HomeMy WebLinkAboutColleyville Economic Development Corporation (CEDC) Resolutions (R-00-34)-01/07/2000
RESOLUTION NO. I(-()() ~3Lf
A RESOLUTION authorizing the issuance of "COLLEYVILLE ECONOMIC
DEVELOPMENT CORPORATION SALES TAX REVENUE BONDS,
SERI ES 2000"; pledging certain "Pledged Revenues" of the Corporation,
including "Gross Sales Tax Revenues", to the payment of the principal of
and interest on said Bonds and enacting other provisions incident and
related to the issuance, payment, security and delivery of said bonds,
including the approval of a Paying Agent/Registrar Agreement and a
Financing/Use Agreement with the City, and resolving other matters
incident and related to the issuance and sale of the Bonds.
WHEREAS, the Board of Directors of the Colleyville Economic Development Corporation
(the "Corporation") hereby finds and determines that $2,140,000 in principal amount of bonds
should be issued at this time to finance the costs of the construction and equipment of a
municipal building (a new city hall), including the purchase of land therefor (the "Projects"); and
WHEREAS, a public hearing was duly held and conducted on March 21, 2000 by the
Board of Directors regarding the Corporation's intention to participate in the Projects and notice
of such public hearing was published on , 2000 in the Colleyville News, a
newspaper of general circulation in the City of Colle ville, Texas; and
WHEREAS, the Board of Directors has further determined and hereby finds that the
Projects to be financed by the issuance of the bonds are for and on behalf of the City of
Colleyville, Texas, and the principal amount of such bonds and other obligations of the
Corporation payable in whole or in part from the "Gross Sales Tax Revenues" (hereinafter
defined), together with the amount of the costs of other projects (other than such bonds and
other obligations) for which payments to be made in cash directly from such "Gross Sales Tax
Revenues" do not, in the aggregate, exceed $135,000,000; now, therefore,
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE COLLEYVILLE
ECONOMIC DEVELOPMENT CORPORATION:
SECTION
Authorization - DesiQnation - Principal Amount - Purpose. Bonds of the Corporation
shall be and are hereby authorized to be issued in the aggregate principal amount of
$2,140,000 to be designated and bear the title "COLLEYVILLE ECONOMIC DEVELOPMENT
CORPORATION SALES TAX REVENUE BONDS, SERIES 2000", hereinafter referred to as the
"Bonds" to finance the construction and equipment of a municipal building (a new city hall),
including the purchase of land therefor, in conformity with the Constitution and laws of the State
of Texas, including Vernon's Ann. Civ. Stat., Section 4B of Article 5190.6.
1. SECTION Fullv ReQistered ObliQations - Authorized Denominations - Stated
Maturities - Date. The Bonds shall be issued as fully registered obligations, without coupons,
shall be dated March 15, 2000 (the "Issue Date") and 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 annually on February 15 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:
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31. The Bonds shall bear interest on the unpaid principal amounts from the Issue Date at the
per annum rates shown above (calculated on the basis of a 360-day year of twelve 30-day
months). Interest on the Bonds shall be payable on February 15 and August 15 in each year,
commencing August 15, 2000.
32.
33. SECTION Terms of Payment - PayinQ AQent/ReQistrar. The principal of, and the
interest on the Bonds, due and payable by reason of maturity, redemption or otherwise, shall be
payable only to the registered owners or holders of the Bonds (hereinafter called the "Holders")
appearing on the registration and transfer books maintained by the Paying Agent/Registrar and
the payment thereof shall be in any coin or currency of the United States of America, which at
the time of payment is legal tender for the payment of public and private debts, and shall be
without exchange or collection charges to the Holders.
34. The selection and appointment of The Bank of New York, New York, New York, to serve
as Paying Agent/Registrar for the Bonds is hereby approved and confirmed. Books and records
relating to the registration, payment, exchange and transfer of the Bonds (the "Security
Register") shall at all times be kept and maintained on behalf of the Corporation by the Paying
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Stated Maturity
Principal
Amount
Interest
Rates
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
2024
$ 15,000
20,000
25,000
30,000
30,000
30,000
35,000
35,000
40,000
40,000
40,000
45,000
45,000
50,000
50,000
55,000
55,000
55,000
60,000
60,000
60,000
65,000
580,000
620,000
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
%
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 Corporation may
prescribe. The President of the Board of Directors and Secretary of the Corporation are hereby
authorized to execute and deliver such Agreement in connection with the delivery of the Bonds.
The Corporation covenants to maintain and provide a Paying Agent/Registrar at all times until
the Bonds are paid in full and discharged. 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 Corporation agrees to promptly cause a written
notice to be sent to the Holder affected by United States Mail, first class postage prepaid, which
notice shall identify and give the address of the new Paying Agent/Registrar.
35.
36. Principal of and premium, if any, on the Bonds shall be payable at the Stated Maturities
or upon their earlier redemption, only upon presentation and surrender of the Bonds to the
Paying Agent/Registrar at its designated offices in Houston, Texas (the "Designated
PaymentlTransfer Office"). Interest on the Bonds shall be paid to the Holders whose name
appear in the Security Register at the close of business on the Record Date (the last business
day of the month next preceding each interest payment date) and shall be paid by the Paying
Agent/Registrar (i) by check sent United States Mail, first class postage prepaid, to the address
of the Holder recorded in the Security Register or (ii) by such other method, acceptable to the
Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder. If the date for
the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday, a legal
holiday, or a day when banking institutions in the city where the Designated PaymentlTransfer
Office of the Paying Agent/Registrar is located is authorized by law or executive order to close,
then the date for such payment shall be the next succeeding day which is not such a Saturday,
Sunday, legal holiday, or day when banking institutions are authorized to close; and payment on
such date shall have the same force and effect as if made on the original date payment was
due.
37.
38. 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 Corporation. 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.
39.
40. SECTION Redemption. (a) Optional Redemption. The Bonds maturing on and after
February 15, 2010 shall be subject to redemption prior to maturity, at the option of the
Corporation, in whole or in part in principal amounts of $5,000 or any integral multiple thereof
(and if within a Stated Maturity by lot by the Paying Agent/ Registrar), on February 15, 2009 or
on any date thereafter at the redemption price of par plus accrued interest to the date of
redemption.
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41.
42. (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 Corporation shall notify the Paying Agent/Registrar of its decision to
exercise the right to redeem Bonds, the principal amount of each Stated Maturity to be
redeemed, and the date set for the redemption thereof. The decision of the Corporation to
exercise the right to redeem Bonds shall be entered in the minutes of the governing body of the
Corporation.
43.
44. (c) Selection of Bonds for Redemption. If less than all Outstanding Bonds of the same
Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar shall
treat such Bonds as representing the number of Bonds Outstanding which is obtained by
dividing the principal amount of such Bond by $5,000 and shall select the Bonds, or principal
amount thereof, to be redeemed within such Stated Maturity by lot.
45.
46. (d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date for
the Bonds, a notice of redemption shall be sent by United States Mail, first class postage
prepaid, in the name of the Corporation and at the Corporation's expense, to each Holder of a
Bond to be redeemed in whole or in part at the address of the Holder appearing on the Security
Register at the close of business on the business day next preceding the date of mailing such
notice, and any notice of redemption so mailed shall be conclusively presumed to have been
duly given irrespective of whether received by the Holder.
47.
48. All notices of redemption shall (i) specify the date of redemption for the Bonds, (ii)
identify the Bonds to be redeemed and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price,
(iv) state that the Bonds, or the portion of the principal amount thereof to be redeemed, shall
become due and payable on the redemption date specified, and the interest thereon, or on the
portion of the principal amount thereof to be redeemed, shall cease to accrue from and after the
redemption date, and (v) specify that payment of the redemption price for the Bonds, or the
principal amount thereof to be redeemed, shall be made at the Designated PaymentlTransfer
Office of the Paying Agent/ Registrar only upon presentation and surrender thereof by the
Holder. If a Bond is subject by its terms to prior redemption and has been called for redemption
and notice of redemption thereof has been duly given or waived as herein provided, such Bond
(or the principal amount thereof to be redeemed) shall become due and payable, and interest
thereon shall cease to accrue from and after the redemption date therefor, provided moneys
sufficient for the payment of such Bonds (or of the principal amount thereof to be redeemed) at
the then applicable redemption price are held for the purpose of such payment by the Paying
Agent/Registrar.
49.
50. SECTION 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 Resolution. Any Bond may, in accordance with its terms and the terms hereof, be
transferred or exchanged for Bonds of other authorized denominations upon the Security
Register by the Holder, in person or by his duly authorized agent, upon surrender of such Bond
to the Designated PaymentlTransfer Office of the Paying Agent/Registrar for cancellation,
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accompanied by a written instrument of transfer or request for exchange duly executed by the
Holder or by his duly authorized agent, in form satisfactory to the Paying Agent/Registrar.
51.
52. Upon surrender for transfer of a Bond at the Designated PaymentlTransfer Office of the
Paying Agent/Registrar, one or more new certificates evidencing the Bonds, in authorized
denominations, of like Stated Maturity and of a like aggregate principal amount as the Bond or
Bonds surrender for transfer shall be registered and issued to the assignee or transferee of the
previous Holders.
53.
54. At the option of the Holder, Bonds may be exchanged for other Bonds of authorized
denominations and having the same Stated Maturity, bearing the same rate of interest and of
like aggregate principal amount as the Bonds surrendered for exchange, upon surrender of the
Bonds to be exchanged at the Designated PaymentlTransfer Office of the Paying
Agent/Registrar. Whenever any Bonds are surrendered for exchange, the Paying
Agent/Registrar shall register and deliver new printed certificates evidencing the Bonds,
executed on behalf of, and furnished by, the Corporation, to the Holder requesting the
exchange.
55.
56. All Bonds issued upon any transfer or exchange of Bonds shall be delivered at the
Designated PaymentlTransfer 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 Corporation, evidencing the same obligation to pay, and entitled to the
same benefits under this Resolution, as the Bonds surrendered in such transfer or exchange.
57.
58. 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.
59.
60. Bonds canceled by reason of an exchange or transfer pursuant to the provisions hereof
are hereby defined to be "Predecessor Bonds," evidencing all or a portion, as the case may be,
of the same obligation to pay evidenced by the Bond or Bonds registered and delivered in the
exchange or transfer therefor. Additionally, the term "Predecessor Bonds" shall include any
mutilated, lost, destroyed, or stolen Bond for which a replacement Bond has been issued,
registered and delivered in lieu thereof pursuant to Section 26 hereof and such new
replacement Bond shall be deemed to evidence the same obligation as the mutilated, lost,
destroyed, or stolen Bond.
61.
62. SECTION Book-Entrv On Iv 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 Corporation hereby approves and authorizes the use of
"Book-Entry Only" securities clearance, settlement and transfer system provided by The
Depository Trust Company (DTC), a limited purpose trust company organized under the laws of
the State of New York, in accordance with the operational arrangements referenced in the
Blanket Issuer Letter of Representations, by and between the Corporation and DTC (the
"Depository Agreement") relating to the Bonds.
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63.
64. 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.
65.
66. 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 Corporation determines that DTC is incapable of properly
discharging its duties as securities depository for the Bonds, the Corporation covenants and
agrees with the Holders of the Bonds to cause Bonds to be printed in definitive form and provide
for the Bond certificates to be issued and delivered to DTC Participants and Beneficial Owners,
as the case may be. Thereafter, the Bonds in definitive form shall be assigned, transferred and
exchanged on the Security Register maintained by the Paying Agent/Registrar and payment of
such Bonds shall be made in accordance with the provisions of Sections 3, 4 and 5 hereof.
67.
68. SECTION Execution - ReQistration. The Bonds shall be executed on behalf of the
Corporation by its President of the Board of Directors of the Corporation under its seal
reproduced or impressed thereon and attested by the Secretary of the Corporation. 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 Corporation on
the Issue Date shall be deemed to be duly executed on behalf of the Corporation,
notwithstanding that such individuals or either of them shall cease to hold such offices at the
time of delivery of the Bonds to the initial purchasers and with respect to Bonds delivered in
subsequent exchanges and transfers.
69.
70. No Bond shall be entitled to any right or benefit under this Resolution, or be valid or
obligatory for any purpose, unless there appears on such Bond either a certificate of registration
substantially in the form provided in Section 9C, manually executed by the Comptroller of Public
Accounts of the State of Texas or his duly authorized agent, or a certificate of registration
substantially in the form provided in Section 90, manually executed by an authorized officer,
employee or representative of the Paying Agent/Registrar, and either such certificate upon any
Bond duly signed shall be conclusive evidence, and the only evidence, that such Bond has been
duly certified, registered and delivered.
71.
72. SECTION 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 multiple fully registered bonds, being one bond for each year of maturity
in the applicable principal amount and denomination and to be numbered consecutively from
T-1 and upward (hereinafter called the "Initial Bond(s)") and, in either case, the Initial Bond(s)
shall be registered in the name of the initial purchaser(s) or the designee thereof. The Initial
Bond(s) shall be the Bonds submitted to the Office of the Attorney General of the State of Texas
for approval, certified and registered by the Office of the Comptroller of Public Accounts of the
State of Texas and delivered to the initial purchaser(s). Any time after the delivery of the Initial
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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.
73.
74. SECTION Forms. A. Forms Generally. The Bonds, the Registration Certificate of
the Comptroller of Public Accounts of the State of Texas (to be printed on the Initial Bond(s)
only), 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 or required by this
Resolution and may have such letters, numbers, or other marks of identification (including
identifying numbers and letters of the Committee on Uniform Securities Identification
Procedures of the American Bankers Association) and such legends and endorsements
(including insurance legends on insured Bonds and any reproduction of an opinion of counsel)
thereon as may, consistently herewith, be established by the Board of Directors of the
Corporation or determined by the officers executing such Bonds as evidenced by the 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.
75.
76. The Bonds, including the Initial Bond(s), shall be typewritten, printed, lithographed, or
engraved or produced in any other similar manner, all as determined by the officers executing
such Bonds as evidenced by their execution thereof.
77.
78.
79.
80.REGISTERED
81.NO.
82.
B.
Form of Bond.
REGISTERED
$
UNITED STATES OF AMERICA
STATE OF TEXAS
COLLEYVILLE ECONOMIC DEVELOPMENT CORPORATION
SALES TAX REVENUE BOND, SERIES 2000
Issue Date:
March 1, 2000
Interest Rate:
Stated Maturity:
CUSIP NO:
Registered Owner:
Principal Amount:
DOLLARS
The Colleyville Economic Development Corporation (hereinafter referred to as the
"Corporation"), a non-profit industrial development corporation organized and existing under the
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laws of the State of Texas, including Section 4B of Article 5190.6, Tex. Rev. Civ. St. Ann., as
amended, (the "Act"), with its principal office located in Tarrant County, 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 and sources pledged under the Resolution
identified below, the Principal Amount stated above (or so much thereof as shall not have been
paid upon prior redemption) on the Stated Maturity date specified above and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months) on the unpaid Principal
Amount hereof from the Issue Date at the per annum rate of interest specified above; such
interest being payable on February 15 and August 15 of each year, commencing August 15,
2000. Principal of this Bond is payable at its Stated Maturity or redemption to the registered
owner hereof, upon presentation and surrender, at the Designated PaymentlTransfer Office of
the Paying Agent/Registrar executing the registration certificate appearing hereon, or its
successor; provided, however, while this Bond is registered to Cede & Co., the payment of
principal upon a partial redemption of the principal amount hereof may be accomplished without
presentation and surrender of this Bond. Interest is payable to the registered owner of this
Bond (or one or more Predecessor Bonds, as defined in the resolution hereinafter referenced)
whose name appears on the "Security Register" maintained by the Paying Agent/Registrar at
the close of business on the "Record Date", which is the last business day of the month next
preceding each interest payment date and interest shall be paid by the Paying Agent/Registrar
by check sent United States Mail, first class postage prepaid, to the address of the registered
owner recorded in the Security Register or by such other method, acceptable to the Paying
Agent/Registrar, requested by, and at the risk and expense of, the registered owner. All
payments of principal of, premium, if any, and interest on this Bond shall be without exchange or
collection charges to the owner hereof and in any coin or currency of the United States of
America which at the time of payment is legal tender for the payment of public and private
debts.
This Bond is one of the series specified in its title issued in the aggregate principal
amount of $2,140,000 (herein referred to as the "Bonds") to finance the construction and
equipment of a municipal building (a new city hall), including the purchase of land therefor, in
conformity with the Constitution and laws of the State of Texas, including the Act, and pursuant
to a Resolution adopted by the governing body of the Corporation (herein referred to as the
"Resolution").
The Bonds maturing on and after February 15, 2010 may be redeemed prior to their
Stated Maturities, at the option of the Corporation, in whole or in part in principal amounts of
$5,000 or any integral multiple thereof (and if within a Stated Maturity by lot by the Paying
Agent/Registrar), on February 15, 2009 or on any date thereafter at the redemption price of par
plus accrued interest thereon to the redemption date.
At least thirty days prior to a redemption date, the Corporation shall cause a written
notice of such redemption to be sent by United States Mail, first class postage prepaid, to the
registered owners of the Bond to be redeemed at the address shown on the Security Register
and subject to the terms and provisions relating thereto contained in the Resolution. If a Bond
(or any portion of its principal sum) shall have been duly called for redemption and notice of
such redemption duly given, then upon such redemption date such Bond (or the portion of its
principal sum to be redeemed) shall become due and payable, and, if moneys for the payment
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of the redemption price and the interest accrued on the principal amount to be redeemed to the
date of redemption are held for the purpose of such payment by the Paying Agent/Registrar,
interest shall cease to accrue and be payable from and after the redemption date on the
principal amount of such Bond redeemed.
In the event of a portion of the principal amount of a Bond is to be redeemed and the
registered owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender of
such Bond to the Designated PaymentlTransfer Office of the Paying Agent/Registrar, and a new
Bond or Bonds of like maturity and interest rate in any authorized denominations provided by
the Resolution for the then unredeemed balance of the principal sum thereof will be issued to
the registered owner, without charge. If a Bond is selected for redemption, in whole or in part,
the Corporation and the Paying Agent/Registrar shall not be required to transfer such Bond to
an assignee of the Holder within 45 days of the redemption date therefor; provided, however,
such limitation on transferability shall not be applicable to an exchange by the Holder of the
unredeemed balance of a Bond redeemed in part.
The Bonds, together with the Previously Issued Bonds (identified and defined in the
Resolution), are payable solely from and equally and ratably secured by a pledge of the
"Pledged Revenues" (as defined in the Resolution) received by the Corporation, including the
receipts from a Sales Tax levied for the benefit of the Corporation pursuant to the Act and an
election held in the City. The Bonds do not constitute a legal or equitable, pledge, charge, lien
or encumbrance upon any property of the Corporation or the City of Colleyville, Texas (the
"City") except with respect to the "Pledged Revenues". This Bond may not be paid in whole or
in part from any property taxes raised or to be raised by the City and is not a debt of and does
not give rise to a claim for payment against the City, except as to the sales and use tax
revenues held by the City and required under the Act to be paid over to the Corporation.
Neither the State of Texas, the City or any political corporation, subdivision or agency of the
State of Texas shall be obligated to pay this Bond or the interest hereon and neither the faith
and credit nor the taxing power of the State, the City or any other political corporation,
subdivision or agency thereof is pledged to the payment of the principal of and interest on this
Bond except as noted above.
Subject to satisfying the terms and conditions prescribed therefor, the Corporation has
reserved the right to issue additional revenue obligations payable, in whole or in part, from the
"Pledged Revenues" and equally and ratably secured in like manner and effect as the Bonds.
Reference is hereby made to the Resolution, a copy of which is on file in the Designated
PaymentlTransfer 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 payment of the Bonds; the rights of Holders of the
Bonds the terms and conditions for the issuance of additional obligations; the terms and
conditions relating to the payment, transfer or exchange of this Bond; the conditions upon which
the Resolution may be amended or supplemented with or without the consent of the Holders;
the rights, duties, and obligations of the Corporation and the Paying Agent/Registrar; the terms
and provisions upon which the encumbrances, pledges, charges and covenants made therein
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may be discharged; and for the other terms and provisions contained therein. Capitalized terms
used herein have the same meanings assigned in the Resolution.
This Bond, subject to certain limitations contained in the Resolution, may be transferred
on the Security Register only upon its presentation and surrender at the Designated
PaymentlTransfer Office of the Paying Agent/Registrar, with the Assignment hereon duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the
Paying Agent/Registrar duly executed by, the registered owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or more new fully registered
Bonds of the same Stated Maturity, of authorized denominations, bearing the same rate of
interest, and of the same aggregate principal amount will be issued by the Paying
Agent/Registrar to the designated transferee or transferees.
The Corporation 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
Corporation nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice to
the contrary. In the event of non-payment of interest on a scheduled payment date and for
thirty (30) days thereafter, a new record date for such interest payment (a "Special Record
Date") will be established by the Paying Agent/Registrar, if and when funds for the payment of
such interest have been received from the Corporation. 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 Corporation is a
non-profit industrial development corporation duly organized and legally existing under and by
virtue of the Constitution and laws of the State of Texas, including the Act; 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 special obligations of the Corporation have been
properly done, have happened and have been performed in regular and due time, form and
manner as required by law; and that due provision has been made for the payment of the
principal of and interest on the Bonds from the sources and in the manner provided in the
Resolution. 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 Resolution shall be construed in accordance with and shall be governed by
the laws of the State of Texas.
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IN WITNESS WHEREOF, the Board of Directors of the Corporation has caused this
Bond to be duly executed under the official seal of the Corporation as of the Issue Date.
COLLEYVILLE ECONOMIC DEVELOPMENT
RPORA TION
ATTEST:
0~
(SEAL)
C. *Form of ReQistration Certificate of Comptroller of Public Accounts to Appear on Initial
Bonds onlv.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
REGISTER NO.
THE STATE OF TEXAS
I HEREBY CERTIFY that this Bond has been examined, certified as to validity and
approved by the Attorney General of the State of Texas, and duly registered by the Comptroller
of Public Accounts of the State of Texas.
WITNESS my signature and seal of office this
(SEAL)
Comptroller of Public Accounts
of the State of Texas
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D. Form of Certificate of PavinQ AQent/ReQistrar to Appear on definitive Bonds.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Bond has been duly issued and registered in the name of the Registered Owner
shown above under the provisions of the within-mentioned Resolution and duly approved, or a
Predecessor Bond hereof duly 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 designated offices of the Paying Agent/Registrar located in Houston, Texas, is the
"Designated PaymentlTransfer Office" for this Bond.
THE BANK OF NEW YORK,
New York, New York,
as Paying Agent/Registrar
Registration date:
By
Authorized Signature
E.
Form of AssiQnment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers
unto (Print or typewrite name, address, and zip code of transferee:) _
(Social Security or other identifying number: ) the within
Bond and all rights thereunder, and hereby irrevocably constitutes and appoints _
attorney to transfer the within Bond on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
Signature guaranteed:
NOTICE: The signature on this assignment must
correspond with the name of the registered owner
as it appears on the face of the within Bond in
every particular.
F. The Initial Bond(s) shall be in the form set forth in paraQraph B of this Section, except
that the form of a sinQle fullv reQistered Initial Bond shall be modified as follows::
(i) immediately under the name of the bond the headings "Interest Rate _" and
"Stated Maturity _" shall both be omitted;"
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(ii) Paragraph one shall read as follows:
The Colleyville Economic Development Corporation (hereinafter referred to as the
"Corporation"), a non-profit industrial development corporation organized and existing under the
laws of the State of Texas, including Section 4B of Article 5190.6, Tex. Rev. Civ. St. Ann., as
amended, (the "Act"), with its principal office located in Tarrant County, 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 and sources pledged under the Resolution
identified below, the Principal Amount hereinabove stated on February 15 in each of the years
and in principal amounts and bearing interest at per annum rates in accordance with the
following schedule:
YEAR
PRINCIPAL
INSTALLMENTS
INTEREST
RATE
(Information to be inserted from schedule in Section 2 hereof).
(or so much thereof as shall not have been paid upon prior redemption) and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months) on the unpaid Principal
Amount hereof from the Issue Date at the per annum rate of interest specified above; such
interest being payable on February 15 and August 15 of each year, commencing August 15,
2000. Principal installments of this Bond are payable at its Stated Maturity or on a prepayment
date to the registered owner hereof by The Bank of New York, New York, New York (the
"Paying Agent/Registrar"), upon its presentation and surrender, at its designated offices in
Houston, Texas (the "Designated PaymentlTransfer Office"). Interest is payable to the
registered owner of this Bond (or one or more Predecessor Bonds, as defined in the resolution
hereinafter referenced) whose name appears on the "Security Register" maintained by the
Paying Agent/Registrar at the close of business on the "Record Date", which is the last business
day of the month next preceding each interest payment date and interest shall be paid by the
Paying Agent/Registrar by check sent United States Mail, first class postage prepaid, to the
address of the registered owner recorded in the Security Register or by such other method,
acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the
registered owner. All payments of principal of, premium, if any, and interest on this Bond shall
be without exchange or collection charges to the owner hereof and in any coin or currency of
the United States of America which at the time of payment is legal tender for the payment of
public and private debts.
1. SECTION Definitions. For all purposes of this Resolution and in particular for clarity
with respect to the issuance of the Bonds herein authorized and the pledge and appropriation of
revenues to the payment of the Bonds, the following definitions are provided:
2.
"Act" - The Development Corporation Act of 1979, Vernon's Ann. Civ. St.,
Art. 5190.6, as amended at any time.
"Additional Obligations" - Bonds, notes or other evidences of
indebtedness which the Corporation reserves the right to issue or enter into, as
the case may be, in the future in accordance with the terms and conditions
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provided in Section 18 hereof and which, together with the Bonds, are equally
and ratably secured by a parity pledge of and claim on the Pledged Revenues
under the terms of this Resolution and a Supplemental Resolution.
"Average Annual Debt Service" - That amount which, at the time of
computation, is derived by dividing the total amount of Debt Service to be paid
over a period of years as the same is scheduled to become due and payable by
the number of years taken into account in determining the total Debt Service.
Capitalized interest payments provided from proceeds or borrowings of the
Corporation shall be excluded in making the aforementioned computation.
"Board" - The Board of Directors of the Corporation.
"Bonds" - The "Colleyville Economic Development Corporation Sales Tax
Revenue Bonds, Series 2000", dated March 15, 2000, authorized by this
Resolution.
"City" - The City of Colleyville, Texas.
"Corporation" - The Colleyville Economic Development Corporation, a
non-profit industrial development corporation organized and existing under and
pursuant to the laws of the State of Texas, including Section 4B of the Act and on
behalf of the City of Colleyville, Texas.
"Debt Service" - As of any particular date of computation, with respect to
any obligations and with respect to any period, the aggregate of the amounts to
be paid or set aside by the Corporation as of such date or in such period for the
payment of the principal of, premium, if any, and interest (to the extent not
capitalized) on such obligations; assuming, in the case of obligations without a
fixed numerical rate, that such obligations bear, or would have borne, interest at
the maximum legal per annum rate applicable to such obligations, and further
assuming in the case of obligations required to be redeemed or prepaid as to
principal prior to maturity, the principal amounts thereof will be redeemed prior to
maturity in accordance with the mandatory redemption provisions applicable
thereto.
"Depository" - A commercial bank or other qualified financial institution
eligible and qualified to serve as the custodian of the Corporation's monetary
accounts and funds.
"Fiscal Year" - The twelve month financial accounting period used by the
Corporation ending September 30 in each year, or such other twelve consecutive
month period established by the Corporation.
"Government Obligations" - (i) direct noncallable obligations of the United
States of America, including obligations the principal of and interest on which are
unconditionally guaranteed by the United States of America, (ii) noncallable
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obligations of an agency or instrumentality of the United States, including
obligations unconditionally guaranteed or insured by the agency or
instrumentality and on the date of their acquisition or purchase by the
Corporation are rated as to investment quality by a nationally recognized
investment rating firm not less than AAA or its equivalent and (iii) noncallable
obligations of a state or an agency or a county, municipality, or other political
subdivision of a state that have been refunded and on the date of their
acquisition or purchase by the Corporation, are rated as to investment quality by
a nationally recognized investment rating firm not less than AAA or its equivalent.
"Gross Sales Tax Revenues" - All of the revenues or receipts due or
owing to, or collected or received by or on behalf of the Corporation by the City or
otherwise pursuant to Section 4B of the Act and the election held August 10,
1996, less any amounts due and owed to the Comptroller of Public Accounts of
the State of Texas as charges for the collection of the Sales Tax or retention by
said Comptroller for refunds and to redeem dishonored checks and drafts, to the
extent such charges and retention are authorized or required by law.
"Outstanding" - When used in this Resolution with respect to Bonds or
Parity Obligations, as the case may be, means, as of the date of determination,
all Bonds and Parity Obligations theretofore sold, issued and delivered by the
Corporation, except:
(1) those Bonds or Parity Obligations canceled or delivered to the
transfer agent or registrar for cancellation in connection with the exchange or
transfer of such obligations;
(2) those Bonds or Parity Obligations paid or deemed to be paid in
accordance with the provisions of Section 25 hereof or similar provisions of any
Supplemental Resolution authorizing the issuance of Additional Obligations.
(3) those Bonds or Parity Obligations that have been mutilated,
destroyed, lost, or stolen and replacement obligations have been registered and
delivered in lieu thereof.
"Parity Obligations" - Collectively, the Previously Issued Bonds, the Bonds
and Additional Obligations.
"Previously Issued Bonds - The outstanding and unpaid "Colleyville
Economic Development Corporation Sales Tax Revenue Bonds, Series 1997",
dated January 1, 1997, originally issued in the principal amount of $6,460,000.
"Pledged Revenues" - Collectively (i) Gross Sales Tax Revenues from
time to time deposited or owing to the Pledged Revenue Fund and (ii) such other
money, income, revenue, receipts or other property as may be specifically
dedicated, pledged or otherwise encumbered in a Supplemental Resolution for
the payment and security of Parity Obligations.
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"Required Reserve" - The amount required to be accumulated and
maintained in the Reserve Fund under the provisions of Section 14 hereof.
"Sales Tax" - The local sales and use tax authorized under Section 4B of
the Act, approved at an election held on August 10, 1996, and the effective date
for the imposition and application of such Sales Tax within the corporate limits
of the City by the Comptroller of Public Accounts of the State of Texas being
January 1, 1997, together with any increases in the rate of such Sales Tax
authorized and provided by law.
"Supplemental Resolution" - Any resolution of the Board supplementing
this Resolution for the purpose of authorizing and providing the terms and
provisions of the Bonds or Additional Obligations, or supplementing or amending
this Resolution for any other authorized purpose permitted in Section 18 or 25
hereof, including resolutions authorizing the issuance of Additional Obligations or
pledging and encumbering income, revenues, receipts or property other than the
Gross Sales Tax Revenues to the payment and security of the Parity Obligations.
1. SECTION PledQe. The Corporation hereby covenants and agrees that the Pledged
Revenues, with the exception of those in excess of the amounts required for the payment and
security of the Parity Obligations, are hereby irrevocably pledged to the payment and security of
the Previously Issued Bonds, the Bonds and Additional Obligations, if issued, including the
establishment and maintenance of the special funds created and established in this Resolution
and any Supplemental Resolution, all as hereinafter provided. The Corporation hereby resolves
the Parity Obligations shall constitute a lien on the Pledged Revenues in accordance with the
terms of this Resolution and any Supplemental Resolution, which lien shall be valid and binding
without any further action by the Corporation and without any filing or recording with respect
thereto except in the records of the Corporation.
2.
3. SECTION PledQed Revenue Fund. The Corporation hereby agrees and covenants
to maintain a fund or account at a Depository for the deposit of the Pledged Revenues as
received by the Corporation, which fund or account shall be known on the books and records of
the Corporation as the "Pledged Revenue Fund". All Pledged Revenues deposited to the credit
of such Fund shall be accounted for separate and apart from all other revenues, receipts and
income of the Corporation and, with respect to the Gross Sales Tax Revenues, the Corporation
shall further account for such funds separate and apart from the other Pledged Revenues
deposited to the credit of the Pledged Revenue Fund. All Pledged Revenues deposited to the
credit of the Pledged Revenue Fund shall be appropriated and expended to the extent required
by this Resolution and any Supplemental Resolution for the following uses and in the order of
priority shown:
4.
First: To the payment of the amounts required to be deposited in the
Bond Fund for the payment of Debt Service on the Parity Obligations as the
same becomes due and payable;
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Second: To the payment of the amounts required to be deposited in the
Reserve Fund to establish and maintain the Required Reserve in accordance
with the provisions of this Resolution and any Supplemental Resolution;
Third: To the payment of amounts required to be deposited in any other
fund or account required by any Supplemental Resolution authorizing the
issuance of Parity Obligations; and
Fourth: To any fund or account held at any place or places, or to any
payee, required by any other resolution of the Board which authorized the
issuance of obligations or the creation of debt of the Corporation having a lien on
the Pledged Revenues subordinate to the lien created herein on behalf of the
Parity Obligations.
Any Pledged Revenues remaining in the Pledged Revenue Fund after satisfying the
foregoing payments, or making adequate and sufficient provision for the payment thereof, may
be appropriated and used for any other lawful purpose now or hereafter permitted by law.
1. SECTION Bond Fund. For the purpose of providing funds to pay the principal of and
interest on Parity Obligations, the Corporation agrees and covenants to maintain a separate and
special account or fund on the books and records of the Corporation known as the "Colleyville
Economic Development Corporation Debt Service Account" (the "Bond Fund"), and all monies
deposited to the credit of such Fund shall be held in a special banking fund or account
maintained at a Depository of the Corporation. In addition to the monthly payments to the Bond
Fund for the payment of the Previously Issued Bonds, the Corporation covenants that there
shall be deposited into the Bond Fund prior to each principal and interest payment date from the
Pledged Revenues an amount equal to one hundred per centum (100%) of the interest on and
the principal of the Bonds then falling due and payable, and such deposits to pay principal and
accrued interest on the Bonds shall be made in substantially equal monthly installments on or
before the 10th day of each month, beginning on or before the 10th day of the month next
following the delivery of the Bonds to the initial purchasers.
2.
3. The required deposits to the Bond Fund for the payment of principal of and interest on
the Bonds shall continue to be made as hereinabove provided until (i) the total amount on
deposit in the Bond Fund and Reserve Fund is equal to the amount required to fully pay and
discharge all Parity Obligations (principal and interest) then Outstanding or (ii) the Bonds are no
longer Outstanding.
4.
5. SECTION Reserve Fund. (a) General Provisions. The Corporation agrees and
covenants to maintain on the books and records of the Corporation a separate and special fund
or account to be known as the "Reserve Account" (the "Reserve Fund"), which fund or account
shall be a special banking fund maintained at a Depository. The amounts deposited to the
credit of such fund or account shall be used solely for the payment of (i) the principal of and
interest on the Parity Obligations when (whether at maturity, upon a redemption date or any
interest payment date) other funds available for such purposes are insufficient, (ii) the amounts
required to restore or replenish in full the surety bond coverage afforded by a surety bond
representing all or a portion of the Required Reserve, and, in addition, may be used to the
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extent not required to maintain the "Required Reserve", to pay, or provide for the payment of,
the final principal amount of a series of Parity Obligations so that such series of Parity
Obligations is no longer deemed to be "Outstanding" as such term is defined herein.
6.
7. In accordance with the provisions of the Resolution authorizing the issuance of the
Previously Issued Bonds, the amount currently on deposit in the Reserve Fund is $494,594.00
(the "Current Reserve"), which Current Reserve is funded in full with a surety bond issued by
Ambac Indemnity Corporation. By reason of the issuance of the Bonds the total amount
required to be deposited to the credit of the Reserve Fund shall be $ (the
Required Reserve), which amount is equal to the maximum annual Debt Service (calculated
on a Fiscal Year basis) for all Parity Obligations currently Outstanding (after giving effect to the
issuance of the Bonds), as determined on the date the Bonds are to be delivered to the initial
purchasers. On the date the Bonds are delivered to the initial purchasers, the Corporation shall
deposit to the credit of the Reserve Fund an additional surety bond equal to the difference
between the Required Reserve and the Current Reserve or a revised surety bond with surety
bond coverage in an amount sufficient to provide for the new Required Reserve.
8.
9. As and when Additional Obligations are delivered or incurred, the Required Reserve
shall be increased, if required, to an amount equal to the lesser of either (i) the maximum annual
Debt Service (calculated on a Fiscal Year basis) for all Parity Obligations then Outstanding
(after giving effect to the issuance of the Additional Obligations), as determined on the date
each series of Additional Obligations are delivered or incurred, as the case may be, or (ii) the
maximum amount that can be invested without restriction as to yield in a reasonably required
reserve fund pursuant to Subsection (d) of Section 148 of the Internal Revenue Code of 1986,
as amended, and regulations promulgated thereunder. Any additional amount required to be
maintained in the Reserve Fund shall be accumulated (i) by depositing to the credit of the
Reserve Fund (immediately after the delivery of the then proposed Additional Obligations) cash
or an additional surety bond or revised surety bond with surety bond coverage in an amount
sufficient to provide for the new Required Reserve to be fully or partially funded, or (ii) at the
option of the Corporation, by making monthly deposits from funds in the Pledged Revenue Fund
on or before the 10th day of each month following the month of delivery of the then proposed
Additional Obligations, of not less than 1/36th of the additional amount to be maintained in said
Fund by reason of the issuance of the Additional Obligations then being issued (or 1/36th of the
balance of the additional amount not deposited immediately in cash or provided by a surety
bond).
10.
11. While the cash and investments and/or surety bond coverage in the Reserve Fund total
not less than the Required Reserve, no deposits need be made to the credit of the Reserve
Fund. Should the Reserve Fund at any time contain less than the Required Reserve (or so
much thereof as shall then be required to be contained therein if Additional Obligations have
been issued and the Corporation has elected to accumulate all or a portion of the Required
Reserve with Pledged Revenues) or should the Corporation be obligated to repay or reimburse
an issuer of a surety bond to replenish and restore the full amount of surety bond coverage
provided by a surety bond held for the account of the Reserve Fund, the Corporation covenants
and agrees to cause monthly deposits to be made to the Reserve Fund on or before the 10th
day of each month (beginning the month next following the month the deficiency in the
Required Reserve occurred by reason of a draw on the Reserve Fund or as a result of a
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reduction in the market value of investments held for the account of the Reserve Fund) from
Pledged Revenues in an amount equal to (i) 1/36th of the Required Reserve until the total
Required Reserve then required to be maintained in said Fund has been fully restored or (ii) the
amounts required to be reimbursed and repaid to the issuer of the surety bond in the event of a
draw upon a surety bond. The Corporation further covenants and agrees that the Pledged
Revenues shall be applied and appropriated and used to establish and maintain the Required
Reserve and to cure any deficiency in such amounts as required by the terms of this Resolution
and any Supplemental Resolution.
12.
13. During such time as the Reserve Fund contains the total Required Reserve, the
Corporation may, at its option, withdraw any amount in the Reserve Fund in excess of the
Required Reserve and deposit such surplus in the Pledged Revenue Fund.
14.
15. (b) Ambac Surety Bond Provisions. As noted above, the Required Reserve to be
accumulated and maintained in the Reserve Fund by reason of the issuance of the Bonds is
initially to be provided by one or more surety bonds issued by Ambac Indemnity Corporation, a
Wisconsin domiciled stock insurance company (hereinafter referred to as "Ambac") with surety
bond coverage in the maximum amount of $ (the "Surety Bond"). In accordance
with Ambac 's terms for the issuance of such Surety Bond, it is hereby expressly provided:
16.
17. (i) Any provision of this Resolution expressly recognizing or granting rights in or to
Ambac may not be amended in any manner which affects the rights of Ambac hereunder
without the prior written consent of Ambac.
18.
19. (ii) Unless otherwise provided in this Section, Ambac 's consent shall be required in
addition to the consent of the Holders of the Bonds, when required, for the following purposes:
20.
21. (A) execution and delivery of any supplement to this Resolution; (B) removal of the
Paying Agent/Registrar or selection and appointment of any successor paying agent; and (C)
initiation or approval of any action not described in (A) or (B) above which requires consent of
the Holders of the Bonds.
22.
23. (iii) While the Surety Bond is in effect, the Corporation or the Paying Agent/Registrar, as
appropriate, shall furnish to Ambac:
24.
(A) as soon as practicable after the filing thereof, a copy of any
audited financial statement of the Corporation and a copy of any audit and
annual report of the Corporation;
(B) a copy of any notice to be given to the registered owners of the
Bonds and any certificate rendered pursuant to this Resolution relating to the
security for the Bonds; and
(C) such additional information it may reasonably request.
(iv) The Corporation will permit Ambac to discuss the affairs, finances and accounts
of the Corporation or any information Ambac may reasonably request regarding the security for
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the Bonds with appropriate officers of the Corporation. The Paying Agent/Registrar or
Corporation, as appropriate, will permit Ambac to have access to and to make copies, at
Ambac's expense, of all books and records relating to the Bonds at any reasonable time.
(v) Notwithstanding any other provision of this Resolution, the Paying
Agent/Registrar shall immediately notify Ambac if at any time there is insufficient money to
make any payments of principal and interest as required and immediately upon the occurrence
of (A) any event of default under this Resolution or (B) any payment default under any related
security agreement.
(vi) To the extent that the Corporation enters into a continuing disclosure agreement
with respect to the Bonds, Ambac shall be included as party to be notified.
(vii) As long as the Surety Bond shall be in full force and effect, the Corporation and the
Paying Agent/Registrar, if appropriate, agree to comply with the following provisions:
(A) In the event and to the extent that money on deposit in the Bond
Fund, plus all amounts on deposit in and credited to the Reserve Fund in excess
of the amount of the Surety Bond, are insufficient to pay the amount of principal
and interest coming due, then upon the later of: (i) one (1) day after receipt by
the General Counsel of Ambac of a demand for payment in the form attached to
the Surety Bond as Attachment 1 (the "Demand for Payment"), duly executed by
the Paying Agent/Registrar certifying that payment due under the Resolution has
not been made to the Paying Agent/Registrar; or (ii) the payment date of the
Obligations as specified in the Demand for Payment presented by the Paying
Agent/Registrar to the General Counsel of Ambac, Ambac will make a deposit of
funds in an account with the Paying Agent/Registrar or its successor, in New
York, New York, sufficient for the payment to the Paying Agent/Registrar, of
amounts which are then due to the Paying Agent/Registrar under the Resolution
(as specified in the Demand for Payment) up to but not in excess of the "Surety
Bond Coverage", as defined in the Surety Bond; provided, however, that in the
event that the amount on deposit in, or credit to, the Reserve Fund, in addition to
the amount available under the Surety Bond, includes amounts available under a
letter of credit, insurance policy, surety bond or other such funding instrument
(the "Additional Funding Instrument"), draws on the Surety Bond and the
Additional Funding Instrument shall be made on a pro rata basis to fund the
insufficiency.
(B) the Paying Agent/Registrar, if appropriate, shall, after submitting
to Ambac the Demand for Payment as provided in subparagraph (vii)(A) above,
make available to Ambac all records relating to the funds and accounts
maintained under this Resolution.
(C) the Paying Agent/Registrar, if appropriate, shall, upon receipt of
money received from the draw on the Surety Bond, as specified in the Demand
for Payment, credit the Reserve Fund to the extent of money received pursuant
to such Demand for Payment.
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(D) the Reserve Fund shall be replenished in the following priority: (i)
principal and interest on the Surety Bond shall be paid from first available
Pledged Revenues or principal and interest on the Surety Bond and on the
Additional Funding Instrument shall be paid from first available Pledged
Revenues on a pro rata basis; (ii) after all such amounts are paid in full, amounts
necessary to fund the Reserve Fund to the required level, after taking into
account the amounts available under the Surety Bond and the Additional Funding
Instrument shall be deposited from next available Pledged Revenues.
Furthermore, the "Guaranty Agreement" (the "Guaranty Agreement") by and between
the Corporation and Ambac, attached hereto as Exhibit B and incorporated herein by reference
as a part of this Resolution for all purposes, is hereby approved as to form and content, and
such Guaranty Agreement in substantially the form and substance attached hereto, together
with such changes or revisions as may be necessary to comply with Texas law, is hereby
authorized to be executed by the President of the Board of Directors of the Corporation for and
on behalf of the Corporation and as the act and deed of this Board of Directors; and such
Guaranty Agreement as executed by said officials shall be deemed approved by the Board of
Directors and constitute the Guaranty Agreement herein approved. Unless otherwise provided
herein, the terms capitalized in this Section relating to the Surety Bond and the Guaranty
Agreement shall have the meanings specified in Guaranty Agreement.
1. SECTION Deficiencies. If on any occasion there shall not be sufficient Pledged
Revenues to make the required deposits into the Bond Fund or Reserve Fund, such deficiency
shall be cured as soon as possible from the next available Pledged Revenues, or from any other
sources available for such purpose.
2.
3. SECTION Payment of Bonds. While any of the Bonds are Outstanding, the
Finance Manager of the Corporation (or other designated financial officer of the Corporation)
shall cause to be transferred to the Paying Agent/Registrar, from funds on deposit in the Bond
Fund, and, if necessary, in the Reserve Fund, amounts sufficient to fully pay and discharge
promptly as each installment of interest and principal of the Bonds accrues or matures; such
transfer of funds to be made in such manner as will cause immediately available funds to be
deposited with the Paying Agent/Registrar for the Bonds at the close of the business day next
preceding the date of payment for the Bonds.
4.
5. SECTION Investments - Security of Funds. (a) Money in any Fund required to be
maintained pursuant to this Resolution may, at the option of the Corporation, be invested in
obligations and in the manner prescribed by the Public Funds Investment Act of 1987
(V.T.C.A., Government Code, Chapter 2256), including investments held in book-entry form;
provided that all such deposits and investments shall be made in such a manner that the money
required to be expended from any Fund will be available at the proper time or times and
provided further the maximum stated maturity for any investment acquired with money
deposited to the credit of the Reserve Fund shall be limited to five (5) years from the date of the
investment of such money. Such investments shall be valued in terms of current market value
within 45 days of the close of each Fiscal Year and, with respect to investments held for the
account of the Reserve Fund, within 45 days of the date of passage of each authorizing
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document of the Board pertaining to the issuance of Additional Obligations. All interest and
income derived from deposits and investments in the Bond Fund immediately shall be credited
to, and any losses debited to, the appropriate account of the Bond Fund. All interest and
interest income derived from deposits in and investments of the Reserve Fund shall, subject to
the limitations provided in Section 14 hereof, be credited to and deposited in the Pledged
Revenue Fund. All such investments shall be sold promptly when necessary to prevent any
default in connection with the Parity Obligations.
6.
7. (b) Money deposited to the credit of the Pledged Revenue Fund, Bond Fund and
Reserve Fund, to the extent not invested and not otherwise insured by the Federal Deposit
Insurance Corporation or similar agency, shall be secured by a pledge of direct obligations of
the United States of America, or obligations unconditionally guaranteed by the United States of
America.
8.
9. SECTION Issuance of Additional Parity ObliQations. Subject to the provisions
hereinafter appearing as to conditions precedent which must be satisfied, the Corporation
reserves the right to issue, from time to time as needed, Additional Obligations for any lawful
purpose. Such Additional Obligations may be issued in such form and manner as the
Corporation shall determine, provided, however, prior to issuing or incurring such Additional
Obligations, the following conditions precedent for the authorization and issuance of the same
are satisfied, to wit:
10.
(1) The Finance Manager of the Corporation (or other officer of the
Corporation then having the primary responsibility for the financial affairs of the
Corporation) shall have executed a certificate stating that, to the best of his or
her knowledge and belief, the Corporation is not then in default as to any
covenant, obligation or agreement contained in the Resolution or a Supplemental
Resolution.
(2) The Corporation has secured from a certified public accountant a
certificate or opinion to the effect that, according to the books and records of the
Corporation, the Gross Sales Tax Revenues received by the Corporation for
either (i) the last completed Fiscal Year next preceding the adoption of the
Supplemental Resolution authorizing the issuance of the proposed Additional
Obligations or (ii) any twelve (12) consecutive months out of the previous
eighteen (18) months next preceding the adoption of the Supplemental
Resolution authorizing the Additional Obligations were equal to not less than 1.40
times the maximum annual Debt Service for all Parity Obligations then
Outstanding after giving effect to the issuance of the Additional Obligations then
being issued. Additionally, for the purpose of providing this certificate or opinion,
if the Corporation shall not have received Gross Sales Tax Revenues for a full 12
month period, one-half of the amount of sales tax revenues actually received by
the City under Chapter 321, TEX.TAX CODE, may be used for the months during
which the Corporation did not receive Gross Sales Tax Revenues.
(3) The Required Reserve to be accumulated and maintained in the
Reserve Fund is increased to the extent required by Section 14.
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1. SECTION RefundinQ Bonds. The Corporation reserves the right to issue refunding
bonds to refund all or any part of the Parity Obligations (pursuant to any law then available)
upon such terms and conditions as the Board may deem to be in the best interest of the
Corporation, and if less than all such Parity Obligations then Outstanding are refunded, the
conditions precedent prescribed (for the issuance of Additional Obligations) set forth in
Section 18 hereof shall be satisfied, and shall give effect to the refunding.
2.
3. SECTION Right to Create Subordinate Debt. Except as may be limited by a
Supplemental Resolution, the Corporation shall have the right to issue or create any debt
payable from or secured by a lien on all or any part of the Pledged Revenues for any lawful
purpose without complying with the provisions of Section 18 or 19 hereof, provided the pledge
and the lien securing such debt is subordinate to the pledge and lien established, made and
created in Section 11 of this Resolution with respect to the Pledged Revenues to the payment
and security of the Parity Obligations (including amounts to be repaid following a draw on a
surety bond held for the Reserve Fund).
4.
5. SECTION Confirmation and Levy of Sales Tax. (a) The Board hereby represents
the City has duly complied with the provisions of the Act for the levy of the Sales Tax at the rate
voted at the election held by and within the City on August 10, 1996, and such Sales Tax is to
be imposed within the corporate limits of the City and the receipts of such Sales Tax are to be
remitted to the City by the Comptroller of Public Accounts on a monthly basis.
6.
7. (b) While any Bonds are Outstanding, the Corporation covenants, agrees and
warrants to take and pursue all action permissible to cause the Sales Tax, at said rate or at a
higher rate if legally permitted, to be levied and collected continuously, in the manner and to the
maximum extent permitted by law, and to cause no reduction, abatement or exemption in the
Sales Tax or rate of tax below the rate stated, confirmed and ordered in subsection (a) of this
Section to be ordered or permitted while any Bonds shall remain Outstanding.
8.
9. (c) If hereafter authorized by law to apply, impose and levy the Sales Tax on any
taxable items or transactions that are not subject to the Sales Tax on the date of the adoption
hereof, to the extent it legally may do so, the Corporation agrees to use its best efforts to cause
the City to take such action as may be required to subject such taxable items or transactions to
the Sales Tax.
10.
11. (d) The Corporation agrees to take and pursue all action legally permissible to cause
the Sales Tax to be collected and remitted and deposited as herein required and as required by
Section 4B of the Act, at the earliest and most frequent times permitted by law.
12.
13. (e) The Corporation agrees to use its best efforts to cause the City to comply with
Section 4B of the Act and shall cause the Gross Sales Tax Revenues to be deposited to the
credit of the Pledged Revenue Fund in their entirety immediately upon receipt by the City. In
the alternative and if legally authorized, the Corporation shall, by appropriate notice, direction,
request or other legal method, use its good-faith efforts to cause the Comptroller of Public
Accounts of the State of Texas (the "Comptroller") to pay all Gross Sales Tax Revenues directly
to the Corporation for deposit to the Pledged Revenue Fund.
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14.
15. SECTION Records and Accounts. The Corporation hereby covenants and agrees
that while any of the Bonds are Outstanding, it will keep and maintain complete records and
accounts in accordance with generally accepted accounting principles, and following the close
of each Fiscal Year, it will cause an audit of such books and accounts to be made by an
independent firm of certified public accountants. Each such audit, in addition to whatever other
matters may be thought proper by the accountant, shall particularly include the following:
16.
(1) A statement in reasonable detail regarding the receipt and
disbursement of the Pledged Revenues for such Fiscal Year; and
(2) A balance sheet for the Corporation as of the end of such Fiscal Year.
Such annual audit of the records and accounts of the Corporation shall be in the form of
a report and be accompanied by an opinion of the accountant to the effect that such
examination was made in accordance with generally accepted auditing standards and contain a
statement to the effect that in the course of making the examination necessary for the report
and opinion, the accountant obtained no knowledge of any default of the Corporation on the
Bonds or in the fulfillment of any of the terms, covenants or provisions of this Resolution, or
under any other evidence of indebtedness, or of any event which, with notice or lapse of time, or
both, would constitute a failure of the Corporation to comply with the provisions of this
Resolution or if, in the opinion of the accountants, any such failure to comply with a covenant or
agreement hereof, a statement as to the nature and status thereof shall be included.
Copies of each annual audit report shall be furnished upon written request, to any
Holders of any of said Bonds. The audits herein required shall be made within 120 days
following the close of each Fiscal Year insofar as is possible.
The Holders of any Bonds or any duly authorized agent or agents of such Holders shall
have the right to inspect such records, accounts and data of the Corporation during regular
business hours.
1. SECTION Representations as to Security for the Bonds. (a) The Corporation
represents and warrants that, except for the Parity Obligations (including amounts to be repaid
following a draw on a surety bond held for the Reserve Fund), the Pledged Revenues are and
will be and remain free and clear of any pledge, lien, charge or encumbrance thereon or with
respect thereto prior to, or of equal rank with, the pledge and lien created in or authorized by
this Resolution except as expressly provided herein.
2.
3. (b) The Bonds and the provisions of this Resolution are and will be the valid and
legally enforceable obligations of the Corporation in accordance with their terms and the terms
of this Resolution, subject only to any applicable bankruptcy or insolvency laws or to any laws
affecting creditors rights generally.
4.
5. (c) The Corporation shall at all times, to the extent permitted by law, defend,
preserve and protect the pledge of the Pledged Revenues and all the rights of the Holders
against all claims and demands of all persons whomsoever.
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6.
7. (d) The Corporation will take, and use its best efforts to cause the City to take, all
steps reasonably necessary and appropriate to collect all delinquencies in the collection of the
Sales Tax to the fullest extent permitted by the Act.
8.
9. (e) The provisions, covenants, pledge and lien on and against the Pledged
Revenues, as herein set forth, are established and shall be for the equal benefit, protection and
security of the owners and holders of Parity Obligations without distinction as to priority and
rights under this Resolution.
10.
11. (f) The Parity Obligations shall constitute special obligations of the Corporation,
payable solely from, and equally and ratably secured by a parity pledge of and lien on, the
Pledged Revenues, and not from any other revenues, properties or income of the Corporation.
The Bonds may not be paid in whole or in part from any property taxes raised or to be raised by
the City and shall not constitute debts or obligations of the State or of the City, and the Holders,
shall never have the right to demand payment out of any funds raised or to be raised by any
system of ad valorem taxation.
12.
13. SECTION Satisfaction of ObliQation of Corporation. If the Corporation shall payor
cause to be paid, or there shall otherwise be paid to the Holders, the principal of, premium, if
any, and interest on the Bonds, at the times and in the manner stipulated in this Resolution,
then the pledge of the Pledged Revenues under this Resolution and all other obligations of the
Corporation to the Holders shall thereupon cease, terminate, and be discharged and satisfied.
14.
15. Bonds or any principal amount(s) shall be deemed to have been paid within the meaning
and with the effect expressed above in this Section when (i) money sufficient to pay in full such
Bonds at maturity or to the redemption date therefor, together with all interest due thereon, shall
have been irrevocably deposited with and held in trust by the Paying Agent/Registrar, or an
authorized escrow agent, or (ii) Government Obligations shall have been irrevocably deposited
in trust with the Paying Agent/Registrar, or an authorized escrow agent, which Government
Obligations have been certified by an independent accounting firm to mature as to principal and
interest in such amounts and at such times as will insure the availability, without reinvestment,
of sufficient money, together with any moneys deposited therewith, if any, to pay when due the
Bonds on the Stated Maturities thereof or (if notice of redemption has been duly given or waived
or if irrevocable arrangements therefor accepted to the Paying Agent/Registrar have been
made) the redemption date thereof. The Corporation covenants that no deposit of moneys or
Government Obligations will be made under this Section and no use made of any such deposit
which would cause the Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Internal Revenue Code of 1986, as amended, or regulations adopted
pursuant thereto.
16.
17. Any moneys so deposited with the Paying Agent/ Registrar, or an authorized escrow
agent, and all income from Government Obligations held in trust by the Paying Agent/Registrar,
or an authorized escrow agent, pursuant to this Section in excess of the amount required for the
payment of the Bonds shall be remitted to the District or deposited as directed by the District.
Furthermore, any money held by the Paying Agent/Registrar for the payment of the principal of
and interest on the Bonds and remaining unclaimed for a period of three (3) years after the
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Stated Maturity, or applicable redemption date, of the Bonds such moneys were deposited and
are held in trust to pay shall, upon the request of the Corporation, be remitted to the Corporation
against a written receipt therefor. Notwithstanding the above and foregoing, any remittance of
funds from the Paying Agent/Registrar to the Corporation shall be subject to any applicable
unclaimed property laws of the State of Texas.
18.
19. SECTION Resolution a Contract - Amendments. This Resolution shall constitute a
contract with the Holders from time to time, be binding on the Corporation, and shall not be
amended or repealed by the Corporation while any Bond remains Outstanding except as
permitted in this Section. The Corporation, may, without the consent of or notice to any
Holders, from time to time and at any time, amend this Resolution in any manner not detrimental
to the interests of the Holders, including the curing of any ambiguity, inconsistency, or formal
defect or omission herein. In addition, the Corporation may, with the written consent from the
owners holding a majority in aggregate principal amount of the Parity Obligations then
Outstanding affected thereby, amend, add to, or rescind any of the provisions of this Resolution;
provided that, without the written consent of all Holders of Outstanding Bonds effected, no such
amendment, addition, or rescission shall (1) extend the time or times of payment of the
principal of, premium, if any, and interest on the Bonds, reduce the principal amount thereof,
the redemption price therefor, or the rate of interest thereon, or in any other way modify the
terms of payment of the principal of, premium, if any, or interest on the Bonds, (2) give any
preference to any Bond over any other Bond, or (3) reduce the aggregate principal amount of
Bonds or Parity Obligations, as the case may be, required to be held for consent to any such
amendment, addition, or rescission.
20.
21. SECTION Mutilated - Destroved - Lost and Stolen Bonds. In case any Bond shall
be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may execute and deliver a
replacement Bond of like form and tenor, and in the same denomination and bearing a number
not contemporaneously outstanding, in exchange and substitution for such mutilated Bond, or in
lieu of and in substitution for such destroyed, lost or stolen Bond, only upon the approval of the
Corporation and after (i) the filing by the Holder thereof with the Paying Agent/Registrar of
evidence satisfactory to the Paying Agent/Registrar of the destruction, loss or theft of such
Bond, and of the authenticity of the ownership thereof and (ii) the furnishing to the Paying
Agent/Registrar of indemnification in an amount satisfactory to hold the Corporation and the
Paying Agent/Registrar harmless. All expenses and charges associated with such indemnity
and with the preparation, execution and delivery of a replacement Bond shall be borne by the
Holder of the Bond mutilated, or destroyed, lost or stolen.
22.
23. Every new Bond issued pursuant to this Section in lieu of any mutilated, destroyed, lost,
or stolen Bond shall constitute a replacement of the prior obligation of the Corporation, whether
or not the mutilated, destroyed, lost, or stolen Bond shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Resolution equally and ratably with all other
Outstanding Bonds.
24.
25. SECTION Covenants ReQardinQ Tax-Exempt Status. (a) Definitions. When used
in this Section 27, the following terms have the following meanings:
26.
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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 1 03 and 141 through 150 of the Code,
and 1 03 of the Internal Revenue Code of 1954, which are applicable to the
Bonds. Any reference to any specific Regulation shall also mean, as
appropriate, any proposed, temporary or final Income Tax Regulation designed
to supplement, amend or replace the specific Regulation referenced.
"Yield" of (1) any Investment has the meaning set forth in Section 1.148-5
of the Regulations and (2) the Bonds has the meaning set forth in Section 1.148-
4 of the Regulations.
(b) Not to Cause Interest to Become Taxable. The Corporation shall not use, permit
the use of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition,
construction or improvement of which is to be financed directly or indirectly with Gross
Proceeds) in a manner which if made or omitted, respectively, would cause the interest on any
Bond to become includable in the gross income, as defined in section 61 of the Code, of the
owner thereof for federal income tax purposes. Without limiting the generality of the foregoing,
unless and until the Corporation 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
Corporation shall comply with each of the specific covenants in this Section.
(c) No Private Use or Private Payments. The Bonds are being issued to finance the
costs of the Project for and on behalf of the City, a political subdivision of the State of Texas
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and, in connection therewith, the City and the Corporation will execute an agreement relating to
the ownership, operation and maintenance of the Project while the Bonds are outstanding and
unpaid, which agreement provides that, except as permitted by section 141 of the Code and the
Regulations and rulings thereunder, the Project shall at all times prior to the last Stated Maturity
of Bonds:
(1) be exclusively owned, operated and maintained by the City, and
prohibits the City from using or permitting the use of such Gross Proceeds or any
property acquired, constructed or improved with such Gross Proceeds in any
activity carried on by any person or entity other than a state or local government,
unless such use is solely as a member of the general public; and
(2) prohibits the City from directly or indirectly imposing or accepting
any charge or other payment for use of Gross Proceeds of the Bonds or for any
property the acquisition, construction or improvement of which is to be financed
or refinanced directly or indirectly with such Gross Proceeds, other than taxes of
general application within the City or interest earned on investments acquired
with such Gross Proceeds pending application for their intended purposes.
(d) No Private Loan. Except to the extent permitted by section 141 of the Code and
the Regulations and rulings thereunder, the Corporation shall not use Gross Proceeds of the
Bonds to make or finance loans to any person or entity other than a state or local government.
For purposes of the foregoing covenant, such Gross Proceeds are considered to be "loaned" to
a person or entity if: (1) property acquired, constructed or improved with such Gross Proceeds is
sold or leased to such person or entity in a transaction which creates a debt for federal income
tax purposes; (2) capacity in or service from such property is committed to such person or entity
under a take-or-pay, output or similar contract or arrangement; or (3) indirect benefits, or
burdens and benefits of ownership, of such Gross Proceeds or any property acquired,
constructed or improved with such Gross Proceeds are otherwise transferred in a transaction
which is the economic equivalent of a loan.
(e) Not to Invest at HiQher Yield. Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the Corporation shall not at any time prior
to the final Stated Maturity of the Bonds directly or indirectly invest Gross Proceeds in any
Investment (or use Gross Proceeds to replace money so invested), if as a result of such
investment the Yield from the Closing Date of all Investments acquired with Gross Proceeds (or
with money replaced thereby), whether then held or previously disposed of, exceeds the Yield of
the Bonds.
(f) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of
the Code and the Regulations and rulings thereunder, the Corporation 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 Corporation shall timely file the information required by
section 149(e) of the Code with the Secretary of the Treasury on Form 8038-G or such other
form and in such place as the Secretary may prescribe.
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(h) No Rebate Required. Pursuant to Section 148(f)(4)(D)(iv) of the Code and for
the calendar year 2000, the City has irrevocably allocated to the Corporation $2,140,000 of its
$5,000,000 limitation under Section 148(f)(4)(d)(i)(IV) and declared the $2,140,000 so allocated
to the Corporation to bear a reasonable relationship to the benefits received by the City from the
Bonds. Therefore, the Corporation warrants and represents that its satisfies the requirements
of paragraph (2) and (3) of section 148(f) of the code with respect to the Bonds without making
the payments for the United States described in such section. Specifically, the Corporation
warrants and represents that:
(1) the City is a governmental unit with general taxing powers and for
2000 has irrevocably allocated $2,140,000 of its $5,000,000 limitation to the
Corporation who is a subordinate entity of the City;
(2) at least 95% of the net proceeds of the Bonds will be used for the
local governmental activities;
(3) the aggregate face amount of all tax-exempt obligations issued or
expected to be issued by the City (and all subordinate entities thereof) in the
calendar year in which the Bonds are issued is not reasonably expected to
exceed $5,000,000.
PROVIDED, HOWEVER, should additional tax exempt obligations be issued or incurred,
including lease purchase financings, in the 2000 calendar year which would cause the total face
amount of tax exempt obligations issued and incurred by the City and the Corporation in such
calendar year to exceed $5,000,000, the Corporation agrees and covenants that it will maintain
complete records regarding the investments of the proceeds of sale of the Bonds and rebate
any "arbitrage profits" to the United States as required by Section 148(f) of the Code.
(i) Elections. The Corporation hereby directs and authorizes the President of the
Board of Directors and Secretary and Finance Manager of the Corporation, 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.
U) Qualified Tax Exempt ObliQations. In accordance with the provisions of
paragraph (3) of subsection (b) of Section 265 of the Code, the Corporation hereby designates
the Bonds to be "qualified tax exempt obligations" in that the Bonds are not "private activity
bonds" as defined in the Code and the reasonably anticipated amount of "qualified tax exempt
obligations" to be issued by the Corporation (including all subordinate entities of the City) for the
calendar year 2000 will not exceed $10,000,000.
1. SECTION Notices to Holders - Waiver. Wherever this Resolution provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to
the address of each Holder as it appears in the Security Register.
2.
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3. In any case where notice to Holders is given by mail, neither the failure to mail such
notice to any particular Holders, nor any defect in any notice so mailed, shall affect the
sufficiency of such notice with respect to all other Bonds. Where this Resolution provides for
notice in any manner, such notice may be waived in writing by the Holder entitled to receive
such notice, either before or after the event with respect to which such notice is given, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
4.
5. SECTION Cancellation. All Bonds surrendered for payment, redemption, transfer or
exchange, if surrendered to the Paying Agent/Registrar, shall be promptly canceled by it and, if
surrendered to the Corporation, shall be delivered to the Paying Agent/Registrar and, if not
already canceled, shall be promptly canceled by the Paying Agent/Registrar. The Corporation
may at any time deliver to the Paying Agent/Registrar for cancellation any Bonds previously
certified or registered and delivered which the Corporation may have acquired in any manner
whatsoever, and all Bonds so delivered shall be promptly canceled by the Paying
Agent/Registrar. All canceled Bonds held by the Paying Agent/Registrar shall be destroyed as
directed by the Corporation.
6.
7. SECTION Sale of Bonds. The Bonds authorized by this Resolution are hereby sold
to (herein referred to as the "Purchasers") in
accordance with a Purchase Contract (the "Contract"), dated March 21, 2000, attached hereto
as Exhibit C and incorporated herein by reference as a part of this Resolution for all purposes.
The President of the Board of Directors is hereby authorized and directed to execute said
Contract for and on behalf of the Corporation and as the act and deed of this Board, and in
regard to the approval and execution of the Contract, the Board hereby finds, determines and
declares that the representations, warranties and agreements of the Corporation contained
therein are true and correct in all material respects and shall be honored and performed by the
City.
8.
9. SECTION Approval and Execution of FinancinQ/Use AQreement with the City. The
"Financing/Use Agreement" (the "Agreement") by and between the Corporation and the City,
attached hereto as Exhibit D and incorporated herein by reference as a part of this Resolution
for all purposes, is hereby approved as to form and content, and such Agreement in
substantially the form and substance attached hereto, together with such changes or revisions
as may be necessary to accomplish the financing or benefit the Corporation, is hereby
authorized to be executed by the President of the Board of Directors and Secretary of the
Corporation and as the act and deed of this Board; and such Agreement as executed by said
officials shall be deemed approved by the Board and constitute the Agreement herein approved.
10.
11. SECTION Official Statement. The use of the Preliminary Official Statement by the
Purchasers in connection with the public offering and sale of the Bonds is hereby ratified,
confirmed and approved in all respects. The final Official Statement, which reflects the terms of
sale, attached as Exhibit A to the Purchase Contract (together with such changes approved by
the President or Vice President of the Board of Directors, or Secretary or Finance Manager of
the Corporation, anyone or more of said officials), shall be and is hereby in all respects
approved and the Purchasers are hereby authorized to use and distribute said final Official
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Statement, dated March 21, 2000, in the reoffering, sale and delivery of the Bonds to the public.
The President of the Board of Directors and Secretary of the Corporation are further authorized
and directed to manually execute and deliver for and on behalf of the Corporation 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 Board of Directors and constitute the Official Statement authorized for
distribution and use by the Purchasers.
12.
13. SECTION Proceeds of Sale. The proceeds of sale of the Bonds, excluding the
accrued interest and premium, if any, received from the Purchasers, amounts to be used to pay
the municipal bond insurance premium and the amount being deposited to the Reserve Fund,
shall be deposited in a construction fund in accordance with the Agreement. Pending
expenditure for the Projects, such proceeds of sale may be invested in authorized investments
and any investment earnings realized shall be expended for the Projects or deposited in the
Bond Fund. All surplus proceeds of sale of the Bonds, including investment earnings, remaining
after completion of the Projects, together with the accrued interest and premium, if any, received
from the Purchasers, shall be deposited to the credit of the Bond Fund.
14.
15. SECTION LeQal Opinion. The obligation of the Purchasers to accept delivery of the
Bonds is subject to being furnished a final opinion of Fulbright & Jaworski L.L.P., Attorneys,
Dallas, Texas, approving such Bonds as to their validity, said opinion to be dated and delivered
as of the date of delivery and payment for such Bonds. A true and correct reproduction of said
opinion is hereby authorized to be printed on the definitive Bonds or an executed counterpart
thereof shall accompany the global Bonds deposited with the Depository Trust Company.
16.
17. SECTION CUSIP Numbers. CUSIP numbers may be printed or typed on the
definitive Bonds. It is expressly provided, however, that the presence or absence of CUSIP
numbers on the definitive Bonds shall be of no significance or effect as regards the legality
thereof and neither the Corporation nor attorneys approving said Bonds as to legality are to be
held responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds.
18.
19. SECTION Control and Custody of Bonds. The President of the Board shall be and
is hereby authorized to take and have charge of all necessary orders and records pending
investigation by the Attorney General of the State of Texas, and shall take and have charge and
control of the Initial Bond(s) pending the approval thereof by the Attorney General, the
registration thereof by the Comptroller of Public Accounts and the delivery thereof to the
Purchasers.
20.
21. Furthermore, the President and Vice President of the Board of Directors or the
Secretary, Finance Manager, and General Manager of the Corporation, individually, jointly or
collectively, are hereby authorized and directed to furnish and execute such documents and
certifications relating to the Corporation and the issuance of the Bonds, as may be necessary
for the approval of the Attorney General, registration by the Comptroller of Public Accounts and
delivery of the Bonds to the initial purchasers and, together with the Corporation's financial
advisor, general counsel, 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.
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22.
23. SECTION Benefits of Resolution. Nothing in this Resolution, expressed or implied,
is intended or shall be construed to confer upon any person other than the Corporation, the
Paying Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or
by reason of this Resolution or any provision hereof, this Resolution and all its provisions being
intended to be and being for the sole and exclusive benefit of the Corporation, the Paying
Agent/Registrar and the Holders.
24.
25. SECTION Inconsistent Provisions. All orders or resolutions, or parts thereof, which
are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the
extent of such conflict and the provisions of this Resolution shall be and remain controlling as to
the matters contained herein.
26.
27. SECTION GoverninQ Law. This Resolution shall be construed and enforced in
accordance with the laws of the State of Texas and the United States of America.
28.
29. SECTION Severability. If any provision of this Resolution or the application thereof
to any circumstance shall be held to be invalid, the remainder of this Resolution and the
application thereof to other circumstances shall nevertheless be valid, and the Board hereby
declares that this Resolution would have been enacted without such invalid provision.
30.
31. SECTION Construction of Terms. If appropriate in the context of this Resolution,
words of the singular number shall be considered to include the plural, words of the plural
number shall be considered to include the singular, and words of the masculine, feminine or
neuter gender shall be considered to include the other genders.
32. SECTION ContinuinQ Disclosure UndertakinQ. (a) Definitions. As used in this
Section, the following terms have the meanings ascribed to such terms below:
33.
34. "MSRB" means the Municipal Securities Rulemaking Board.
35.
36. "NRMSIR" means each person whom the SEC or its staff has determined to be a
nationally recognized municipal securities information repository within the meaning of the Rule
from time to time.
37.
38. "Rule" means SEC Rule 15c2-12, as amended from time to time.
39.
40. "SEe" means the United States Securities and Exchange Commission.
41.
42. "SID" means any person designated by the State of Texas or an authorized department,
officer, or agency thereof as, and determined by the SEC or its staff to be, a state information
depository within the meaning of the Rule from time to time.
43.
44. (b) Annual Reports. The Corporation shall provide annually to any SID, within six
months after the end of each fiscal year (beginning with the fiscal year ending September 30,
2000) financial information and operating data with respect to the Corporation of the general
type included in the final Official Statement approved by Section 32 of this Resolution, being the
information described in Exhibit E hereto. Financial statements to be provided shall be (1)
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prepared in accordance with the accounting principles described in Exhibit E hereto and
(2) audited, if the Corporation commissions an audit of such statements and the audit is
completed within the period during which they must be provided. If audited financial statements
are not available at the time the financial information and operating data must be provided, then
the Corporation shall provide unaudited financial statements for the applicable fiscal year to any
SID with the financial information and operating data and will file the annual audit report when
and if the same becomes available.
45.
46. If the Corporation changes its fiscal year, it will notify any SID of the change (and of the
date of the new fiscal year end) prior to the next date by which the Corporation otherwise would
be required to provide financial information and operating data pursuant to this Section.
47.
48. The financial information and operating data to be provided pursuant to this Section may
be set forth in full in one or more documents or may be included by specific reference to any
document (including an official statement or other offering document, if it is available from the
MSRB) that theretofore has been provided to any SID or filed with the SEC.
49.
50. (c) Material Event Notices. The Corporation shall notify any SID and either each
NRMSIR or the MSRB, in a timely manner, of any of the following events with respect to the
Bonds, if such event is material within the meaning of the federal securities laws:
51.
1.
2.
3.
d ifficu Ities;
4.
difficulties;
5.
6.
Bonds;
7.
8.
9.
10.
Bonds; and
11.
Principal and interest payment delinquencies;
Non-payment related defaults;
Unscheduled draws on debt service reserves reflecting financial
Unscheduled draws on credit enhancements reflecting financial
Substitution of credit or liquidity providers, or their failure to perform;
Adverse tax opinions or events affecting the tax-exempt status of the
Modifications to rights of holders of the Bonds;
Bond calls;
Defeasances;
Release, substitution, or sale of property securing repayment of the
Rating changes.
The Corporation shall notify any SID, in a timely manner, of any failure by the
Corporation to provide financial information or operating data in accordance with subsection (b)
of this Section by the time required by such Section.
(d) Limitations, Disclaimers, and Amendments. The Corporation shall be obligated
to observe and perform the covenants specified in this Section while, but only while, the
Corporation remains an "obligated person" with respect to the Bonds within the meaning of the
Rule, except that the Corporation in any event will give the notice required by subsection (c)
hereof of any Bond calls and defeasance that cause the Corporation to be no longer such an
"obligated person."
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The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or
any legal or equitable right, remedy, or claim hereunder to any other person. The Corporation
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the Corporation's financial results, condition, or prospects or hereby undertake
to update any information provided in accordance with this Section or otherwise, except as
expressly provided herein. The Corporation does not make any representation or warranty
concerning such information or its usefulness to a decision to invest in or sell Bonds at any
future date.
UNDER NO CIRCUMSTANCES SHALL THE CORPORATION BE LIABLE TO THE
HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN
CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY
BREACH BY THE CORPORATION, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS
PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND
REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF
ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC
PERFORMANCE.
No default by the Corporation in observing or performing its obligations under this
Section shall constitute a breach of or default under this Resolution for purposes of any other
provision of this Resolution.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the Corporation under federal and state securities laws.
The provisions of this Section may be amended by the Corporation from time to time to
adapt to changed circumstances resulting from a change in legal requirements, a change in law,
or a change in the identity, nature, status, or type of operations of the Corporation, but only if (1)
the provisions of this Section, as so amended, would have permitted an underwriter to purchase
or sell Bonds in the primary offering of the Bonds in compliance with the Rule, taking into
account any amendments or interpretations of the Rule to the date of such amendment, as well
as such changed circumstances, and (2) either (a) the Holders of a majority in aggregate
principal amount (or any greater amount required by any other provision of this Resolution that
authorizes such an amendment) of the Outstanding Bonds consent to such amendment or (b) a
Person that is unaffiliated with the Corporation (such as nationally recognized bond counsel)
determines that such amendment will not materially impair the interests of the Holders and
beneficial owners of the Bonds. The provisions of this Section may also be amended from time
to time or repealed by the Corporation if the SEC amends or repeals the applicable provisions of
the Rule or a court of final jurisdiction determines that such provisions are invalid, but only if and
to the extent that reservation of the Corporation's right to do so would not prevent underwriters
of the initial public offering of the Bonds from lawfully purchasing or selling Bonds in such
offering. If the Corporation so amends the provisions of this Section, it shall include with any
amended financial information or operating data filed with each NRMSIR and SID pursuant to
subsection (b) of this Section an explanation, in narrative form, of the reasons for the
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amendment and of the impact of any change in the type of financial information or operating
data so provided.
1. SECTION Insurance. The Bonds have been sold with the principal of and interest
thereon being insured by Ambac Indemnity Corporation (hereinafter called "Ambac") pursuant to
a Municipal Bond Insurance Policy. In accordance with the terms and conditions applicable to
insurance provided by Ambac, the Corporation covenants and agrees that, in the event the
principal and interest due on the Bonds shall be paid by Ambac pursuant to the policy referred
to this Section, the assignment and pledge of all funds and all covenants, agreements and other
obligations of the Corporation to the Holders shall continue to exist and Ambac shall be
subrogated to the rights of such Holders; and furthermore, the Corporation covenants and
agrees that:
2.
(a) Consent of Ambac where Holder Consent Required. Ambac
shall be deemed to be the holder of the Bonds insured by Ambac at all times for
the purpose of the execution and delivery of any amendment, change or
modification of this Resolution or the initiation by Holders of any action to be
taken under this Resolution at the Holder's request, which under this Resolution
(or under such underlying documents requires the written approval or consent of
or can be initiated by the Holders of a majority (50% percent) in aggregate
principal amount of the Bonds at the time Outstanding.
(b) Defeasance. In the event that the principal and redemption price,
if applicable, and interest due on the Bonds shall be paid by Ambac pursuant to
the policy referred to in this Section, all covenants, agreements and other
obligations of the Corporation to the Holders shall continue to exist and Ambac
shall be subrogated to the rights of such Holders.
(c) Notices to be Given to Ambac. While the Municipal Bond Guaranty
Insurance Policy is in effect, the Corporation shall furnish to Ambac:
(1) as soon as practicable after the filing thereof, a copy of
any financial statement of the Corporation and a copy of any audit
and annual report of the Corporation;
(2) a copy of any notice to be given to the registered
owners of the Bonds, including, without limitation, notice of any
redemption or defeasance of Bonds, and any certificate rendered
pursuant to this Resolution relating to the security for the Bonds;
and
(3) such additional information as it may reasonably
request.
The Corporation will permit Ambac to discuss the affairs, finances and
accounts of the Corporation, or any information Ambac may reasonably request
regarding the security for the Bonds with appropriate officers of the Corporation.
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The Corporation will permit Ambac to have access to and make copies of all
books and records relating to the Bonds at any reasonable time.
(d) Consent of Ambac. Any provision of this Resolution expressly
recognizing or granting rights in or to Ambac may not be amended in any manner
which affects the rights of Ambac hereunder without the prior written consent of
Ambac. Furthermore, anything in this Resolution to the contrary notwithstanding,
upon the occurrence and continuance of an event of default, Ambac shall be
entitled to control and direct the enforcement of all rights and remedies granted
to the Holders of the Bonds for the benefit of such Holders.
(e) ConcerninQ the Bond Insurance Policv. As long as insurance for
the Bonds shall be in full force and effect, the Corporation agrees to comply with
the following provisions:
(1) if five (5) days prior to an interest payment date for the
Bonds the Corporation determines that there will be insufficient
funds in the Interest and Sinking Fund to pay the principal of or
interest on the Bonds on such interest payment date, the
Corporation shall so notify Ambac. Such notice shall specify the
amount of the anticipated deficiency, the Bonds to which such
deficiency is applicable and whether such Bonds will be deficient
as to principal or interest, or both.
(2) the Corporation shall, after giving notice to Ambac as
provided in (1) above, make available to Ambac and the United
States Trust Company of New York, as insurance trustee for
Ambac, the registration books of the Corporation maintained by
the Paying Agent/Registrar, and all records relating to the funds
and accounts maintained under this Resolution.
(3) the Corporation shall cause the Paying Agent/Registrar
to provide Ambac and the United States Trust Company of New
York with a list of registered owners of Bonds entitled to receive
principal or interest payments from Ambac under the terms of the
Municipal Bond Insurance Policy, and shall cause the Paying
Agent/Registrar to make arrangements with United States Trust
Company of New York (i) to mail checks or drafts to the registered
owners of Bonds entitled to receive full or partial interest
payments from Ambac, and (ii) to pay principal upon Bonds
surrendered to United States Trust Company of New York by the
registered owners of Bonds entitled to receive full or partial
principal payments from Ambac.
(4) the Corporation shall cause the Paying Agent/Registrar
to notify, at the time it provides notice to Ambac pursuant to (1)
above, the registered owners of Bonds entitled to receive the
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payment of principal or interest thereon from Ambac (i) as to the
fact of such entitlement, (ii) that Ambac will remit to them all or a
part of the interest payments next coming due, (iii) that should
they be entitled to receive full payment of principal from Ambac
they must tender their Bonds (along with a form of transfer of title
thereto) for payment to United States Trust Company of New
York, as insurance trustee for Ambac, and not the Paying Agent/
Registrar, and (iv) that should they be entitled to receive partial
payment of principal from Ambac they must tender their Bonds for
payment thereon first to the Paying Agent/Registrar, who shall
note on such Bonds the portion of the principal paid by the Paying
Agent/Registrar, and then, along with a form of transfer of title
thereto, to Ambac, which will then pay the unpaid portion of
principal.
(5) Ambac shall, to the extent it makes a payment of
principal of or interest on Bonds, become subrogated to the rights
of the recipients of such payments in accordance with the terms of
the Municipal Bond Insurance Policy, and to evidence such
subrogation (i) in the case of subrogation as to claims for past due
interest, the Corporation shall cause the Paying Agent/Registrar to
note Ambac's rights as subrogee on the registration books of the
Corporation maintained by the Paying Agent/Registrar upon
receipt from Ambac of proof of the payment of interest thereon to
the registered owners of the Bonds, and (ii) in the case of
subrogation as to claims for past due principal, the Corporation
shall cause the Paying Agent/Registrar to note Ambac's rights as
subrogee on the registration books of the Corporation maintained
by the Paying Agent/ Registrar upon surrender of the Bonds by
the registered owners thereof together with proof of the payment
of principal thereof.
1. SECTION Public MeetinQ. It is officially found, determined, and declared that the
meeting at which this Resolution 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
Resolution, was given, all as required by VTC.A., Government Code, Chapter 551, as
amended.
2.
3. SECTION Effective Date. This Resolution shall be in force and effect from and
after its passage on the date shown below.
4.
5.
6.
7.
8.
9.
10.
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PASSED AND ADOPTED, this March 21, 2000.
COLLEYVILLE ECONOMIC DEVELOPMENT
CORPORATION
11.
ATTEST:
Secretary
(Corporation Seal)
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President, Board of Directors
Exhibit E
to
Resolution
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 43 of this Resolution.
Annual Financial Statements and Operating Data
The financial information and operating data with respect to the City to be provided
annually in accordance with such Section are as specified (and included in the Appendix or
under the headings of the Official Statement referred to) below:
1. The financial statements of the Corporation appended to the Official
Statement as Appendix B, but for the most recently concluded fiscal year.
2. The information in Tables 1 through 4 of the Official Statement.
Accounting Principles
The accounting principles referred to in such Section are the generally accepted
accounting principles as applicable to governmental units as prescribed by The Government
Accounting Standards Board.
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