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, approving such Bonds as to their
validity, said opinion to be dated and delivered as of the date of
delivery and payment for such Bonds. A true and correct
reproduction of said opinion or an executed counterpart thereof is
hereby authorized to be either printed on definitive printed
obligations or deposited with DTC along with the global
certificates for the implementation and use of the Book Entry Only
System used in the settlement and transfer of the Bonds.
SECTION 23: CUSIP Numbers. CUSIP numbers may be printed
or typed on the Bonds deposited with The Depository Trust Company
or on printed definitive Bonds. It is expressly provided,
however, that the presence or absence of CUSIP numbers on the
definitive Bonds shall be of no significance or effect as regards
the legality thereof and neither the City nor attorneys approving
the Bonds as to legality are to be held responsible for CUSIP
numbers incorrectly printed or typed on the definitive Bonds.
SECTION 24: Benef its of Ordinance. Nothing in this
Ordinance, expressed or implied, is intended or shall be construed
to confer upon any person other than the Ci ty , 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
0146210
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~_".':"'.____'~__"~___"____'~."__._'_""_'_~_"___.__.___--=-.____ .._~--_-.~.-.__ .n.__.__....,.
.,....---,...=
intended to be and being for the sole and exclusive benefit of the
City, the Paying Agent/Registrar and the Holders.
SECTION 25: Inconsistent Provisions. 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 26: Governinq Law. This Ordinance shall be
construed and enforced in accordance with the laws of the State of
Texas and the united States of America.
SECTION 27: Effect of Headinqs.
herein are for convenience only and
construction hereof.
The section headings
shall not affect the
SECTION 28: Construction of Terms. If appropriate in the
context of this ordinance, words of the singular number shall be
considered to include the plural, words of the plural number shall
be considered to include the singular, and words of the masculine,
feminine or neuter gender shall be considered to include the other
genders.
SECTION 29: Severability. If any provision of this
Ordinance or the application thereof to any circumstance shall be
held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be
valid, and the City Council hereby declares that this Ordinance
would have been enacted without such invalid provision.
SECTION 30: Incorporation of Findinqs and Determinations.
The findings and determinations of the City Council contained in
the preamble hereof are hereby incorporated by reference and made
a part of this Ordinance for all purposes as if the same were
restated in full in this Section.
SECTION 31: Public Meetinq. It is officially found,
determined, and declared that the meeting at which this Ordinance
is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered
at such meeting, including this Ordinance, was given, all as
required by V. T. C. A., Local Government Code, Chapter 551, as
amended.
'.
0146210
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SECTION 32: Effective Date. This Ordinance shall take
effect and be in force immediately from and after its third
reading and final passage, and it is so ordained.
FIRST READING, February 15, 1994.
SECOND READING, March 1, 1994.
THIRD AND FINAL READING, PASSED AND ADOPTED March 15, 1994.
CITY OF COLLEYVILLE, TEXAS
9t1((~
Mayor
(City Seal)
APPROVED AS TO FORM:
2T~
City Attorney
'.
0146210
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f.fsHC\
A
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of March 15, 1994 (this
"Agreement"), by and between the City of COlleyville, Texas (the
"Issuer"), and Texas Commerce Bank National Association, a banking
association duly organized and existing under the laws of the
United states of America, (the "Bank").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the
execution and delivery of its "ci ty of Colleyville, Texas, General
Obligation Refunding and Improvement Bonds, Series 1994" (the
"Securities"), dated March 1, 1994, such Securities to be issued
in fully registered form only as to the payment of princip~l and
interest thereon; and
WHEREAS, the Securities are scheduled to be delivered to the
initial purchasers thereof on or about April 19, 1994; 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 L 01. Appointment. The Issuer hereby appoints the
Bank to serve as Paying Agent with respect to the Securities, and,
as Paying Agent for the Securities, the Bank shall be responsible
for paying on behalf of the Issuer the principal, premium (if
any), and interest on the Securities as the same become due and
payable to the registered owners thereof; all in accordance with
this Agreement and the "Bond Resolution" (hereinafter defined) .
The Issuer hereby appoints the Bank as Registrar with respect to
the Securities and, as Registrar for the Securities, the Bank.
shall keep and maintain for and on behalf of the Issuer books and .
records as to the ownerShip of said Securities and with respect to
01463&1
the transfer and exchange thereof as provided herein and in the
"Bond Resolution".
The Bank hereby accepts its appointment, and agrees to serve
as the Paying Agent and Registrar for the Securities.
section 1.02. Compensation. As compensation for the Bank's
services as paying Agent/Registrar, the Issuer hereby agrees to
pay the Bank the fees and amounts set forth in Annex A attached
hereto for the first year of this Agreement and thereafter the
fees and amounts set forth in the Bank's current fee schedule then
in effect for services as Paying Agent/Registrar for
municipalities, which shall be supplied to the Issuer on or before
90 days prior to the close of the Fiscal Year of the Issuer, and
shall be effective upon the first day of the following Fiscal
Year.
In addition, the Issuer agrees to reimburse the Bank upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Bank in accordance with any of the
provisions hereof (including the reasonable compensation and the
expenses and disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
"Acceleration Date" on any Security means the date on
and after which the principal or any or all installments of
interest, or both, are due and payable on any Security which
has become accelerated pursuant to the terms of the Security.
"Bank Office" means the principal office of the Bank as
indicated on page 11 hereof. The Bank will notify the Issuer
in writing of any change in location of the Bank Office.
"Bond" Resolution" means the resolution, order, or
ordinance of the governing body of the Issuer pursuant to
which the Securities are issued, certified by the Secretary
or any other officer of the Issuer and delivered to the Bank.
"Fiscal Year" means the fiscal year of the Issuer,
ending September 30th.
0148331
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EXHiBiT A
---.- - - ----
.'---'--'""'--'-~'-~
'".,--,..-----_..,~.,._-
"Holder" and "Security Holderll each means the Person in
whose name a Security is registered in the Security Register.
"Issuer Request II and "Issuer Orderll means a written
request or order signed in the name of the Issuer by the
Mayor, City Secretary, City Manager or Finance Director, any
one or more of said officials, and delivered to the Bank.
ilLegal Holidayll means a day on which the Bank is
required or authorized to be closed.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision of a government.
"Predecessor Securities" of any particular Security
means every previous Security evidencing all or a portion of
the same obligation as that evidenced by such particular
Security (and, for the purposes of this definition, any
mutilated, lost, destroyed, or stolen Security for which a
replacement Security has been registered and delivered in
lieu thereof pursuant to section 4.06 hereof and the
Resolution) .
"Redemption Date" when used with respect to any Security
to be redeemed means the date fixed for such redemption
pursuant to the terms of the Bond Resolution.
"Responsible Officerll 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.
'.
Ol46llS1
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EXHiBIT
"
H.
_.--'~'.....--._,-_.._-_.~....._--- '....--.-'-..--.--..---..-.-.........-.-.--.....--'..'.---..- ..-.-
"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 Payinq Aqent. As Paying Agent, the
Bank shall, provided adequate collected funds have been pr9vided
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
01(6381
-4-
I""X','n\'
tJ i1:G I
A
containing such other information as may be reasonably required by
the Issuer and subject to such reasonable regulations as the
Issuer and Bank may prescribe. All transfers, exchanges and
replacement of Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer, the signature on which has been guaranteed by an officer
of a federal or state bank or a member of the National Association
of Securities Dealers, in form satisfactory to the Bank, duly
executed by the Holder thereof or his agent duly authorized in
writing.
The Bank may request any supporting documentation it feels
necessary to effect a re-registration, transfer or exchangtL9f 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.
0148381
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. . -_.._------~--~.~-._..,_...-_.~,--~.__._._-_._".._...--_.._.---~-......--."_.._~_._.__..__._-_..._....' .
The Security Register may be maintained in written form or in
any other form capable of being converted into written form within
a reasonable time.
Section 4.04. List of Security Holders. The Bank will
provide the Issuer at any time requested by the Issuer, upon
payment of the required fee, a copy of the information contained
in the Security Register. The Issuer may also inspect the
information contained in the Security Register at any time the
Bank is customarily open for business, provided that reasonable
time is allowed the Bank to provide an up-to-date listing or to
convert the information into written form.
The Bank will not release or disclose the contents of the
Security Register to any person other than to, or at the written
request of, an authorized officer or employee of the .Issuer,
except upon receipt of a court order or as otherwise required by
law. Upon receipt of a court order and prior to the release or
disclosure of the contents of the Security Register, the Bank will
notify the Issuer so that the Issuer may contest the court order
or such release or disclosure of the contents of the Security
Register.
Section 4.05. Return of Cancelled Certificates. The Bank
will, at such reasonable intervals as it determines, surrender to
the Issuer, Securities in lieu of which or in exchange for which
other Securities have been issued, or which have been paid.
Section 4.06. Mutilated. Destroyed. Lost or Stolen Securi-
ties. The Issuer hereby instructs the Bank, subj ect to the
provisions of Section 11 of the Bond Resolution, to deliver and
issue Securities in exchange for or in lieu of mutilated,
destroyed, lost, or stolen Securities as long as the same does not
result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost
or stolen, the Bank may execute and deliver a replacement security
of like form and tenor, and in the same denomination and bearing
a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in
substitution for such destroyed lost or stolen Security, only upon
the approval of the Issuer and after (i) the filing by the Holder
thereof with the Bank of evidence satisfactory to the Bank of the
destruction, loss or theft of such Security, and of the
authenticity of the ownership thereof and (ii) the furnishing to
the Bank of indemnification in an amount satisfactory to hold the
Issuer and the Bank harmless. All expenses and charges associated.
with such indemnity and with the preparation, execution and'
delivery of a replacement Security shall be borne by the Holder of
the Security mutilated, or destroyed, lost or stolen.
01463S1
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EXH'B\\ A
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.
may conclusively rely, as to the truth of the
correctness of the opinions expressed therein, on
opinions furnished to the Bank.
(a) The Bank
statements and
certificates or
(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 prov~s~ons 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.
0146381
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~\\-\\B\\ A
_.._'__"'M'_.___,.-t._._...._...~_,___..____,~_____~___-'--"-~-"--"--'''---'---r--'-'---''--
(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 Issu~r_, any
Holder or Holders of any Security, or any other Person for any
amount due on any Security from its own funds.
section 5.04. May Hold Securities. The Bank, in its
individual or any other capacity, may become the owner or pledgee
of Securities and may otherwise deal with the Issuer with the same
rights it would have if it were not the Paying Agent/Registrar, or
any other agent.
section 5.05. Moneys Held by Bank - Fiduciary Account/
Collateralization. A fiduciary account shall at all times be kept
and maintained by the Bank for the receipt, safekeeping and
disbursement of moneys received from the Issuer hereunder for the
payment of the Securities, and money deposited to the credit of
such account until paid to the Holders of the Securities shall be
continuously collateralized by securities or obligations which
qualify and are eligible under both the laws of the State of Texas
and the laws of the United States of America to secure and be
pledged as collateral for fiduciary accounts to the extent such
money is not insured by the Federal Deposit Insurance Corporation.
Payments made from such fiduciary account shall be made by check
drawn on such fiduciary account unless the owner of such
Securities shall, at its own expense and risk, request such other
medium of payment.
The Bank shall be under no liability for interest on any
money received by it hereunder.
Subject to the applicable unclaimed property laws of the
State of Texas, any money deposited with the Bank for the payment
of the principal, premium (if any), or interest on any Security.
and remaining unclaimed for four years after final maturity of the.
Security has become due and payable will be paid by the Bank to
the Issuer, and the Holder of such Security shall thereafter look
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_..__._-~,-_..__.._----,..._.,.- -........'_._~'-....--
only to the Issuer for payment thereof, and all liability of the
Bank with respect to such moneys shall thereupon cease.
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
consti tute adequate service. The Issuer and the Bank further
agree that the Bank has the right to file a Bill of Interpleader
in any court of competent jurisdiction to determine the rights of
any Person claiming any interest herein.
section 5.08. DT Services. It is hereby represented and
warranted that, in the event the Securities are otherwise
qualified and accepted for "Depository Trust Company" services or
equivalent depository trust services by other organizations, the
Bank has the capability and, to the extent within its control,
will comply with the "Operational Arrangements", effective August
1, 1987, which establishes requirements for securities to be
eligible for such type depository trust services, including, but
not limited to, requirements for the timeliness of payments and
funds availability, transfer turnaround time, and notification of
redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
section 6. 01. Amendment. This Agreement may be amended only
by an agreement in writing signed by both of the parties hereto.
section 6.02. Assiqnment. This Agreement may not be
assigned by either party without the prior written consent of the
other.
section 6.03. Notices. Any request, demand, authorization,
direction, notice, consent, waiver, or other document provided or
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EX\-HB\T A
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.
Section 6.04. Effect of Headinqs. The Article and section
headings herein are for convenience only and shall not affect the
construction hereof.
Section 6.05. Successors and Assiqns. All covenants and
agreements herein by the Issuer shall bind its successors and
assigns, whether so expressed or not.
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 Agreement. Nothing herein,
express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any benefit or any
legal or equitable right, remedy, or claim hereunder.
Section 6. OS . 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
'.
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-~,-_." .___.___..'_.._~.._'".._ + ._.._,.." .'~.. __.._n."_'_, ____"~M_'__.'..:-===---...:..__,~,.:.-.-.-.~-~-...~.,..,
~-,-,...~.._.,~" ~. '. "f ".~-_...__._-_--::..::-..=..-._-
to the Securities, to the successor Paying Agent/Registrar
designated and appointed by the Issuer.
The provisions of Section 1. 02 and of Article Five shall
survive and remain in full force and effect following the
termination of this Agreement.
section 6.11. 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.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
BY
Title:
[SEAL]
Attest:
Mailing Address:
Title:
Debt Administration Division
P. O. Box 2320
Dallas, Texas 75221-2320
Delivery Address:
Debt Administration Division
1201 Elm street, 30th Floor
Dallas, Texas 75201
CITY OF COLLEYVILLE, TEXAS
BY
Mayor
(CITY SEAL)
Attest:
Address: 5400 Bransford Road
Colleyville, Texas 76034
City Secretary
'.
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E.XH\B\1 C
SPECIAL ESCROW AGREEMENT
THE STATE OF TEXAS
s
s
s
COUNTY OF DALLAS
THIS SPECIAL ESCROW AGREEMENT (the "Agreement"), made and
entered into as of March 1, 1994, 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 Texas Commerce Bank National Association,
Dallas, Texas, a national banking association organized and
existing under the laws of the United States of America, 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 $1,595,000 (hereinafter
collectively referred to as the "Refunded Obligations") and more
particularly described as follows:
(1) City of Colleyville, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series
1989, dated August 1, 1989, maturing on
February 1 in each of the years 2001 through
2012, and aggregating in principal amount
$ 925,000
(2) City of Colleyville, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series
1991, dated January 1, 1991, maturing on
February 1 in each of the years 2001 through
2013, and aggregating in principal amount
$ 670,000
WHEREAS, in accordance with the provisions of Article 717k,
V.A.T.C.S., as amended (the "Act"), the City is authorized to sell
refunding bonds in an amount sufficient to provide for the payment
of obligations to be refunded, deposit the proceeds of such
refunding bonds with any place of payment for the obligations being
refunded and enter into an escrow or similar agreement with such
place of paYment for the safekeeping, investment, reinvestment,
administration and disposition of such deposit, upon such terms and
conditions as the parties may agree, provided such deposits may be
invested only in direct obligations of the United States of.
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
0146329
bear interest payable at such times and in such amounts as will be
sufficient to provide for the scheduled payment of Refunded
Obligations; and
WHEREAS, the Refunded Obligations are scheduled to mature, or
be redeemed, and interest thereon is payable on the dates and in
the manner set forth in Exhibit A attached hereto and incorporated
herein by reference as a part of this Agreement for all purposes;
and
WHEREAS, the City on the 1st day of March, 1994, 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, General Obligation Refunding and Improvement
Bonds, Series 1994" (the "Bonds"), and such Bonds are being issued
to refund, discharge and make final payment of the princip~!-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
deposi t and credit of the same to the Escrow Fund as provided
herein; and
WHEREAS, the Bank is a national banking association organized
and existing under the laws of the United States of America,
possessing trust powers and is fully qualified and empowered to
enter into this Agreement; and
WHEREAS, in Section 17 of the Bond Ordinance, the City Council
duly approved and authorized the execution of this Agreement; and
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"-'-"-~"'-'.'-'--"-"'------~""~-'-"-"~-"-'"".--~. .
WHEREAS, the city and the Escrow Agent, as the case may be,
shall take all action necessary to call, pay, redeem and retire
said Refunded Obligations in accordance with the provisions
thereof, including, without limitation, all actions required by the
ordinances authorizing the Refunded Obligations, the Act, the Bond
Ordinance and this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and to secure the payment of the principal of and
the interest on the Refunded Obligations as the same shall become
due, the City and the Bank hereby mutually undertake, promise and
agree as follows:
SECTION 1: Receipt of Refunded Bond Ordinances. Receipt
of copies of the ordinances authorizing the issuance of the
Refunded Obligations and the Bond Ordinance are hereby acknowledged
by the Bank. Reference herein to or ci tat ion 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 ci ty wi th the Bank a special segregated and
irrevocable trust fund designated "SPECIAL 1994 CITY OF
COLLEYVILLE, TEXAS, REFUNDING BOND ESCROW FUND" (hereinafter called
the "Escrow Fund") for the benefit of the holders of the Refunded
Obligations, and, immediately following the delivery of the Bonds,
the City agrees and covenants to cause to be deposited with the
Bank the following amounts:
$1,749,535.32 for the purchase of Federal Securities
identified in Exhibit B to be held for the
account of the Escrow Fund
$
11.01 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 Sufficiencv Warranty. The City hereby
represents that the cash and Federal Securities, together with the
interest to be earned thereon, deposited to the credit of the
Escrow Fund will be sufficient to pay the principal of and premium
and interest on the Refunded Obligations as the same shall become
due and payable, and such Refunded Obligations, and the interest
thereon, are to mature or be redeemed and shall be paid at the
010(6329
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SXHtBlT (~
times and in the amounts set forth and identified in Exhibit A
attached hereto.
FURTHERMORE, the Bank acknowledges receipt of a copy of the
resolution providing for the redemption of (i) series 1989 Refunded
Obligations on February 1, 2000 at the redemption price of par plus
accrued interest and (ii) Series 1991 Refunded Obligations on
February 1, 2000 at the redemption price of par plus accrued
interest; all in accordance with the provisions of the respective
notice requirements applicable to said Refunded Obligations and the
notice requirements contained in the ordinances authorizing the
Refunded Obligations.
The Bank agrees to cause a notice of redemption pertaining to
the Refunded Obligations to be sent to the registered owners
thereof appearing on the registration books at least thirty (30)
days prior to the respective redemption date therefor.
SECTION 4: Pledqe of Escrow. The Bank agrees that all cash
and Federal Securities, together with any income or interest earned
thereon, held in the Escrow Fund shall be and is hereby irrevocably
pledged to the payment of the 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 Insufficiency - city Warrantv 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
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..._....._-,-".-------.--.__.__.__.__..-._..,-_.._,~.._.~~~~-_.-... ._.~..^~--,.-
represented by the Federal Securities, shall always be maintained
on deposit in the Escrow Fund by the Bank, as trustee; and a
special account evidencing such facts shall at all times be
maintained on the books of the Bank.
SECTION 7: Escrow Fund Collections/Payments. The Bank shall
from time to time collect and receive the principal of and interest
on the Federal Securities as they respectively mature and become
due and credit the same to the Escrow Fund. On or before each
principal and/or interest payment date or redemption date, as the
case may be, for the Refunded Obligations shown in Exhibit A
attached hereto, the Bank, without further direction from anyone,
including the City, shall cause to be withdrawn from the Escrow
Fund the amount required to pay the accrued interest on the
Refunded Obligations due and payable on said paYment date and the
principal of the Refunded Obligations 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 or interest coupon 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 prov~s~ons 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.
0146329
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SECTION 8: Disposal of Refunded Obliqations. All Refunded
Obligations cancelled on account of payment by the Bank shall be
disposed of or otherwise destroyed by the Bank, and an appropriate
certificate of destruction furnished the City.
SECTION 9 : Escrow Fund Encumbrance. The escrow created
hereby shall be irrevocable and the holders of the Refunded
Obligations shall have an express lien on all moneys and Federal
Securities in the Escrow Fund until paid out, used and applied in
accordance with this Agreement.
Unless disbursed in payment of the Refunded Obligations, all
funds and the Federal Securities received by the Bank for the
account of the City hereunder shall be and remain the property of
the Escrow Fund and the ci ty and the owners of the Refunded
Obligations shall be entitled to a preferred claim and s~~~l 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 Securi ties in the Escrow Fund for payment of services
rendered hereunder, services rendered as paying agent/registrar for
the Refunded Obligations, or for any costs or expenses incurred
hereunder and reimbursable from the City.
SECTION 11: Substitution of Investments/Reinvestments. The
Bank shall be authorized to accept initially and temporarily cash
and/or substituted securities pending the delivery of the Federal
~ecurities 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:
0146329
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tV' qn,\\ ,...,
i\ \1 "oJ
-~'_~--_._-_____~-_._~"._..._._""__,~_~___.___,.._"_"__..__.__.__.~...,.___.~"'''_w..........__
(1) an opinion by an independent certified public
accountant to the effect that (i) the initial and/or
temporary substitution of cash and/ or securities for one
or more of the Federal Securities identified in
Exhibit B pending the receipt and delivery thereof to
the Escrow Agent or (ii) the redemption of one or more
of the Federal Securities and the reinvestment of such
funds in one or more substituted securities (which shall
be noncallable direct obligations of the United States
of America), together with the interest thereon and
other available moneys then held in the Escrow Fund,
will, in either case, be sufficient, without
reinvestment, to pay, as the same become due in
accordance with Exhibit A, the principal of, and
interest on, the Refunded Obligations which have not
previously been paid, and
(2) with respect to an early redemption of Federal
Securities and the reinvestment of the proceeds thereof,
an unqualified opinion of nationally recognized
municipal bond counsel to the effect that (a) such
investment will not cause interest on the Bonds or
Refunded Obligations to be included in the gross income
for federal income tax purposes, under the Code and
related regulations as in effect on the date of such
investment, or otherwise make the interest on the Bonds
or the Refunded Obligations subject to Federal income
taxation and (b) such reinvestment complies with the
Constitution and laws of the State of Texas and with
all relevant documents relating to the issuance of the
Refunded Obligations and the Bonds.
SECTION 12: Restriction on Escrow Fund Investments -
Reinvestment. Except as provided in Section 11 hereof,
moneys in the Escrow Fund will be invested only in the
Federal Securities listed in Exhibit B and neither the City
nor the Bank shall reinvest any moneys deposited in the
Escrow Fund except as specifically provided by this
Agreement.
SECTION 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:
'.
0146329
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(1) an op~n~on by an independent certified public
accountant that after the transfer of such excess, the
principal amount of securities in the Escrow Fund,
together with the interest thereon and other available
monies then held in the Escrow Fund, will be sufficient
to pay, as the same become due, in accordance wi th
Exhibit A, the principal of I 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 s~gh
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 Payinq Aqent's Charqes. The City agrees to pay the
Bank for the performance of services hereunder and as
reimbursement for anticipated expenses to be incurred hereunder
the amount of $4,750.00 and, except for reimbursement of costs and
expenses incurred by the Bank pursuant to Sections 3, 11 and 19
hereof, the Bank hereby agrees said amount is full and complete
paYment for the administration of this Agreement.
The City also agrees to deposit with the Bank on the
effective date of this Agreement, the sum of $5,900.00 and the
Bank acknowledges and agrees that the above 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
0146329
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EXH!B1T fi
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^ ----~-----~-,.
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 Director of Finance or Mayor and/or City Secretary
of the City as sufficient evidence of the facts therein contained.
The Bank may accept a certificate of the City Secretary under the
City's seal, to the effect that a resolution or other instrument
in the form therein set forth has been adopted by the City Council
of the City, as conclusive evidence that such resolution or other
instrument has been duly adopted and is in full force and effect.
The duties and obligations of the Bank shall be determined
solely by the express provisions of this Agreement and the Bank
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this
Agreement against the Bank.
In the absence of bad faith on the part of the Bank, the Bank
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificate or opinion furnished to the Bank, conforming to the
requirements of this Agreement; but notwithstanding any provision
of this Agreement to the contrary, in the case of any such
certificate or opinion or any evidence which by any provision
hereof is specifically required to be furnished to the Bank, the
Bank shall be under a duty to examine the same to determine '.
whether it conforms to the requirements of this Agreement.
0146329
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tr'.t110i \Iv
. ~
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 indi~ectly
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 familiari ty 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
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
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such assignment or attempted assignment shall be in direct
conflict with this Agreement and be without effect.
SECTION 19: Internleader. 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 recei ved
hereunder in regard to such issue; and
(b) File a suit in interpleader and obtain an
order from a court of appropriate jurisdiction requiriE9
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 Dallas, Texas.
The Bank may advise with legal counsel in the event of any
dispute or question regarding the construction of any of the
provisions hereof or its duties hereunder, and in the absence of
negligence or bad faith on the part of the Bank, no liability
shall be incurred by the Bank for any action taken pursuant to
this section and the Bank shall be fully protected in acting in
accordance with the opinion and instructions of legal counsel that
is knowledgeable and has expertise in the field of law addressed
in any such legal opinion or with respect to the instructions
given.
SECTION 20: Accountinq - Annual Report. Promptly after
September 30th of each year, commencing with the year 1994, while
the Escrow Fund is maintained under this Agreement, the Bank shall
forward to the City, to the attention of the Director of Finance,
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.
'.
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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 76034-0185
Attention: Director of Finance
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
P. O. Box 2320
Dallas, Texas 75221-2320
Attention: Debt Administration
The United States Post Office registered or certified mail receipt
showing delivery of the aforesaid shall be conclusive evidence of
the date and fact of delivery.
Any party hereto may change the address to which notices are
to be delivered by giving to the other parties not less than ten
(10) days prior notice thereof.
SECTION 22: Performance Date. Whenever under the terms of
this Agreement the performance date of any provision hereof,
including the date of maturity of interest on or principal of the
Refunded Obligations, shall be a Sunday or a legal holiday or a
day on which the Bank is authorized by law to close, then the
performance thereof, including the payment of principal of and
interest on the Refunded obligations, need not be made on such
date but may be performed or paid, as the case may be, on the next
succeeding business day of the Bank with the same force and effect
as if made on the date of performance or payment and with respect
to a payment, no interest shall accrue for the period after such
date.
SECTION 23: Warranty of Parties Re: Power to Execute and
Deliver Escrow Aqreement. The City covenants that it will
faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this
Agreement, in any and every said Refunded Obligation as executed,
authenticated and deli vered 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
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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: Severability. 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 conta!~~d 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
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
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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 notif ied 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
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
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"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 ci ty , the Bank and their respecti ve 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 modifrcation
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 Counteroarts. 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.
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