HomeMy WebLinkAboutOrdinances (O-94-937)-03/01/1994
TABLED-MARCH 15,1994
ORDINANCE NO. 0 - 1'/..- C) 3 7
AN ORDINANCE authorizing the issuance of "CITY OF
COLLEYVILLE, TEXAS, WATERWORKS AND SEWER SYSTEM
REVENUE REFUNDING BONDS, SERIES 1994"; prescribing
the forms, terms, and provisions of said bonds;
pledging the net revenues of the City's Waterworks
and Sewer System to the payment of the principal of
and interest on said bonds; enacting provisions
incident and related to the issuance, payment,
security, sale and delivery of said bonds,
including the approval and execution of a Paying
Agent/Registrar, a Purchase Contract and a Special
Escrow Agreement and the approval and distribution
of an Official Statement pertaining thereto; and
providing an effective date.
WHEREAS, the City of Colleyville, Texas (the "City") has duly
issued and delivered, and there is currently outstanding the
following described obligations, payable from and secured by a lien
on and pledge of the net revenues of the City's combined Waterworks
and Sewer System (the "System"), and totalling in principal amount
$1,500,000 (hereinafter collectively called the "Refunded
Obligations"), to wit:
(1) City of Colleyville, Texas,
Waterworks and Sewer System Revenue Bonds,
Series 1987, dated March 1, i987, maturing on
January 1 in each of the years 1999 through
2007, and aggregating in principal amount
~.i ~ f^
(2) city of CollE~yville, Texas,
Waterworks and Sewer System Revenue Bonds,
Series 1989, dated August 1., 1989, maturing on
January 1 in each of the fears 2001 through
2010, and aggregating in principal amount
$ 990,000
$ 510,000
,. I.,
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AND WHEREAS, pursuant to the provisions of Article 717k,
V.A.T.C.S., as amended, th~I'{:ity Council is 'authorized to issue
refunding bonds and de~osit tHe proceeds of sale directly with any
place of payment for the 'Refunded Obligations, and such deposit,
when made in accordance with said statute, shall constitute the
making of firm banking and financial arrangements for the discharge
and final payment of the ~efunded obligations;. and
WHEREAS, the City Council hereby finds and determines that
revenue refunding bonds should be issued at this time to refund the
Refunded Obligations, and such refunding will result in the City
saving approximately $ in debt service payments on
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such indebtedness and further provide present value savings of
approximately $ ; and
WHEREAS, the City Council hereby further finds and determine~
that said revenue refunding bonds can and should be issued on a
parity with the outstanding and unpaid revenue bonds of the City
(hereinafter called and defined as "Previously Issued Bonds")
payable from and secured by a first lien on and pledge of the Net
Revenues of the System in that (i) the City is not now in default
as to any covenant, condition or obligation prescribed in the
ordinances authorizing the issuance of the Previously Issued Bonds,
(ii) each of the special Funds created for the payment and security
of the Previously Issued Bonds contains the amount now required to
be on deposit therein, (iii) the City can secure from a certified
Public Accountant a report showing that the Net Earnings
(hereinafter defined) of the System in the completed Fiscal Year
next preceding the adoption of this ordinance are equal to at least
one and twenty hundredths (1.20) times the average annual principal
and interest requirements for all the revenue bonds to be secured
by a first lien on and pledge of the Net Revenues of the System
which will be Outstanding after the issuance of the revenue bonds
herein authorized, (iv) the revenue bonds herein authorized shall
mature on January 1 and, (v) this ordinance provides for additional
deposits to be made to (a) the Interest and Sinking Fund
(hereinafter defined) established for the payment of the Previously
Issued Bonds in amounts adequate to pay the principal and interest
requirements of the bonds herein authorized to be issued and
(b) the Reserve Fund (hereinafter'defined) created for the benefit
of the Previously Issued Bonds so that the total amount to be
accumulated therein will be equal to not less than the average
annual principal and interest requjfements for all the Outstanding
Previously Issued Bonds and the revenue bonds herein authorized and
any additional amount required to be deposited therein will be
accumulated within ten (10) cJllendar years of the date of the
revenue bonds herein authorizea; now, therefore,
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BE IT ORDAINED BY THE CI~1/cOUNCIL OF THE CITY OF COLLEYVILLE,
TEXAS:
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SECTION 1: Authoriz~tion-Designation-principal Amount
-Purpose. Revenue refunaing bonds of the City shall be and are
hereby authorized to be issued in the aggregate principal amount of
$ to be designated and bear the title "CITY OF
COLLEYVILLE, TEXAS, WATERWORKS AND SEWER SYSTEM REVENUE REFUNDING
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
paying costs of issuance, pursuant to authority conferred by and in
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conformity with the Constitution and laws of the state of Texas,
including Article 717k, V.A.T.C.S., as amended.
SECTION 2: Fully Reqistered Obligations - Authorized
Denominations - Stated Maturities - Date. The Bonds shall be
issued as fully registered obligations, without coupons, shall be
dated March' 1, 1994 (the "Bond Date") and, other than the single
fully registered Initial Bond referenced in section 8 hereof, shall
be in denominations of $5,000 or any integral multiple thereof
(within a Stated Maturity), shall be numbered consecutively from
One (1) upward and shall become due and payable on January 1 in
each of the years and in principal amounts (the "Stated
Maturities") and bear interest at per annum rates in accordance
with the following schedule:
(
The Bonds shall bear interest on the unpaid principal amounts
from the Bond Date at the rane's) per annum shown in the above
schedule (calculated on the basis of a 360-day year of twelve
30-day months). Interest/l'pn the Bonds shall be payable on
January 1 and July 1 in e~ch year, commencing July 1, 1994.
Year of
Stated Maturity
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
.
Principal
Amount
Interest
Rate(s)
$
,000
,000
,000
,000
,000
,000
,000
,000
,000
,000
,000
,000
· j;U'O 0
,000
,000
,000
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
SECTION 3: Terms of Payment - Payinq Aqent/Reqistrar. The
principal of, premium, if any, and the interest on the Bonds, due
and payable by reason of maturity, redemption ~r otherwise, shall
be payable only to the registered owners or holders of the Bonds
(hereinafter called the "Holders") appearing on the registration
and transfer books maintained by the Paying Agent/Registrar and the
payment thereof shall be in any coin or currency of the United
states of America, which at the time of payment is legal tender for
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the payment of public and private debts, and shall be without
exchange or collection charges to the Holders.
The selection and appointment of NationsBank of Texas, N.A.,
Dallas, Texas to serve as Paying Agent/Registrar for the Bonds is
hereby approved and confirmed. Books and records relating to the
registration, payment, exchange and transfer of the Bonds (the
"Security Register") shall at all times be kept and maintained on
behalf of the City by the Paying Agent/Registrar, all as provided
herein, in accordance with the terms and provisions of a "Paying
Agent/Registrar Agreement", substantially in the form attached
hereto as Exhibit A, and such reasonable rules and regulations as
the Paying Agent/Registrar and the City may prescribe. The Mayor
and City Secretary are hereby authorized to execute and deliver
such Agreement in connection with the delivery of the Bonds. The
City covenants to maintain and provide a Paying Agent/Registrar at
all times until the Bonds are paid and discharged, and any
successor Paying Agent/Registrar shall be a bank, trust company,
financial institution or other entity qualified and authorized to
serve in such capacity and perform the duties and services of
Paying Agent/Registrar. Upon any change in the Paying
Agent/Registrar for the Bonds, the City agrees to promptly cause a
written notice thereof to be sent to each Holder by united States
Mail, first class postage prepaid, which notice shall also give the
address of the new Paying Agent/Registrar.
Principal of and premium, if any, on the Bonds shall be
payable at the Stated Maturities or upon their earlier redemption,
only upon presentation and surrender of the Bonds to the paying
Agent/Registrar at its principal offices in Atlanta, Georgia (the
"Designated Payment/Transfer Offio~" Interest on the Bonds shall
be paid to the Holders whose names appear in the Security Register
at the close of business on the Record Date (the 15th day of the
month next preceding each inter~st payment date) and shall be paid
by the Paying Agent/Registrar (l) by check sent united States Mail,
first class postage prepaid, to{the address of the Holder recorded
in the Security Register or (~i)_by such other method, acceptable
to the Paying Agent/Registrar, requested by, and at the risk and
expense of, the Holder. ' /~f: the date for the payment of the
principal of or interest on t~e Bonds shall be a Saturday, Sunday,
a legal holiday, or a day on which banking institutions in the city
where the Designated Payment/Transfer Office of the Paying
Agent/Registrar is located are authorized by law or executive order
to close, then the date~ for such payment .shall be the next
succeeding day which is not'such a Saturday, Sunday, legal holiday,
or day on which banking institutions are authorized to close; and
payment on such date shall have the same force and effect as if
made on the original date payment was due.
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In the event of a non-payment of interest on one or more
maturities on a scheduled payment date, and for thirty (30) days
thereafter, a new record date for such interest payment for such
maturity or maturities (a "Special Record Date") will be
established by the Paying Agent/Registrar, if and when funds for
the payment of such interest have been received from the City.
Notice of the Special Record Date and of the scheduled payment date
of the past due interest (which shall be 15 days after the Special
Record Date) shall be sent at least five (5) business days prior to
the Special Record Date by united States Mail, first class postage
prepaid, to the address of each Holder of such maturity or
maturities appearing on the Security Register at the close of
business on the last business day next preceding the date of
mailing of such notice.
,
SECTION 4: Redemption. (a) Optional Redemption. The Bonds
maturing on and after January 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 January 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 date set for the redemption of
Bonds (unless a shorter notification period shall be satisfactory
to the Paying Agent/Registrar), the City shall notify the Paying
Agent/Registrar of its decision to exercise the right to redeem
Bonds, the principal amount of each Stated Maturity to be redeemed,
and the date set for the redempti~Pthereof. 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 ~f:or Redemption. If less than all
Outstanding Bonds of the same Stated Maturity are to be redeemed on
a redemption date, the payi.ilq Agent/Registrar shall treat such
Bonds as representing the number of Bonds Outstanding which is
obtained by dividing the p~ncipal amount of such Bond by $5,000
and shall select the. Bonds, , or pr incipal amount thereof, to be
redeemed within such Sta~ed Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30) days
prior to a redemption daee 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
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presumed to have been duly given irrespective of whether received
by the Holder.
All notices of redemption shall (i) specify the date o~
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 subj ect by its terms to pr ior redemption and has been
called for redemption and notice of redemption thereof has been
duly given or waived as herein provided, such Bond (or the
principal amount thereof to be redeemed) shall become due and
payable, and interest thereon shall cease to accrue from and after
the redemption date therefor, provided moneys sufficient for the
payment of such Bonds (or of the principal amount thereof to be
redeemed) at the then applicable redemption price are held for the
purpose of such payment by the Paying Agent/Registrar.
SECTION 5: Reqistration - Transfer - Exchanqe of Bonds -
Predecessor Bonds. The Paying' Agent/Registrar shall obtain,
record, and maintain in the Security Register the name and address
of each registered owner of the Bonds issued under and pursuant to
the provisions of this Ordinance. ~.~y Bond may, in accordance with
its terms and the terms hereof, 'be transferred or exchanged for
Bonds of other authorized denominations upon the Security Register
by the Holder, in person or by his duly authorized agent, upon
surrender of such Bond to the D$signated Payment/Transfer Office of
the Paying Agent/Registrar far cancellation, accompanied by a
written instrument of transDer or request for exchange duly
executed by the Holder or by his duly authorized agent, in form
satisfactory to the Payin~ ,Aqentj Registrar.
. 1
Upon surrender for' transfer of any Bond (other than the
Initial Bonds authorized in Section 8 hereof) at the Designated
Payment/Transfer Office of the Paying Agent/Registrar, one or more
new Bonds shall be regi"stered and issued to the assignee or
transferee of the previous'Holder; such Bonds to be in authorized
denominations, of like Stated Maturity and of a like aggregate
principal amount as the Bond or Bonds surrendered for transfer.
At the option of the Holder, Bonds (other than the Initial
Bonds authorized in section 8 hereof) may be exchanged for other
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Bonds of authorized denominations and having the same Stated
Maturity, bearing the same rate of interest and of like aggregate
principal amount as the Bonds surrendered for exchange, upon
surrender of the Bonds to be exchanged at the Designated
Payment/Transfer Office of the Paying Agent/ Registrar. Whenever
any Bonds are surrendered for exchange, the Paying Agent/Registrar
shall register and deliver new Bonds, executed on behalf of, and
furnished by, the City, to. the Holder requesting the exchange.
All Bonds issued upon any transfer or exchange of Bonds shall
be delivered at the Designated Payment/Transfer Office of the
Paying Agent/Registrar, or sent by United states Mail, first class
postage prepaid, to the Holder and, upon the delivery thereof, the
same shall be valid obligations of the City, evidencing the same
obligation to pay, and entitled to the same benefits under this
Ordinance, as the Bonds surrendered in such transfer or exchange.
All transfers or exchanges of Bonds pursuant to this section
shall be made without expense or service charge to the Holder,
except as otherwise herein provided, and except that the Paying
Agent/Registrar shall require payment by the Holder requesting such
transfer or exchange of any tax or other governmental charges
required to be paid with respect to such transfer or exchange.
Bonds cancelled by reason of an exchange or transfer pursuant
to the provisions hereof are hereby defined to be "Predecessor
Bonds," evidencing all or a portion, as the case may be, of the
same obligation to pay evidenced 'by the Bond or Bonds registered
and delivered in the exchange or transfer therefor. Additionally,
the term "Predecessor Bonds" shall. include any mutilated, lost,
destroyed, or stolen Bond for whiGH^ a replacement Bond has been
issued, registered and delivered in lieu thereof pursuant to this
Ordinance and such new replacement Bond shall be deemed to evidence
the same obligation as the mutilated, lost, destroyed, or stolen
Bond. f:'
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Neither the City nor t~e .paying Agent/Registrar shall be
required to transfer or exchange any Bond called for redemption, in
whole or in part, within 45:/d,ays of the date fixed for redemption
of such Bond; provided~ howevet, 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 (DTC), a limited purpose trust
company organized under the laws of the State of New York, in
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accordance with the requirements and procedures identified in the
Letter of Representation, by and between the City, the Paying
Agent/Registrar and DTC (the "Depository Agreement") relating to
the Bonds.
Pursuant to the Depository Agreement and the rules of DTC, the
Bonds shall be deposited with DTC who shall hold said Bonds for its
participants (the "DTC Participants"). While the Bonds are held by
DTC under the Depository Agreement, the Holder of the Bonds on the
Security Register for all purposes, including payment and notices,
shall be Cede & Co., as nominee of DTC, notwithstanding the
ownership of each actual purchaser or owner of each Bond (the
"Beneficial Owners") being recorded in the records of DTC and DTC
Participants.
"
In the event DTC determines to discontinue serving as
securities depository for the Bonds or otherwise ceases to provide
book-entry clearance and settlement of securities transactions in
general or the City determines that DTC is incapable of properly
discharging its duties as securities depository for the Bonds, the
City covenants and agrees with the Holders of the Bonds to cause
Bonds to be printed in definitive form and provide for the Bond
certificates to be issued and delivered to DTC Participants and
Beneficial Owners, as the case may be. Thereafter, the Bonds in
definitive form shall be assigned, transferred and exchanged on the
Security Register maintained by the Paying Agent/Registrar and
payment of such Bonds shall be made in accordance wi th the
provisions of sections 3, 4 and S'hereof.
SECTION 7: Execution - Reqistration. The Bonds shall be
executed on behalf of the CitY~.iJJ~ 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 Bond Date shall be deemed to be duly executed on
behalf of the City, notwithsta~ding that such individuals or either
of them shall cease to hold such offices at the time of delivery of
the Bonds to the initial 'P9r~haser(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
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Agent/Registrar, and either such certificate upon any Bond duly
signed shall be conclusive evidence, and the only evidence, that
such Bond has been duly certified, registered and delivered.
SECTION 8: Initial Bond(s). The Bonds herein authorized
shall be initially issued either (i) as a single fully registered
bond in the total principal amount noted in section 1 with
principal installments to become due and payable as provided in
Section 2 hereof and numbered T-1, or (ii) as sixteen (16) fully
registered bonds, being one bond for each year of maturity in the
applicable principal amount and denomination and to be numbered
consecutively from T-1 and upward (hereinafter called the "Initial
Bond(s) ") and, in either case, the Initial Bond(s) shall be
registered in the name of the initial purchaser(s) or the designee
thereof. The Initial Bond(s) snaIl be the Bonds submitted to the
Office of the Attorney General of the State of Texas for approval,
certified and registered by the Office of the Comptroller of Public
Accounts of the State of Texas and delivered to the initial
purchaser(s). Any time after the delivery of the Initial Bond(s),
the Paying Agent/Registrar, pursuant to written instructions from
the initial purchaser (s), or the designee thereof, shall cancel the
Initial Bond(s) delivered hereunder and exchange therefor
definitive Bonds of authorized denominations, Stated Maturities,
principal amounts and bearing applicable interest rates for
transfer and delivery to the Holders named at the addresses
identified therefor; all pursuant to and in accordance with such
written instructions from the initial purchaser(s), or the designee
thereof, and such other information and documentation as the Paying
Agent/Registrar may reasonably require.
SECTION 9: Forms. A. FG~ms Generallv. The Bonds, the
Registration certificate of the Comptroller of Public Accounts of
the State of Texas, the certificate of Registration, 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 o~;required by this Ordinance and may
have such letters, numbers, or other marks of identif ication
(including identifying numbe~s and letters of the Committee on
Uniform Securities rdentification Procedures of the American
Bankers Association) and such legends and endorsements (including
insurance legends in the event the Bonds, or any maturities
thereof, are purchased with insurance and any reproduction of an
opinion of counsel) ther~eon as may, consistently herewith, be
established by the city'or determined by the officers executing
such Bonds as evidenced by their execution thereof. Any portion of
the text of any Bonds may be set forth on the reverse thereof, with
an appropriate reference thereto on the face of the Bond.
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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
off icers executing such Bonds as evidenced by their execution
thereof. .
B. Form of Definitive Bond.
REGISTERED REGISTERED
NO. $
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF COLLEYVILLE, TEXAS, WATERWORKS
AND SEWER SYSTEM REVENUE REFUNDING BOND
SERItS 1994
Bond Date:
March 1, 1994
Interest Rate: Stated Maturity: CUSIP NO:
Registered Owner:
Principal Amount:
DOLLARS
The City of Colleyville (hereinafter referred to as the
"city"), a body corporate and municipal corporation in the County
of Tarrant, State of Texas, for value received, hereby promises to
pay to the order of the Registered Owner named above, or the
registered assigns thereof, solely from the revenue~ hereinafter
identified, on the Stated MatuD.ii~'9' date specified above, the
Principal Amount stated above (or so much thereof as shall not have
been paid upon prior redemption) and to pay interest on the unpaid
principal Amount hereof from the Bond Date at the per annum rate of
interest specified above compu~d on the basis of a 360-day year of
twelve 30-day months; such interest being payable on January 1 and
July 1 of each year, commencinq .July 1, 1994. Principal of this
Bond is payable at the Stated Maturity or redemption to the
registered owner hereof, upp~ presentation and surrender, at the
Designated Payment/Transfer O~fice 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,
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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 i~
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 $ (herein referred
to as the "Bonds") for the purpose of refunding certain outstanding
obligations and paying costs of issuance, under and in strict
conformity with the Constitution and laws of the state of Texas,
including Article 717k, V.A.T.C.S., and pursuant to an Ordinance
adopted by the City Council of the City (herein referred to as the
"Ordinance") .
The Bonds maturing on and after January 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 January 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 given by United states Mail, first class postage
prepaid, to 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 prino;ii~fH 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 redempt~on 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'tA~ redemption price of such principal
amount shall be made to the registered owner only upon presentation
and surrender of this Bond to the Designated Payment/Transfer
Office of the Paying Agent/Registrar and, there shall be issued to
the registered owner hereof, without charge, a new Bond or Bonds of
like maturity and interest rate in any authorized denominations
provided in the Ordinance 'for the then unredeemed balance of the
principal sum hereof. If this Bond is called for redemption, in
whole or in part, the City and the Paying Agent/Registrar shall not
be required to transfer this Bond to an assignee of the Holder
within 45 days of the redemption date therefor; provided, however,
such limitation on transferability shall not be applicable to an
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exchange by the Holder of the unredeemed balance hereof in the
event of its redemption in part.
The Bonds are special obligations of the City, and, togethe~
with the outstanding Previously Issued Bonds (identified and
defined in the Ordinance), are payable solely from and equally and
ratably secured by a first lien on and pledge of the Net Revenues
(as defined in the Ordinance) of the City's combined Waterworks and
Sanitary Sewer System (the "System"). The Bonds do not constitute
a legal or equitable pledge, charge, lien or encumbrance upon any
property of the City or the System, except with respect to the Net
Revenues. The holder hereof shall never have the right to demand
payment of this obligation out of any funds raised or to be raised
by taxation.
Subject to satisfying the terms and conditions prescribed
therefor, the city has reserved the right to issue additional
revenue obligations payable from and equally and ratably secured by
a parity lien on and pledge of the Net Revenues of the System, in
the same manner and to the same extent as the Bonds.
Reference is hereby made to the Ordinance, a copy of which is
on file in the Designated Payment/Transfer Office of the Paying
Agent/Registrar, and to all of the provisions of which the Holder
by the acceptance hereof hereby assents, for definitions of terms;
the description of and the nature and extent of the security for
the Bonds; the properties constituting the System; the Net Revenues
pledged to the payment of the principal of and interest on the
Bonds; the nature and extent and manner of enforcement of the lien
and pledge securing the payment of the Bonds; the terms and
conditions for the issuance of add4tional revenue obligations; the
terms and conditions relating to the transfer or exchange of this
Bond; the conditions upon which the Ordinance may be amended or
supplemented with or without _..-the consent of the Holders; the
rights, duties, and obligatibhs of the City and the Paying
Agent/Registrar; the terms and' provisions upon which the liens,
pledges, charges and covenants'made therein may be discharged at or
prior to the maturity or redemption of this Bond, and this Bond
deemed to be no longer Outst~nding thereunder; and for the other
terms and provisions .contained therein. Capitalized terms used
herein have the same meanIngs assigned in the Ordinance.
This Bond, subject to certain limitations contained in the
Ordinance, may be transferred on the Security. Register only upon
its presentation and surrender at the Designated Payment/Transfer
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
0147010
-12-
more new fully registered Bonds of the same Stated Maturity, of
authorized denominations, bearing the same rate of interest, and of
the same aggregate principal amount will be issued by the Paying
Agent/Registrar to the designated transferee or transferees.
The City and the Paying Agent/Registrar, and any agent of
either, may treat the registered owner hereof whose name appears on
the Security Register (i) on the Record Date as the owner entitled
to payment of interest hereon, (ii) on the date of surrender of
this Bond as the owner entitled to payment of principal hereof at
its stated Maturity or its redemption, in whole or in part, and
(iii) on any other date as the owner for all other purposes, and
neither the City nor the Paying Agent/Registrar, or any agent of
either, shall be affected by notice to the contrary. In the event
of non-payment of interest on a scheduled payment date and for
thirty (30) days thereafter, a new record date for such interest
payment (a IlSpecial Record Datell) will be established by the Paying
Agent/Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record
Date and of the scheduled payment date of the past due interest
(which shall be 15 days after the Special Record Date) shall be
sent at least five (5) business days prior to the Special Record
Date by United States Mail, first class postage prepaid, to the
address of each Holder appearing on the Security Register at the
close of business on the last business day next preceding the date
of mailing of such notice.
It is hereby certified, recited, represented and covenanted
that the City is a duly organized and legally existing municipal
corporation under and by virtue of the Constitution and laws of the
State of Texas; that the issuance.~~.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 obligati9ns of the City have been properly
done, have happened and have llieen 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 paymeat of the principal of and interest on
the Bonds by a pledge of the Net Revenues of the System as
aforestated. In case any provision in this Bond or any application
thereof shall be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions and
applications shall not in any way be affected or impaired thereby.
The terms and provisions of this Bond and the Ordinance shall be
construed in accordance with and shall be governed by the laws of
the State of Texas.
0147010
-13-
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 Bond Date.
CITY OF COLLEYVILLE, TEXAS
COUNTERSIGNED:
Mayor
City Secretary
(SEAL)
r
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. .:i:/"
WITNESS
my
signature
and
seal
of
office
this
t ~:
/. 'Comptroller of Public Accounts
of the State of Texas
I..
.r
(SEAL)
t /J.J \
1
*NOTE TO PRINTER:
Do Not Print on Definitive Bonds
"
0147010
-14-
,._-,-_._~."t"._~,--,._--"-"----_.._------~-----_._. .------r--.-"-~--"-'-...~..,.,--"-..^--
..-".-..... 'r ........
D. Form of certificate of Paving Agent/Reqistrar to
appear on Definitive Bonds only.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Bond has been duly issued and registered under the
provisions of the within-mentioned Ordinance; the bond or bonds of
the above entitled and designated series originally delivered
having been approved by the Attorney General of the State of Texas
and registered by the Comptroller of Public Accounts, as shown by
the records of the Paying Agent/Registrar.
The principal offices of the Paying Agent/Registrar in
Atlanta, Georgia, is the Designated Payment/Transfer Office for
this Bond. ·
NATIONSBANK OF TEXAS, N.A.,
Dallas, Texas,
as Paying Agent/Registrar
Registration Date:
By
Authorized Signature
E.
Form of Assiqnment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns, and transfers unto (Print or typewrite name, address,
and zip code of transferee:)
., ft.
....:-r,,1f!i
or other identifying number:
within Bond and all rights thereunder,
consti tutes and appoints {:
(SocialSecurity
) the
and hereby irrevocably
f attorney
to transfer the within Bond ,bn ~he books kept for registration
thereof, with full power of substitution in the premises.
, :11"
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
paraqraph B of this Section. except that the form of a sinqle
fully reqistered Initial Bond shall be modified as follows::
0147010
-15-
. f'"""'~~'"----""~~-'--"'---~--_._---"~ - _.....__.__..__,_...~._".."~M_~__."__"., -"~..._------"-'-~~-
--..-..----.,-.-.-...--..---.-.-.-----....-..--.'."...
(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:
The City of Colleyville (hereinafter referred to as the
"City"), a body corporate and municipal corporation in the County
of Tarrant, state of Texas, for value received, hereby promises to
pay to the order of the Registered Owner named above, or the
registered assigns thereof, solely from the revenues hereinafter
identified, on January 1 in each of the years and in principal
amounts and bearing interest at per annum rates in accordance with
the following schedule:
r
YEAR
PRINCIPAL
INSTALLMENTS
INTEREST
RATE
(Information to be inserted from
schedule in section 2 hereof).
(or so much thereof as shall not have been prepaid prior to
maturity) and to pay interest on the unpaid principal amounts
hereof from the Bond Date at the per annum rates of interest
specified above computed on the basis of a 360-day year of twelve
3D-day months; such interest being. payable on January 1 and July 1
of each year, commencing July 1, 1994. Principal installments of
this Bond are payable at its Stated Maturity or on a prepayment
date to the registered owner hereof ~y NationsBank of Texas, N.A.,
Dallas, Texas (the "paying AgentPRegistrar"), upon presentation
and surrender, at its principal offices in Atlanta, Georgia (the
"Designated Payment/Transfer Office"). Interest is payable to the
registered owner of this Bond wbose name appears on the "Security
Register" maintained by the Pating Agent/ Registrar at the close
of business on the "Record Dat'e", which is the 15th day of the
month next preceding each inte~ast payment date and interest shall
be paid by the Paying Agent/Registrar by check sent united states
Mail, first class postage'pre~aid, to the address of registered
owner recorded in the.Security Register on the Record Date or by
such other method, acceptable to the Paying Agent/Registrar,
requested by, and at the risk and expense of, the registered
owner. All payments of principal of, premium, if any, and
interest on this Bond shall be without exchange or collection
charges to the owner hereof and in any coin or currency of the
united States of America which at the time of payment is legal
tender for the payment of public and private debts.
SECTION 10: Definitions. For all purposes of this
Ordinance and in particular for clarity with respect to the
0147010
-16-
issuance of the Bonds herein authorized and the
appropriation of revenues to the payment of the
following definitions are provided:
pledge
Bonds,
"Addi tional Parity ObI iga t ions" - Bonds, notes,
warrants, certificates of obligation or other evidences
of indebtedness which the city reserves the right to
issue or enter into, as the case may be, in the future
under the terms and conditions provided in this
Ordinance and which are equally and ratably secured by
a first lien on and pledge of the Net Revenues of the
System.
"Bonds" - The "City
Waterworks and Sewer System
Series 1994", dated March 1,
Ordinance.
of Colleyville, Texas
Revenue Refunding Bonds,
1994, authorized by this
"City" - The City of Colleyville, located in the
County of Tarrant, Texas.
"Fiscal Year" - The twelve month operational period
of the System ending each year on September 30th;
provided, however, at such time as the Series 1975 and
Series 1975-A Previously Issued Bonds have been fully
paid as to both principal and interest, the City may
change the Fiscal Year to another period of not less
than twelve calendar months by the passage of an
ordinance, but in no event may the Fiscal Year be
changed more than one time in any three calendar year
. d ..oj f"
perl.O . ~:;.'"
"Government obligations" - Direct obligations of
the United States of Ameri9a, including obligations the
principal of and interesttbn which are unconditionally
guaranteed by the United states of America, and united
states Treasury obligati6~s_such as its State and Local
Government Series in book-entry form.
. .J/'.
"Gross Revenues;' . :.: All income, receipts and
revenues of every nature derived or received from the
operation and ownership (excluding refundable meter
deposits, restricted gifts and grants in aid of
construction) of the " ?ystem.
"Holder" or "Holders" - The registered owner, whose
name appears in the Security Register, for any Bond.
"Maintenance and Operating Expenses" - All current
expenses of operating and maintaining the System as
0147010
-17-
-,--.- .....
and
the
authorized by the provisions of Texas Revised Civil
statutes Annotated Article 1113, as amended, including
but not limited to, all salaries, labor, materials,
repairs and extensions necessary to render efficient
service; provided, however, that only such repairs and
extensions, as in the judgment of the City council,
reasonably and fairly exercised, are necessary to
maintain the operations and render adequate service to
the City and the inhabitants thereof, or such as might
be necessary to meet some physical accident or condition
which would otherwise impair obligations payable from
Net Revenues shall be deducted in determining Net
Revenues. Depreciation charges shall not be considered
Maintenance and Operating Expenses. Maintenance and
. . .
Operat1ng Expenses shall 1nclude payments under
contracts for the purchase of water supply, treatment of
sewage or other materials, goods or services for the
System to the extent authorized by law and the
provisions of such contract.
"Net Revenues" - Gross Revenues of the System, with
respect to any period, after deducting the System's
Maintenance and Operating Expenses during such period.
"obligations Similarly Secured" - Collectively, the
Bonds, the Previously Issued Bonds and any Additional
Parity Obligations, which sh~ll be parity obligations
being equally and ratably secured by and payable from a
lien on and pledge of the Net Revenues of the System.
"Outstanding" - When us~/'in this Ordinance with
respect to any Bonds means, as of the date of
determination, all Bonds . theretofore issued and
delivered under this Ordi~nce, except:
~.~.
1. those Bonds~heretofore cancelled by
the Paying Agent/~qistrar or delivered to
the Paying Agent/Registrar for cancellation;
t ...J.~' \
2. tnose Bonds for which payment has
been duly provided by the City in accordance
with the provisions of this Ordinance; and
3. those Bonds that have been
mutilated, destroyed, lost, or stolen and
replacement Bonds have been registered and
delivered in lieu thereof as provided in this
Ordinance.
0147010
-18-
r'-'~- ...-.,..-..-.................,..
....-r--...---...-.....------. .......-. .
..............-.--....--..T---...............----....-----... ............--..........
"Previously Issued Bonds" - shall mean the
outstanding and unpaid revenue bonds of the City payable
from and equally and ratably secured by a first lien on
and pledge of the Net Revenues of the System, identif ied
as follows:
(1) City of Colleyville, Texas
Waterworks and Sewer System Revenue Bonds,
Series 1975, dated January 1, 1975, and
originally issued in the principal amount of
$2,000,000;
(2) City of Colleyville, Texas
Waterworks and Sewer System Revenue Bonds,
Series 1975-A, dated July 1, 1975, and
originally issued in the principal amount of
$250,000;
(3) City of Colleyville, Texas
Waterworks and Sewer System Revenue Bonds,
Series 1981, dated April 1, 1981, and
originally issued in the principal amount of
$1,400,000;
(4) City of colleyville, Texas
Waterworks and Sewer System Revenue Bonds,
Series 1987, dated March 1, 1987 and
originally issued in the principal amount of
$1,500,000; and
(5) City of .c:9!1:leyville, Texas,
Waterworks and Sewer System Revenue Bonds,
Series 1989, dated August 1, 1989, and
originally issued in,the principal amount of
$750,000. (~
.7
"Required Reserve ~ount" - The amount required to
be deposited and maintained in the Reserve Fund under
the provisions of this,JOFdinance.
<
"system" - The waterworks and sewer system of the
city, together with any additions and extensions thereto
and improvements and replacements thereof hereafter
constructed or acqui~ed.
SECTION 11: Pledqe. The City hereby covenants and agrees
that all of the Net Revenues of the System, with the exception of
those in excess of the amounts required to establish and maintain
the special Funds created for the payment and security of the
Obligations Similarly Secured, are hereby irrevocably pledged,
0147010
-19-
. "'-'-'--'-'~--'---"--'-"---------"-'---''-' ,.,..- -r-"---'- ,. ."'-'- ..,
. .-...-----.-'T---'---.-----.-""'.--'.------- ..-----..0"-- .
equally and ratably, to the payment of the Previously Issued
Bonds, the Bonds, and Additional Parity Obligations, if issued,
and the interest thereon, as hereinafter provided. It is hereby
ordained that the Obligations Similarly Secured, and the interest
thereon, shall constitute a first lien on the Net Revenues of the
System and be valid and binding without any physical delivery
thereof or further act by the city.
SECTION 12: Rates and Charqes. For the benefit of the
Holders of the Bonds and in addition to all provisions and
covenants in the laws of the State of Texas and in this Ordinance,
the City hereby expressly stipulates and agrees, while any of the
Bonds are outstanding, to establish and maintain rates and charges
for facilities and services afforded by the System that are
reasonably expected, on the ba~is of available information and
experience and with due allowance for contingencies, to produce
Gross Revenues in each Fiscal Year sufficient:
1. To pay Maintenance and Operating Expenses,
depreciation charges and replacement and betterment
costs, and
2. To produce Net Revenues sufficient to pay the
principal of and interest on the Obligations Similarly
Secured and the amounts required to be deposited in any
reserve or contingency fund created for the payment and
security of the Obligations Similarly Secured, and any
other obligations or evidences of indebtedness issued or
incurred that are payable only from and secured solely
by a lien on and pledge of the Net Revenues of the
System. ~:iY"
3 . Any other legally incurred indebtedness payable
from the revenues of the System and/or secured by a lien
on the System. {~:
'/..
.r
SECTION 13: WaterworksF~and Sewer System Fund. The City
hereby covenants, agrees and reaff irms its covenants to the
Holders of the Previously ~~~ed Bonds that the Gross Revenues of
the System shall be deposited~ as collected and received, into a
separate account (previously created, established and to be
maintained with a depository bank of the City) known as the
Waterworks and Sewer System Fund (herein called the "System Fund")
and that the Gross Revenues of the System shall be kept separate
and apart from all other funds of the City. All Gross Revenues
deposited into the System Fund shall be pledged and appropriated
to the extent required for the following uses and in the order of
priority shown:
0147010
-20-
.. -'.---,.-'---'-'-"_._-~-----""''''.-'_."-'''-----'---'.-- -.- --~._-~~~..,._...._-,..-.. ....---.,.-.........--....
FIRST: To the payment of all necessary and reasonable
Maintenance and Operating Expenses as defined herein or
required by statute to be a first charge on and claim
against the Gross Revenues of the System.
SECOND: To the payment of the amounts required to be
deposited into the Interest and Sinking Fund
(hereinafter defined) created and established for the
payment of the principal of and interest on each of the
Obligations Similarly Secured as the same become due and
payable.
THIRD: To the payment of the amounts required to be
deposited into the Reserve Fund (hereinafter defined) to
establish and maintain the. Required Reserve Amount in
accordance with the provisions of this Ordinance or any
other ordinance relating to the issuance of Obligations
Similarly Secured.
Any Net Revenues remaining in the System Fund after
satisfying the foregoing payments, or making adequate and
sufficient provision for the payment thereof, may be appropriated
and used for any other City purpose now or hereafter permitted by
law.
SECTION 14: Interest and Sinkinq Fund. For purposes of
providing funds to pay the principal of and interest on the
Obligations Similarly Secured as the same become due and payable,
the City agrees to maintain on the books and records of the City,
a separate and special account or fund known as the "Waterworks
and Sewer System Interest and Silf~ihg Fund" (the "Interest and
Sinking Fund") and moneys deposited to the credit of such account
shall be kept in a special fund maintained at the depository of
the City. The City covenants tq.at there shall be deposited to the
credit of the Interest and Sirt~ing Fund prior to each principal
and interest payment date from the available Net Revenues an
amount equal to one hundre<f,'iper centum (100%) of the amount
required to fully pay the interest on and the principal of the
Bonds then falling due and payable, such deposits to pay maturing
principal and accrued interest on the Bonds to be made in
sUbstantially equal monthly installments on or before the
fifteenth day of each month, beginning on or before the fifteenth
day of the month next following the delivery of the Bonds to the
initial purchaser(s). ·
The required monthly deposits to the Interest and sinking
Fund for the payment of principal of and interest on the Bonds
shall continue to be made as hereinabove provided until such time
as (i) the total amount on deposit in the Interest and sinking
Fund and Reserve Fund is equal to the amount required to fully pay
0147010
-21-
- . ...-. -or' ---~"-""-"-"'--'--"-" .------..-..-.---- -.--,.---... --..
and discharge
(principal and
outstanding.
all outstanding
interest) or,
obligations Similarly
(ii) the Bonds are no
Secured
longer
Accrued interest and premium, if any, received from the
initial purchaser(s) of the Bonds, shall be taken into
consideration and reduce the amount of the monthly deposits
hereinabove required to be deposited into the Interest and sinking
Fund from the Net Revenues of the System. Additionally, any
proceeds of the Bonds not required to complete the improvements
and extensions to be made to the System shall be deposited into
the Interest and Sinking Fund and may be taken into consideration
and reduce the amount of monthly deposits required to be deposited
into the Interest and Sinking Fund from the Net Revenues of the
System. P
SECTION 15: Reserve Fund. For purposes of accumulating and
maintaining funds as a reserve for the payment of the Obligations
Similarly Secured, the City agrees, covenants and reaffirms its
covenants to the Holders of the Previously Issued Bonds to
maintain a special fund or account known as the "Waterworks and
Sewer System Reserve Fundll (the "Reserve Fundll), which Fund shall
be kept and maintained at an official depository of city funds.
All funds deposited to the credit of the Reserve Fund (excluding
earnings and income derived or received from deposits or
investments which may be transferred to the System Fund referenced
in section 13 of this Ordinance during such periods as there is on
deposit in the Reserve Fund the Required Reserve Amount) shall be
used solely for the payment of the principal of and interest on
the obligations Similarly Secured, when and to the extent other
funds available for such purposes':~e insufficient. .
In accordance with the provisions of the ordinances
authorizing the issuance of the Previously Issued Bonds, the
amount currently on deposit irl<the Reserve Fund is $
(the "Current Reserve"). By re'ason of the issuance of the Bonds,
the total amount required to .b~ accumulated and maintained in the
Reserve Fund shall be and is hereby increased to the sum of
$ (the "Requ1.I:ed Reserve Amountll), which amount
equals at least the average annual principal and interest
requirements for the Bonds and the Previously Issued Bonds now
outstanding. Beginning on or before the fifteenth day of the
month next following the delivery of the Bonds and on or before
the fifteenth day of each following month until the Required
Reserve Amount has been accumulated in the Reserve Fund, the City
covenants and agrees to deposit to the Reserve Fund an amount
equal to 1/60th of the difference between the Required Reserve
Amount and the Current Reserve.
0147010
-22-
When and so long as the cash and investments in the Reserve
Fund total not less than the Required Reserve Amount, no deposits
need be made to the credit of the Reserve Fund; but, if and when
the Reserve Fund at any time contains less than the Required.
Reserve Amount (other than as the resul t of the issuance of
Additional Parity Obligations as provided in the preceding
paragraph), the City covenants and agrees to cure the deficiency
in the Required Reserve Amount by resuming monthly deposits to
said Fund in an amount equal to 1j60th of the Required Reserve
Amount from the Net Revenues of the System on or before the
fifteenth day of each month until the Required Reserve Amount has
been fully restored. The city further covenants and agrees that,
subj ect only to the payments to be made to the Interest and
Sinking Fund, the Net Revenues shall be applied and appropriated
and used to establish and maintaIn the Required Reserve Amount and
to cure any deficiency in such amounts as required by the terms of
this Ordinance and any other ordinance pertaining to the issuance
of Additional Parity Obligations.
Money in the Reserve Fund, at the option of the City, may be
invested or reinvested from time to time in direct obligations or
obligations the principal and interest of which are guaranteed by
the united States. of America or invested in direct obligations of
or participation certificates guaranteed by the Federal
Intermediate Credit Banks, Federal Land Banks, Federal National
Mortgage Association, Federal Home Loan Banks, Banks for
Cooperatives, and in certificates.of deposit of any bank or trust
company the deposits of which are fully secured by a pledge of
securities of any of the kinds hereinabove specified, such
obligations or securities to mature in not more than ten (10)
years from the date of such inves~~nt. Any obligations in which
money is so invested shall be 'kept in escrow in the City's
depository bank and shall be promptly sold and the proceeds of
sale applied to the making of ~ayments required to be made from
the Reserve Fund whenever such~ayments are necessary to be made.
The deposits to the Reserve Fund shall be subordinate to those
required to be made into the.~nterest and Sinking Fund.
SECTION 16: Incorporation of certain provisions of Series
1989 Bond Ordinance. . sections 15 through 23, 25 through 30, 36
through 40 and 42 of Ordinance No. 0-89-733 authorizing the
issuance of the "City of Colleyville, Texas, Waterworks and Sewer
System Revenue Bonds, Series 1989", finally adopted by the City
Council on August 15, 19'89 are hereby incorporated herein by
reference and made a p~ri hereof for all purposes as if such
sections were restated in full as a part hereof.
SECTION 17: Special Covenants.
covenants as follows:
The City hereby further
0147010
-23-
.. _~__~'~'_"__I~""_"."__"___~_'._..._".m_'__,~_______._,,'_.."..--........------.~--.-~~~".-.-.-..-~-...-.--.,
*-,..~_._.,._.__._---~----'_.~-----'_._--".~~._'''-_..-",--_.~----,~--
(1) It has the lawful power to pledge the Net Revenues
supporting this issue of Bonds and has lawfully exercised said
powers under the Constitution and laws of the state of Texas,
including said power existing under Texas Revised civil statutes
Annotated Articles 1111 et seq, as amended, and Texas Revised
civil statutes Annotated Article 2368a, as amended.
(2) The Obligations Similarly Secured shall be equally and
ratably secured by a lien on and a pledge of the Net Revenues of
the System in a manner that one bond shall have no preference over
any other bond.
(3) Other than for the payment of the outstanding
Obligations Similarly Secured, the Bonds, and the outstanding
"City of Colleyville, Texas, Tax and Waterworks and Sewer System
(Limited Pledge) Revenue certificates of Obligation, Series 1989",
dated August 1, 1989 and "City of Colleyville, Texas, Tax and
Waterworks and Sewer System (Limited Pledge) Revenue Certificates
of obligation, Series 1991, dated January 1, 1991, the Net
Revenues of the System have not in any manner been pledged to the
payment of any debt or obligation of the City or of the System.
(4) While any Obligations Similarly Secured remain
Outstanding, the City will not sell, lease or encumber the System
or any substantial part thereof, provided that this covenant shall
not be construed to prohibit the sale of such machinery, or other
properties or equipment which ha~ become obsolete or otherwise
unsuited to the efficient operation of the System; also, with the
exception of Additional Parity obligations issued in accordance
with the terms and conditions of this Ordinance, it will not
encumber the Net Revenues unless 3~h encumbrance is'made junior
and subordinate to all of the provisions of this Ordinance.
(5) No free service of ~he System shall be allowed, and
should the City or any of its agents or instrumentalities make use
of the services and facilities of the System, payment of the
reasonable value thereof shari/be made by the City out of funds
from sources other than the revenues and income of the System.
, /J~"
(6) To the extent that' it legally may, the City further
covenants and agrees that,' while Obligations Similarly Secured are
outstanding, no franchise shall be granted for the installation or
operation of any competin~ waterworks and sanitary sewer systems
other than those owned by the City, and the operation of any such
systems by anyone other than the City is hereby prohibited.
SECTION 18: Covenants to Maintain
Status. (a) Definitions. When used in this
following terms shall have the following meanings:
Tax-Exem~t
Section, the
0147010
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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 1.148-1(b) of the Regulations.
"Gross Proceeds" means any proceeds as defined in
section 1.148-1(b) of the Regulations, and any
replacement proceeds as defined in Section 1.148-1 (c) of
the Regulations, of the Bonds.
"Investment" has the meaning set forth in section
1.148-1(b) of the Regulations.
"Nonpurpose Investment" means any investment
property, as defined in section 148(b) of the Code, in
which Gross Proceeds of the Bonds are invested and which
is not acquired to carry out the governmental purposes
of the Bonds.
"Rebate Amount" has the meaning set forth in
section 1.148-1(b) of the Regulations.
"Regulations" means any proposed, temporary, or
final Income Tax Regulations issued pursuant to sections
103 and 141 through 150 of -the Code, and 103 'of the
Internal Revenue Code of 1954, which are applicable to
the Bonds. Any reference to any specific Regulation
shall also mean, as appropltiate, any proposed, temporary
or final Income Tax Regulation designed to supplement,
amend or replace the spe~ffic Regulation referenced.
,:-.' ..
"Yield" of
, ..J.' \
(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
0147010
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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..
without limiting the generality of the foregoing, unless and until
the City receives a written opinion of counsel nationally
recognized in the field of municipal bond law to the effect that
failure to comply with such covenant will not adversely affect the
exemption from federal income tax of the interest on any Bond, the
City shall comply with each of the specific covenants in this
Section.
(c) No Private Use or Private Pavrnents. Except as permitted
by section 141 of the Code and the Regulations and rulings
. . .
thereunder, the Clty shall at all tlmes prior to the last Stated
Maturity of Bonds:
(1) exclusively own, operate and possess all
property the acquisition, construction or improvement of
which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Bonds (including
property financed with Gross Proceeds of the Refunded
Obligations)" and not use or permit the use of such
Gross Proceeds (including all contractual arrangements
with terms different than those applicable to the
general public) or any property acquired, constructed or
improved with such Gross proceeds in any activity
carried on by any person or entity (including the united
States or any agency, department and instrumentality
thereof) other than a state or ,local government, unless
such use is solely as a mem~~^of the general public;
and
(2) not directly or~indirectly impose or accept
any charge or other payme~t by any person or entity who
is treated as using Gross~:Proceeds of the Bonds or any
property the acquis i tion;. ~t:onstruction or improvement of
which is to be financed or ref inanced directly or
indirectly with such'GPO~s 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 thelr lntended 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
0147010
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. -,...~_.-~-,-~._..~--_._'- .'l.._..__......._'_._..'"-~._--~_._._-_.._"'---".,,~_._"-~,,~-,_._.
Gross Proceeds are considered to be "loaned" to a person or entity
if: (1) property acquired, constructed or improved with such Gross
Proceeds is sold or leased to such person or entity in a
transaction which creates a debt for federal income tax purposes;
(2) capacity in or service from such property is conuni tted to such .
person or entity under a take-or-pay, output or similar contract
or arrangement; or (3) indirect benefits, or burdens and benefits
of ownership, of such Gross Proceeds or any property acquired,
constructed or improved with such Gross Proceeds are otherwise
transferred in a transaction which is the economic equivalent of
a loan.
(e) Not to Invest at Hiqher Yield. Except to the extent
permitted by section 148 of the Code and the Regulations and
rulings thereunder, the City shall not at any time prior to the
final Stated Maturity of the Bonds directly or indirectly invest
Gross Proceeds in any Investment (or use Gross Proceeds to replace
money so invested), if as a result of such investment the Yield
from the Closing Date of all Investments acquired with Gross
Proceeds (or with money replaced thereby), whether then held or
previously disposed of, exceeds the Yield of the Bonds.
(f) Not Federallv Guaranteed. Except to the extent
permitted by section 149(b) of the Code and the Regulations and
rulings thereunder, the City shall not take or omit to take any
action which would cause the Bonds to be federally guaranteed
within the meaning of section 149(b) of the Code and the
Regulations and rulings thereunder.
(g) Information Report. The. City shall timely file the
information required by section ~::t4'9 (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 ArbitraqeVProfits.
otherwise provided in sectidn 148(f)
Regulations and rulings thereunder:
Except to the extent
of the Code and the
(1) The City shalJl\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.
0147010
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(2) Not less frequently than each Computation
Date, the City shall calculate the Rebate Amount in
accordance with rules set forth in section 148 (f) of the
Code and the Regulations and rulings thereunder. The
City shall maintain such calculations with its official
transcript of proceedings relating to the issuance of
the Bonds until six years after the final Computation
Date.
(3) As additional consideration for the purchase
of the Bonds by the Purchasers and the loan of the money
represented thereby and in order to induce such purchase
by measures designed to insure the excludability of the
interest thereon from the gross income of the owners
thereof for federal income tax purposes, the City shall
pay to the united states out of the Interest and Sinking
Fund or its general fund, as permitted by applicable
Texas statute, regulation or opinion of the Attorney
General of the State of Texas, the amount that when
added to the future value of previous rebate payments
made for the Bonds equals (i) in the case of a Final
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 ~;&" 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 ixercise reasonable diligence
to assure that no errors are made in the calculations
and payments required by/.pa:r;:agraphs (2) and (3), and if
an error is made, to discover and promptly correct such
error within a reasonabl'E~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
1.14S-3(h) of the Reg~lations. .
(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
0147010
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...-.----,--.~-------.._r_~..-.--.-.....--.----.-.
...------.-- ,
paid to the United states pursuant to Subsection H of this section
because such transaction results in a smaller profit or a larger
loss than would have resulted if the transaction had been at arm's
length and had the Yield of the Bonds not been relevant to either
party.
(j) Elections. The City hereby directs and authorizes the
city Manager, Director of Finance and city Secretary, individually
or jointly, to make elections permitted or required pursuant to
the provisions of the Code or the Regulations, as they deem
necessary or appropriate in connection with the Bonds, in the
certificate as to Tax Exemption or similar or other appropriate
certificate, form or document.
(k) Bonds Not Hedqe Bonds! At the time the original bonds
refunded by the Bonds were issued, the City reasonably expected to
spend at least 85% of the spendable proceeds of such bonds within
three years after such bonds were issued and not more than 50% of
the proceeds of the original bonds refunded by the Bonds were
invested in Nonpurpose Investments having a substantially
guaranteed Yield for a period of 4 years or more.
(1) Oualified 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.
~ .'~/:_ fl'.
(2) The Refunded Obligations are being called for
redemption, and will be redeemed: (i) in the case of
Refunded Obligations issu~ after 1985, not later than
the earliest date on whi~h such bonds may be redeemed
and on which the City wi~l realize present value debt
service savings (det~rmined without regard to
administrative expenses) on the issue; and (ii) in the
case of Refunded Obliqa~ions issued before 1986, not
later than the earliest date on which such issue may be
redeemed at par or at a premium of 3 percent or less and
on which the City will realize present value debt
service savings (determined without regard to
administrative expenses) on the issue.
.
(3) The ini tial temporary period under section
148(c) of the Code will end: (i) with respect to the
proceeds of the Bonds not later than 30 days after the
date of issue of such Bonds; and (ii) with respect to
0147010
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'"..-'--'-~-'-'-"'-"'-'"
.."...._'~-r--..._""'._. '." ....
.' +.._~'---,..^_._---'--_._..._--- ,
proceeds of the Refunded Obligations on the closing Date
if not ended prior thereto.
(4) On and after the date of issue of the Bonds,
no proceeds of the Refunded Obligations will be invested
in Nonpurpose Investments having a Yield in excess of
the Yield on such Refunded Obligations.
(5) The Bonds are being issued for the purposes
stated in the preamble of this Ordinance. There is a
present value savings associated with the refunding. In
the issuance of the Bonds the City has neither:
(i) overburdened the tax-exempt bond market by issuing
more bonds, issuing bonds earlier or allowing bonds to
remain outstanding longer than reasonably necessary to
accomplish the governmental purposes for which the Bonds
were issued; (ii) employed on "abusive arbitrage device"
within the meaning of Section 1.14S-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 19: Sale of Bonds - Official Statement Approval.
The Bonds authorized by this Ordinance are hereby sold by the City
to (herein referred to
collectively as the "Purchasers") 'in accordance with the Purchase
Contract, dated March 1, 1994, attached hereto as Exhibit Band
incorporated herein by reference as.a part of this Ordinance for
all purposes. The Mayor is herep.V^ authorized and 'directed to
execute said Purchase Contract for and on behalf of the City and
as the act and deed of this Council, and in regard to the approval
and execution of the Purchase C9ntract, the Council hereby finds,
determines and declares that tle representations, warranties and
agreements of the City contained in the Purchase Contract are true
and correct in all material/:b'espects and shall be honored and
performed by the City.
, ;J~ \
Furthermore, the use of the Official Statement by the
Purchasers in connection with the public offering and sale of the
Bonds is hereby ratified, confirmed and approved in all respects.
The final Official Statement, which reflects the terms of sale,
attached as Exhibit A to tne Purchase Contract (together with such
changes approved by the'Mayor, City Secretary, City Manager of
Director of Finance, one or both of said officials), shall be and
is hereby in all respects approved and the Purchasers are hereby
authorized to use and distribute said final Official Statement,
dated March 1, 1994, in the reoffering, sale and delivery of the
Bonds to the public. The Mayor and City Secretary are further
0147010
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_........._---,---.-.._-_..~.__..._-_..-.-......._.....__.-----..----,------.-------..-.--...---.
authorized and directed to manually execute and deliver for and on
behalf of the City copies of said Official statement in final form
as may be required by the Purchasers, and such final Official
statement in the form and content manually executed by said
officials shall be deemed to be approved by the city council and
constitute the Official statement authorized for distribution and
use by the Purchasers.
SECTION 20: Special Escrow Aqreement Approval and Execution.
The "Special Escrow Agreementll (the lIAgreement") by and between
the City and NationsBank of Texas, N.A., Dallas, Texas (the
"Escrow Agentll), attached hereto as Exhibit C and incorporated
herein by reference as a part of this Ordinance for all purposes,
is hereby approved as to form a~d content, and such Agreement in
substantially the form and substance attached hereto, together
with such changes or revisions as may be necessary to accomplish
the refunding or benefit the City, is hereby authorized to be
executed by the Mayor and City Secretary for and on behalf of the
City and as the act and deed of this City council; and such
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 lISPECIAL 1994 CITY OF
COLLEYVILLE, TEXAS, REVENUE REFUNDING BOND ESCROW FUND II (the
"Escrow Fundll); all as contemplated,~nd provided in Article 717k,
V.A.T.C.S., as amended, this Ordinance and the Agreement.
SECTION 21: Control and Custody of Bonds. The Mayor of the
City shall be and is hereby aut~orized to take and have charge of
all necessary orders and recdids pending investigation by the
Attorney General of the State of Texas, including the printing and
supply of definitive Bonds, -arid- shall take and have charge and
control of the Initial Bonds pending the approval thereof by the
Attorney General, the regis~r~tion thereof by the comptroller of
Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Mayor, Mayor Pro Tern, City Secretary, City
Manager, Assistant City Manager and Director of Finance, anyone
or more of said officials; are hereby authori~ed and directed to
furnish and execute such documents and certifications relating to
the City and the issuance of the Bonds, including certifications
as to facts, estimates, circumstances and reasonable expectations
pertaining to the use, expenditure and investment of the proceeds
of the Bonds, as may be necessary for the approval of the Attorney
General, the registration by the Comptroller of Public Accounts
0147010
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and the delivery of the Bonds to the Purchasers, and, together
with the City's financial advisor, bond counsel and the Paying
Agent/Registrar, make the necessary arrangements for the delivery
of the Initial Bond(s} to the Purchasers and the initial exchange
thereof for definitive Bonds.
SECTION 22: 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) 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 a~d deposited for payment of costs
of issuance and deposited in the Bond Fund.
SECTION 23: Leoal 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 24: Incorporation of Findinos and Determinations.
The findings and determinations of the City Council contained in
the preamble hereof are hereby incOiP'orated by reference and made
a part of this Ordinance for all purposes as if the same were
restated in full in this Section.
SECTION 25: Amendments fa Ordinance Uoon Discharoe of
previouslv Issued Bonds. At sueh time as the Series 1975, Series
1975-A, Series 1981 and Ser.fes 1987 Previously Issued Bonds
identified in section 10 have been paid or are no longer
Outstanding, the sections '1~~\.12, 13, 14, 15, 16, 17, 18, 19, 20,
22 and 25 of this Ordinance shall be amended and modified, merged,
consolidated and otherwise modified in the manner and as provided
in section 41 of Ordinance No. 0-89-733, finally adopted on
August 15, 1989, authorizing the issuance of "City of Colleyville,
Texas, Waterworks and Sewer, System Revenue Refunding Bonds, Series
1989", which section 41 is hereby incorporated by reference and
made a part hereof for all purposes as of such section was
restated in full as a part hereof.
SECTION 26: Public Meetino. It is officially found,
determined, and declared that the meeting at which this Ordinance
0147010
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....----...-,----------..------------...-.
"'T"
.,.--...........-----..--..-..-.---..
is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered
at such meeting, including this Ordinance, was given, all as
required by V.T.C.A., Government Code, Chapter 551, as amended.
SECTION 27 : 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 1, 1994.
SECOND READING, February 15, 1994.
THIRD AND FINAL READING, PASSED AND ADOPTED March 1, 1994.
'!
CITY OF COLLEYVILLE, TEXAS
TABLED, MARCH 15,1994
Mayor
ATTEST:
City Secretary
(City Seal)
APPROVED AS TO FORM:
J.~,.;,}f"
C\~y Attorney
~.
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t ...J~ \
0147010
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"-'r-'~'
.- --....-.-.-.--.--,-----.--..
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of
"Agreement"), by and between the city of
"Issuer"), and NationsBank of Texas, N.A.,
association duly organized and existing
united States of America, (the "Bank").
March 1, 1994 (this
Colleyville, Texas (the.
Dallas, Texas, a banking
under the laws of the
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the
issuance of its "City of Colleyville, Texas, Waterworks and Sewer
System Revenue Refunding Bonds, Series 1994" (the "Securities"),
dated March 1, 1994, which Securities are scheduled to be delivered
to the initial purchasers on or ~bout April 5, 1994; and
WHEREAS, the Issuer has selected the Bank and the Bank has
agreed to serve as Paying Agent/Registrar for 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 represents it 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
., ft-
.>'.';
Section 1.01. Appointment. The Issuer hereby appoints the
Bank to serve as Paying Agent w~th 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 Res<<)lution" (hereinafter defined). The
Issuer hereby appoints the Bank as Registrar with respect to the
Securities and, as Registrar for the Securities, the Bank shall
keep and maintain for and on behalf of the Issuer books and records
as to the ownership of said Securities and with respect to the
transfer and exchange thereof as provided herein and in the "Bond
Resolution". The Bank hereby accepts its appointment, and agrees
to serve as the Paying Agent and Registrar for the Securities.
Section 1.02. 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.
In addition, the Issuer agrees to reimburse the Bank upon its
request for all reasonable expenses, disbursements and advances
0146343
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 ~nd payable on any Security which
has become accelerated pursuant to the terms of the Security.
"Bank Office" means the offices of the Bank located in
Atlanta, Georgia at the address appearing in section 3.01
hereof. The Bank will notify the Issuer in writing of any
change in location of the Bank Office.
"Bond Resolution" means the resolution, order, or
ordinance of the governing body of the Issuer pursuant to
which the Securities are issued, certified by the Secretary or
any other officer of the Issuer and delivered to the Bank.
"Fiscal Year" means the fiscal year of the Issuer, ending
september 30th.
"Holder" and "security a&Cler" each means .the Person in
whose name a Security is registered in the Security Register.
"Issuer Request" anct "Issuer Order" means a written
request or order signed qn the name of the Issuer by the
Mayor, City Secretary, ci~y Manager and Director of Finance,
anyone or more of said offi~ials, and delivered to the Bank.
- !J.~',
"Legal Holiday" means a day on which the Bank is required
or authorized to be closed.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision of a government.
"Predecessor Securities" of any particular security means
every previous Security evidencing all or a portion of the
same obligation as that evidenced by such particular Security
(and, for the purposes of this definition, any mutilated,
lost, destroyed, or stolen Security for which a replacement
0146343
-2-
EXHiB!T A
---. --,-~'-----'
Security has been registered and delivered in lieu thereof
pursuant to section 4.06 hereof and the Resolution).
"Redemption Date" when used with respect to any security.
to be redeemed means the date fixed for such redemption
pursuant to the terms of the Bond Resolution.
"Responsible Officer" when used with respect to the Bank
means the Chairman or Vice-Chairman of the Board of Directors,
the Chairman or Vice-Chairman of the Executive Committee of
the Board of Directors, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer, the Cashier, any Assistant Cashier, any
Trust Officer or Assistant Trust Officer, or any other officer
of the Bank customarily performing functions similar to those
performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Security Register" means a register maintained by the
Bank on behalf of the Issuer providing for the registration
and transfers of Securities.
"Stated Maturity" means the date specified in the Bond
Resolution the principal of a. security is scheduled to be due
and payable.
section 2.02. Other Definitions. The terms "Bank," "Issuer,"
and "Securities (Security)" have 1:hEtmeanings assigned to them in
the recital paragraphs of this Agreement.
The term "paying Agent/Re~strar" refers to the Bank in the
performance of the duties and !unctions of this Agreement.
fr
. -. I _
ART I CLE THREE
'PNYING AGENT
section 3.01. Duties of pavinq Aqent. As Paying Agent, the
Bank shall, provided adequate collected funds have been provided to
it for such purpose by or on behalf of the Issuer, pay on behalf of
the Issuer the principal o~ each Security at its Stated Maturity,
Redemption Date, or Acceleration Date, to the Holder upon surrender
of the Security to the Bank at the following address:
NationsBank Trust
Midtown Center
715 Peachtree Street, N.E.
7th Floor
Atlanta, Georgia 30308-1297
0146343
-3-
EXHIBIT A
1 .
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 pai~
each Holder and making payment thereof to the Holders of the
Securities (or their Predecessor Securities) on the Record Date.
All payments of principal and/or interest on the Securities to the
registered owners shall be accomplished (1) by the issuance of
checks, payable to the registered owners, drawn on the fiduciary
account provided in section 5.05 hereof, sent by united States
mail, first class, postage prepaid, to the address appearing on the
Security Register or (2) by such other method, acceptable to the
Bank, requested in writing by the Holder at the Holder's risk and
expense.
.
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer the principal of each
Security at its Stated Maturity, Redemption Date, or Acceleration
Date, to the Holder upon surrender of the Security to the Bank at
the Bank Office.
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer the interest on each
security when due, by computing the amount of interest to be paid
each Holder and making payment .thereof to the Holders of the
Securities (or their Predecessor Securities) on the Record Date.
All payments of principal and/or interest on the Securities to the
registered owners shall be accomplished (1) by the issuance of
checks, payable to the registere~:~wners, 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 ~he Holder at the Holder's risk and
expense.~
,=. " -
section 3.02. Payment Dates. The Issuer hereby instructs the
Bank to pay the principal u~;~nd interest on the Securities at the
dates specified in the Bopd Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01. Security Reqister - Transfers and Exchanqes.
The Bank agrees to keep and maintain for and on behalf of the
Issuer at the Bank Office books and records (herein sometimes
referred to as the "Security Register") for recording the names and
addresses of the Holders of the Securities, the transfer, exchange
and replacement of the Securities and the payment of the principal
of and interest on the Securities to the Holders and containing
such other information as may be reasonably required by the Issuer
0146343
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t lUll
and subject to such reasonable regulations as the Issuer and Bank
may prescribe. All transfers, exchanges and replacement of
Securities shall be noted in the Security Register. The Bank
represents and warrants its office in Dallas, Texas will at all.
times have immediate access to the Security Register by electronic
or other means and will be capable at all times of producing a hard
copy of the Security Register at its Dallas office for use by the
Issuer. All transfers, exchanges and replacement of Securities
shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer, the signature on which has been guaranteed by an officer
of a federal or state bank or a member of the National Association
of Securities Dealers, in form" satisfactory to the Bank, duly
executed by the Holder thereof or his agent duly authorized in
writing.
The Bank may request any supporting documentation it feels
necessary to effect a re-registration, transfer or exchange of the
Securities.
To the extent possible and under reasonable circumstances, the
Bank agrees that, in relation to an exchange or transfer of
Securities, the exchange or transfer by the Holders thereof will be
completed and new Securities delivered to the Holder or the
assignee of the Holder in not more than three (3) business days
after the receipt of the Securities to be cancelled in an exchange
or transfer and the written instrument of transfer or request for
exchange duly executed by the Holder,. or his duly authorized agent,
in form and manner satisfactory tG:fhe paying Agent/Registrar.
Section 4.02. certificates.' The Issuer shall provide an
adequate inventory of printed Ses;:urities to facilitate transfers or
exchanges thereof. The Bank~.<t:ovenants that the inventory of
printed Securities will be kept in safekeeping pending their use
and reasonable care will be ~~r~ised 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.
0146343
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EXHiCiT A
..--..... "r"-'~"-"------"-"'--"-'--'-"'---"----""'--"-- '._. ---...--....-."
.----...... ..r--------.
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
.. r .
Secur1ty Reg1ster to any person other than to, or at the wr1tten
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. Destroved. Lost or Stolen Securi-
ties. The Issuer hereby instructs the Bank, subj ect to the
provisions of the Bond Resolution,~:e~' 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~e mutilated, or destroyed, lost or
stolen, the Bank may execute arid 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 tneft 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.
0146343
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. r'---"'~'-"-""~--"---"'''--'---'''-----'~-'''' . "'T-'"
complete authorization and protection with respect to any action
taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(f) The Bank may exercise any of the powers hereunder and
perform any duties hereunder either directly or by or through
agents or attorneys of the Bank.
section 5.03. Recitals of Issuer. The recitals contained
herein with respect to the Issuer and in the Securities shall be
taken as the statements of the Issuer, and the Bank assumes no
responsibility for their correctness.
The Bank shall in no event be liable to the Issuer, any Holder
or Holders of any Security, or any other Person for any amount due
on any Security from its own funds.
section 5.04. Mav 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. Monevs Held bv Bank - Fiduciarv Account/
Collatera1ization. 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 secl:lrities or obligations which
qualify and are eligible under botQ;~ehe 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 Fed~ral Deposit Insurance corporation.
Payments made from such trust abcount shall be made by check drawn
on such trust account unless thaowner of such Securities shall, at
its own expense and risk, reqUest such other medium of payment.
The Bank shall be underJrtp liability for interest on any money
recei ved by it hereunder. ..
Subject to the applicable unclaimed property laws of the state
of Texas, any money deposited with the Bank for the payment of the
principal, premium (if any), or interest on any Security and
remaining unclaimed for' four years after final maturity of the
Security has become due and payable will be paid by the Bank to the
Issuer, and the Holder of such Security shall thereafter look only
to the Issuer for payment thereof, and all liability of the Bank
with respect to such moneys shall thereupon cease.
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
0146343
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AniLi j 11
. ''''-'''''''r-.''--
. ._,. -,_.._~.,_._._--,.-.,,-,- ,
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. Interoleader. The Issuer and the Bank agree
that the Bank may seek adjudication of any adverse claim, demand,
or controversy over its person as well as funds on deposit, in
either a Federal or State District Court located in the State and
County where either the Bank Office or the administrative offices
of the Issuer is located, and agree that service of process by
certified or registered mail, return receipt requested, to the
address referred to in section 6.03 of this Agreement shall
constitute adequate service. The Issuer and the Bank further agree
that the Bank has the right to file a Bill of Interpleader in any
court of competent jurisdiction to determine the rights of any
Person claiming any interest herein.
Section 5.08. DT Services. It is hereby represented and
warranted that, in the event the Securities are otherwise qualified
and accepted for "Depository Trust Company" services or equivalent
depository trust services by other organizations, the Bank has the
capability and, to the extent within its control, will comply with
the "Operational Arrangements", effective August 1, 1987, which
establishes requirements for securities to be eligible for such
type depository trust services, including, but not limited to,
requirements for the timeliness of 'payments and funds availability,
transfer turnaround time, and notification of redemptions and
calls.
~ ',..: ~:^
'.
Section 6.01.
by an agreement in
ARTICLE SIX
MISCELLANEOUS PROVISIONS
{"
Amendment .~. This Agreement may be amended only
writing signed by both of the parties hereto.
Section 6.02. Assiqnment. This Agreement may not be assigned
by either party without t~e prior written consent of the other.
Section 6.03. Notices. Any request, demand, authorization,
direction, notice, consent, waiver, or other document provided or
permitted hereby to be given or furnished to the Issuer or the Bank
shall be mailed or delivered to the Issuer or the Bank,
respectively, at the addresses shown on page 11.
Section 6.04. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
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EXhiJi I A
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 tv. 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. Benef its of Aqreement. Nothing herein, express
or implied, shall give to any Person, other than the parties hereto
and their successors hereunder, any benefit or any legal or
equitable right, remedy, or claim hereunder.
. . r .
Sectlon 6.08. Entlre Aqreement. ThlS 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. Counteroarts. 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 si~ty (60) days written notice;
provided, however, an early termina~~n 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 appoiniment 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 ~aymenb'of the Securities.
Upon an early termination of this Agreement, the Bank agrees
to promptly transfer and deliver the Security Register (or a copy
thereof), together with other'pertinent books and records relating
to the Securities, to 'the successor Paying Agent/Registrar
designated and appointed by the Issuer.
The provisions of Section 1.02
survive and remain in full force
termination of this Agreement.
and of Article Five shall
and effect following the
Section 6.11. Governinq Law. This Agreement shall be
construed in accordance with and governed by the laws of the State
of Texas.
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-'_.-'"'-I~__'_____'_~__~__'"'..''_'_..''.''.''''_''' ,- "".'T- ,-- -"'_"-"-~"--~-__-r--_M"H__"___'-'~--~-~~'~----'~--'~,,'"._--"~~'._""'~
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
NATIONSBANK OF TEXAS, N.A.
BY
Title:
[SEAL]
Attest:
Address: P. O. Box 831402
Dallas, Texas 75283-1402
Title:
,
CITY OF COLLEYVILLE, TEXAS
BY
Mayor
(CITY SEAL)
Attest:
Address: 5400 Bransford Road
Colleyville, Texas 76034
City Secretary
.. ~~"':.w t!.
.
~. .
-.
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0146343
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EXHiul r A
EXHiBIT C
SPECIAL ESCROW AGREEMENT
THE STATE OF TEXAS
COUNTY OF DALLAS
s
s
s
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 NationsBank of Texas, N.A., 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"), r
WIT N E SSE T H :
WHEREAS, the City has duly issued certain obligations now
outstanding in the aggregate amount $1,500,000 (hereinafter
collectively referred to as the "Refunded Obligations") and more
particularly described as follows:
(1) City of Colleyville, Texas,
Waterworks and Sewer System Revenue Bonds,
Series 1987, dated March 1, 1987, maturing on
January 1 in each of the years 1999 through
2007, and aggregating in principal amount
$ 990,000
(2) City of Colleyville, Texas,
Waterworks and Sewer system:,:..itevenue Bonds,
Series 1989, dated August 1, '1989, maturing on
January 1 in each of the years 2001 through
2010, and aggregating in grincipal amount $ 510,000
~. -.
WHEREAS, in accordance with the provisions of Article 7l7k,
V.A.T.C.S., as amended (the "Act'!), the City is authorized to sell
refunding bonds in an amount sufficient to provide for the payment
of obligations to be refunded, deposit the proceeds of such
refunding bonds with any place of payment for the obligations being
refunded and enter into an escrow or similar agreement with such
place of payment for the safekeeping, investment, reinvestment,
administration and disposition of such deposit, upon such terms and
conditions as the parties may agree, provided such deposits may be
invested only in direct .obligations of the United States of
America, including obligations the principal of and interest on are
unconditionally guaranteed by the United States of America,
(hereinafter called the "Federal Securities") that mature and/or
bear interest payable at such times and in such amounts as will be
0146372
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 Colleyvi11e, Texas, Waterworks and Sewer System Revenue Bonds,
Series 1994" (the "Bonds"), and such Bonds are being issued to
refund, discharge and make final payment of the principal of and
interest on the Refunded Obligations; and
WHEREAS, upon the delivery of the Bonds, the proceeds of sale,
together with other available funds of the City, are to be
deposited with the Bank and used in part to purchase the Federal
Securities listed and identified in Exhibit B attached hereto and
incorporated by reference as a part of this Agreement for all
purposes; and
WHEREAS, the Federal Securities shall be held and deposited to
the credit of the "Escrow Fund" to be established and maintained by
the Bank in accordance with this ~greement; 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 ~~es 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 tRe Refunded Obligations and as set
forth in Exhibit A attached he~eto; and
,=, " ~
WHEREAS, the City has completed all arrangements for the
purchase of the Federal SeiNrities listed in Exhibit B and the
deposit and credit of the same to the Escrow Fund as provided
herein; and
WHEREAS, the Bank is a national banking association organized
and existing under the 1~ws of the united states of America,
possessing trust powers 'and is fully qualified and empowered to
enter into this Agreement; and
WHEREAS, in Section 20 of the Bond Ordinance, the City Council
duly approved and authorized the execution of this Agreement; and
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EXHIBIT C
..-.---1-.-------...--...--..
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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 th~
ordinances authorizing the Refunded Obligations, the Act, the Bond
Ordinance and this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and to secure the payment of the principal of and
the interest on the Refunded Obligations as the same shall become
due, the city and the Bank hereby mutually undertake, promise and
agree as follows:
SECTION 1: Receipt of Refunded Bond Ordinances. Receipt
of copies of the ordinances authorizing the issuance of the
Refunded Obligations and the Bond Ordinance are hereby acknowledged
by the Bank. Reference herein to or citation herein of any
provision of said documents shall be deemed an incorporation of
such provision as a part hereof in the same manner and with the
same effect as if it were fully set forth herein.
SECTION 2: Escrow Fund Creation/Fundinq. There is hereby
created by the City with the Bank a special segregated and
irrevocable trust fund designated "SPECIAL 1994 CITY OF
COLLEYVILLE, TEXAS, REVENUE REFUNDING BOND ESCROW FUND"
(hereinafter called the "Escrow Fund") for the benefit of the
holders of the Refunded Obligation~, and, immediately following the
delivery of the Bonds, the city agrees and covenants to cause to be
deposited with the Bank the following amounts:
$
for the purchase of Federal Securities
identified in Exhibit B to be held for the
account of the Escrow Fund
$
, ,
for deposit~in the Escrow Fund as a
beginning dash balance; and
,=, " -
The Bank hereby accepts the Escrow Fund and further agrees to
receive said moneys, apply.Jthe same as set forth herein, and to
hold the cash and Federal Securities deposited and credited to the
Escrow Fund for application and disbursement for the purposes and
in the manner provided in this Agreement.
SECTION 3: Escrow Fund Suff iciency 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
0146372
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c
"--T~-----'--'"
times and in the amounts set forth and identified in Exhibit A
attached hereto.
FURTHERMORE, the Bank acknowledges receipt of a copy of th~
resolution providing for the redemption of (i) series 1987 Refunded
Obligations on January 1, 1998 at the redemption price of par plus
accrued interest and (ii) Series 1989 Refunded Obligations on
January 1, 2000 at the redemption price of par plus accrued
interest; all in accordance with the provisions of the 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 Agree~ent.
SECTION 5: Escrow Insuff iciencv - ci tv Warrantv to Cure. If,
for any reason, the funds on hand. in the Escrow Fund shall be
insufficient to make the payments-.sgt 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 amou~ts required to make such payments.
Notice of any such insufficiendY: shall be immediately given by the
Bank to the City by the fastest1'means possible, but the Bank shall
in no manner be responsible .for-the City's failure to make such
deposits.
f ,J;'
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
0146372
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EXhiBIT C
....., .',-.------.-.-....
. --~_._-_..,.._'_.._-_.,._.._--_._--_._..__.,.
._..,-----~---'------_...._--_._...._._--_.
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 ~ay 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 R~funded 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 red~~ption date, in trust for the
benefit of the holder of such .IRe~unded 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 req\J."ired by the provisions hereof to be
set aside or held in trust ~for the payment of the Refunded
Obligations, including intere~t~thereon, shall be applied to and
used solely for the payment of the Refunded Obligations and
interest thereon with respect to which such cash has been so set
aside in trust. .
Subject to the provisions of the last sentence of section 25
hereof, cash held by tl;e Bank in trust for the payment and
discharge of any of the Re~unded 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.
0146372
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EXHIBIT (;
......._._...,..-.._~_..__.._--_...__...--r--.__.__.
..... ..--_.-.~"_."--r---._-'--------_.'--_.-..'_.-
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 City r and the owners of the Refunded
Obligations shall be entitled to a preferred claim and shall have
a first lien upon such funds and Federal Securities enjoyed by a
trust beneficiary. The funds and Federal Securities received by
the Bank under this Agreement shall not be considered as a banking
deposit by the City and the Bank and the City shall have no right
or title with respect thereto, except as otherwise provided herein.
Such funds and Federal Securities shall not be subject to checks or
drafts drawn by the City.
SECTION 10: Absence of Bank Claim/Lien on Escrow Fund.
The Bank shall have no lien whatsoever upon any of the moneys or
Federal Securities in the Escro~ 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,', ci ty .
. :'} ."
SECTION 11: Substitution of'Investments/Reinvestments. The
Bank shall be authorized to accept initially and temporarily cash
and/or substituted securities pending the delivery of the Federal
Securities identified in the E~1bit B attached hereto, or shall be
authorized to redeem the Fed~ral 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:
0146372
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EXHiBIT C
...-- "'T'-"~"'-~----"" -----.-........--.-----r-..-......-.
T..---.......
(1) an oplnlon 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 rObligations which have not
previously been paid, and
(2) wi th respect to an early redemption of Federal
Securities and the reinvestment of the proceeds thereof,
an unqualified opinion of nationally recognized
municipal bond counsel to the effect that (a) such
investment will not cause interest on the Bonds or
Refunded Obligations to be included in the gross income
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..~hds.
SECTION 12: Restriction on Escrow Fund Investments -
Reinvestment. Except as pro~;i.ded in Section 11 hereof,
moneys in the Escrow Fund wiU1. be invested only in the
Federal Securities listed in EXhibit B and neither the City
nor the Bank shall reinvest=.'an?{ moneys deposited in the
Escrow Fund except as specifically provided by this
Agreement. ' . J' '.
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 forth'e 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:
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(1) an opinion by an independent certified public
accountant that after the transfer of such excess, the
principal amount of securities in the Escrow Fund,
together with the interest thereon and other available
monies then held in the Escrow Fund, will be sufficient
to pay, as the same become due, in accordance with
Exhibit A, the principal of, and interest on, the
Refunded Obligations which have not previously been
paid, and
(2) an unqualified opinion of nationally
recognized municipal bond counsel to the effect that (a)
such transfer will not cause interest on the Bonds or
the Refunded Obligations to be included in gross income
. r
for federal lncome tax purposes, under the Code and
related regulations as in effect on the date of such
transfer, or otherwise make the interest on the Bonds or
the Refunded Obligations subj ect 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 BankAs}Liabilitv for Investments.
The Bank shall not be liable or responsible for any loss resulting
from any investment made in the Federal Securities or substitute
securities as provided in Section 11 hereof.
~. .
SECTION 16: Bank's Compensation - Escrow Administration/
Settlement of pavinq Aqent's Crrar~es. The City agrees to pay the
Bank for the performance of services hereunder and as
reimbursement for anticipated expenses to be 'incurred hereunder
the amount of $. and, except for reimbursement of
costs and expenses incurred by the Bank pursuant to sections 3, 11
and 19 hereof, the Bank hereby agrees said amount is full and
complete payment for the ~dministration of this Agreement.
The city also agrees to deposit with the Bank on the
effective date of this Agreement, the sum of $ 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
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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 / Responsibilitiesl
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.
.i.. "..~
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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 ~he performance of such duties and
obligations as are specificallr'set forth in this Agreement, and
no implied covenants or obliqations 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.
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The Bank shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Bank
unless it shall be proved that the Bank was negligent in
ascertaining or acting upon the pertinent facts.
The Bank shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in aggregate
principal amount of all said Refunded Obligations at the time
outstanding relating to the time, method and place of conducting
any proceeding for any remedy available to the Bank not in
conflict with the intent and purpose of this Agreement. For the
purposes of determining whether the holders of the required
principal amount of said Refunded Obligations have concurred in
any such direction, Refunded obligations owned by any obligor upon
the Refunded Obligations, or by any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such obligor, shall be disregarded, except that for
the purposes of determining whether the Bank shall be protected in
relying on any such direction only Refunded Obligations which the
Bank knows are so owned shall be so disregarded.
The term "Responsible Officers" of the Bank, as used in this
Agreement, shall mean and include the Chairman of the Board of
Directors, the President, any Vice President and any Second Vice
President, the Secretary and any Assistant Secretary, the
Treasurer and any Assistant Treasurer, and every other officer and
assistant officer of the Bank customarily performing functions
similar to those performed by the persons who at the time shall be
officers, respectively, or to whom any corporate trust matter is
referred, because of his knowledgk'''' of and familiarity with a
particular subject; and the term "Responsible Officer" of the
Bank, as used in this Agreement, shall mean and include any of
said officers or persons. ~
~. .
SECTION 18: Limitation Re: Bank's Duties/Responsibilities/
Liabilities to Third Parties~~C'The Bank shall not be responsible
or liable to any person in any manner whatever for the
sufficiency, correctness, gen~ineness, 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
0146372
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such assignment or attempted assignment shall be in direct
conflict with this Agreement and be without effect.
SECTION 19: Interpleader. In the event conflicting demands
or notices are made upon the Bank growing out of or relating to
this Agreement or the Bank in good faith is in doubt as to what
action should be taken hereunder, the Bank shall have the right at
its election to:
(a) Withhold and stop all further proceedings in,
and performance of, this Agreement with respect to the
issue in question and of all instructions received
hereunder in regard to such issue; and
(b) File a suit in rinterpleader and obtain an
order from a court of appropriate jurisdiction requiring
all persons involved to interplead and litigate in such
court their several claims and rights among themselves.
In the event the Bank becomes involved in litigation in
connection with this section, the City, to the extent permitted by
law, agrees to indemnify and save the Bank harmless from all loss,
cost, damages, expenses and attorney fees suffered or incurred by
the Bank as a result thereof. The obligations of the Bank under
this Agreement shall be performable at the corporate office of the
Bank in the city of 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 ~~t 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: Accoun1lina - Annual Report. Promptly after
September 30th of eacli 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.
0146372
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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
NATIONSBANK OF TEXAS, N.A.
r
P. O. Box 831402
Dallas, Texas 75283-1402
Attention: Corporate Trust Department
The united States Post Office registered or certified mail receipt
showing delivery of the aforesaid shall be conclusive evidence of
the date and fact of delivery.
Any party hereto may change the address to which notices are
to be delivered by giving to the other parties not less than ten
(10) days prior notice thereof.
SECTION 22: Performance Date. Whenever under the terms of
this Agreement the performance date of any provision hereof,
including the date of maturity of ~~~terest 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 Obli~ations, 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,saall accrue for the period after such
date.
SECTION 23: Warranty of Parties Re: Power to Execute and
Deliver Escrow Aqreement. The City covenants that it will
faithfully perform at 'all times any and all covenants,
undertakings, stipulations and provisions contained in this
Agreement, in any and every said Refunded Obligation as executed,
authenticated and delivered and in all proceedings pertaining
thereto as said Refunded Obligations shall have been modified as
provided in this Agreement. The City covenants that it is duly
authorized under the Constitution and laws of the State of Texas
0146372
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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: Severabilitv. If anyone or more of the
covenants or agreements provided in this Agreement on the part of
the parties to be performed should be determined by a court of
competent jurisdiction to be contrary to law, such covenant or
agreement shall be deemed and construed to be severable from the
remaining covenants and agreements herein contained and shall in
no way affect the validity of the remaining provisions of this
Agreement. In the event any covenant or agreement contained in
this Agreement is declared to be severable from the other
provisions of this Agreement, written notice of such event shall
immediately be given to each national rating service (Moody's
Investors Service, Standard & Poor's Corporation or Fitch
Investors Service) which has rated the Refunded obligations on the
basis of this Agreement.
SECTION 25: Termination. This Agreement shall terminate
when the Refunded Obligations, including interest due thereon,
have been paid and discharged in accordance with the provisions of
this Agreement. If any Refunded Obligations are not presented for
payment when due and payable, the nonpayment thereof shall not
prevent the termination of this Agreement. Funds for the payment
of any nonpresented Refunded Obligations and accrued interest
thereon shall upon termination of. .t.n:is 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 ~he payment of the principal of or
interest on any of the Refuncied Obligations shall be paid or
transferred to the City. ~
.~. "
SECTION 26: Time of the Essence. Time shall be of the
essence in the performanc~; '.of obligations from time to time
imposed upon the Bank'by ~his 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
0146372
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.. 'r'..-----...............-.-.. .. ......-.........---....-.--
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 ~gent 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 tha~:' 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 uider the laws of the united States
or the State of Texas, having ~ts principal office and place of
business in the State of Te~as~ having a combined capital and
surplus of at least $5,000,000 and be subject to the supervision
or examination by Federal ,0:J,'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
0146372
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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 City, the Bank and their respective successors and legal
representatives. Furthermore, no alteration, amendment or
modification of any provision of this Agreement shall (1) alter
the firm financial arrangements made for the payment of the
Refunded Obligations or (2) be effective unless (i) prior written
consent of such alteration, amendment or modification shall have
been obtained from the holders of all Refunded Obligations
outstanding at the time of such alteration, amendment or
modification and (ii) such alteration, amendment or modification
is in writing and signed by the parties hereto; provided, however,
the City and the Bank may, without the consent of the holders of
the Refunded Obligations, amend or modify the terms and provisions
of this Agreement to cure in a manner not adverse to the holders
of the Refunded Obligations any ambiguity, formal defect or
omission in this Agreement. If the parties hereto agree to any
amendment or modification to this Agreement, prior written notice
of such amendment or proposed modification, together with the
legal documents amending or mOdifying this Agreement, shall be
furnished to each national rating service (Standard & Poor's
Corporation, Moody's Investors Service or Fitch Investors Service)
which has rated the Refunded Obligations on the basis of this
Agreement, prior to such amendment or. modification being executed.
. -.:;,::.
SECTION 29: Effect of Headincis. The section headings herein
are for convenience only and shall not affect the construction
hereof.
~.
SECTION 30: Executed Counterparts. This Agreement may be
executed in several counterpavts, all or any of which shall be
regarded for all purposes as one original and shall constitute and
be but one and the same, i~strument. This Agreement shall be
governed by the laws af the State of Texas and shall be effective
as of the date of the delivery of the Bonds.
0146372
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IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be executed by their duly authorized officers and
their corporate seals to be hereunto affixed and attested as of
the date first above written.
CITY OF COLLEYVILLE, TEXAS
ATTEST:
Mayor
City Secretary
.
(City Seal)
NATIONSBANK OF TEXAS, N. A.,
Dallas, Texas,
as Escrow Agent
ATTEST:
Title:
Authorized Signer
(Bank Seal)
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0146372
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