08-19-1993 (City Council) Agenda Packet •
Agenda
WORKSESSION
Wylie City Council
Wylie Municipal Complex
August 19, 1993
7:00 p.m.
CALL TO ORDER
ACTION ITEM
Discuss and Consider All Matters Incident and Related to the Issuance
and Sale of "CITY OF WYLIE, TEXAS, TAX AND WATERWORKS
AND SEWER SYSTEM SURPLUS REVENUE REFUNDING BONDS,
SERIES 1993", Dated August , 1993, Including the Adopting of an
Ordinance Authorizing the Issuance of Such Bonds and Approving and
Authorizing the Execution of a Paying Agent/Registrar Agreement, a
Purchase Contract and a Special Escrow Agreement and the Adoption of a
Resolution Providing for the Redemption of Certain Outstanding
Obligations of the City.
HOLD JOINT WORKSESSION WITH MEMBERS OF THE PLANNING AND
ZONING COMMISSION TO DISCUSS DEVELOPMENT OF
COMPREHENSIVE PLAN
ADJOURNMENT
4c4 ‘.,e 1,44. kil/e/c.t4.)
A RESOLUTION providing for the redemption of certain
outstanding obligations of the City; and resolving
other matters incident and related to the
redemption of such obligations.
WHEREAS, pursuant to ordinances passed and adopted by the City
Council of the City of Wylie, Texas, the following described
obligations were duly authorized to be issued and are currently
outstanding, to wit:
(1) City of Wylie, Texas, Waterworks and Sewer
System Revenue Bonds, Series Ii71, dated March 1, 1971,
aggregating in principal amount $80,000, and scheduled to '
mature on June 1, 1994 through June 1, 1996;
(2) City of Wylie, Texas, Waterworks and Sewer
System Revenue Bonds, Series 1980, dated March 1, 1980,
aggregating in principal amount 390,000, and scheduled
to mature on June 1, 1997 through June 1, 2005;
(3) City of Wylie, Texas, Waterworks and Sewer
System Revenue Bonds, Series 1986, dated July 1, p56,
aggregating in principal amount $130,000, and scheduled
to mature on June 1, 1994 through June 1, 2006;
(4) City of Wylie, Texas, General Obligation Bonds,
Series 1986, dated August 15, 16., aggregating in
principal amount $1,280,000, and scheduled to mature on
February 15, 1997 through February 15, 2006;
(5) City of Wylie, Texas, Tax and Waterworks and
Sewer System Limited Pledge Revenue Certificates of
Obligation, Series 1988, dated May 15, 1988, aggregating
in principal amount PTO,000, and scheduled to mature on
February 15, 1999 through February 15, 2008; and
(6) City of Wylie, Texas, Tax and Waterworks and
Sewer System Limited Pledge Revenue Certificates of
Obligation, Series 1990, dated February 15, 1990,
aggregating in principal amount $2,375,000, and
scheduled to mature on February 15, 2001 through
February 15, 2010;
AND WHEREAS, the above identified obligations were authorized,
issued, sold and delivered subject to the right and authority of
the City to redeem the same prior to maturity, as provided in the
respective authorizing ordinances and in said obligations; and
0109076
WHEREAS, in connection with the advance refunding of the above
described obligations, the Council hereby finds and determines that
obligations of the respective series should be redeemed prior to
their maturities on the dates and in the manner hereinafter
provided and in accordance with the requirements prescribed
therefor and notice of redemption of such obligations should be
approved and authorized to be given at this time by the Council;
now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXAS:
SECTION 1: The bonds of that series known as "City o
Texas, Waterworks and Sewer System Revenue Bonds, Seri- ',
dated March 1, 1971, being bonds numbered 53 through 68, - - in
the denomination of $5, 000, and maturing in the years 1994 through
1996, and aggregating in principal amount $80,000, shall be
redeemed and the same are hereby called for redemption on
December 1, 1993, at the price of par and accrued interest to the
date of redemption. The City Secretary is hereby authorized and
directed to cause a notice of redemption to be filed with
Ameritrust Texas National Association (successor paying agent to
Mercantile National Bank at Dallas) , the "paying agent", which
notice of redemption shall be substantially in the form and content
of Exhibit A attached hereto and incorporated herein by reference
as a part of this resolution for all purposes.
SECTION 2 : The bonds of that series known as "City of W lie,
Texas, Waterworks and Sewer System Revenue Bonds, Serie
dated March 1, 1980, being bonds numbered 3 through 80, eac e
denomination of $5, 000, and maturing in the years 1997 through
2005, and aggregating in principal amount $390,000, shall be
redeemed and the same are hereby called for redemption on June 1,
1995, at the price of par and accrued interest to the date of
redemption. The City Secretary is hereby authorized and directed
to cause a notice of redemption to be filed with Ameritrust Texas
National Association (successor paying agent to Mercantile National
Bank at Dallas) , the "paying agent", which notice of redemption
shall be substantially in the form and content of Exhibit B
attached hereto and incorporated herein by reference as a part of
this resolution for all purposes.
SECTION 3: The bonds of that series known as "City of Wylie,
Texas, Waterw- Sewer System Revenue Bonds, Series 1986",
dated July . . turing in the years 1994 through 2006, and
aggregating i • cipal amount $130,000, shall be redeemed and the
same are hereby called for redemption on December 1, 1993, at the
price of par and accrued interest to the date of redemption. The
City Secretary is hereby authorized and directed to file a copy of
this resolution, together with a suggested form of notice of
0109076
-2-
redemption to be sent to bondholders, with Ameritrust Texas
National Association (successor paying agent/registrar to MBank
Dallas, N.A. ) , in accordance with the redemption provisions
applicable to such bonds; such suggested form of notice of
redemption being attached hereto as Exhibit C and incorporated
herein by reference as a part of this resolution-for all purposes.
SECTION 4: The bonds of that series known as "City of Wylie,
Texas, General Obligation Bonds, Serie dated August 15,
1986, maturing in the years 1997 throug , and aggregating in
principal amount $1,280,000, shall be redeemed and the same are
hereby called for redemption on February 15, 1996, at the price of
par and accrued interest to the date of redemption. The City
Secretary is hereby authorized and directed to file a copy of this
resolution, together with a suggested form of notice of redemption
to be sent to bondholders, with Ameritrust Texas National
Association (successor paying agent/registrar to MBank Dallas,
N.A. ) , in accordance with the redemption provisions applicable to
such bonds; such suggeste4form of notice of redemption being
attached hereto as Exhibit nd incorporated herein by reference
as a part of this resolution for all purposes.
SECTION 5: The certificates of obligation of that series known
as "City of Wylie, Texas, Tax and Waterworks and Sewer
Limited Pledge Revenue Certificates of Obligation, Seri =
dated May 15, 1988, maturing in the years 1999 through 2 • . = - •
aggregating in principal amount $910,000, shall be redeemed and the
same are hereby called for redemption on February 15, 1998, at the
price of par and accrued interest to the date of redemption. The
City Secretary is hereby authorized and directed to file a copy of
this resolution, together with a suggested form of notice of
redemption to be sent to bondholders, with Ameritrust Texas
National Association (successor paying agent/registrar to MTrust
Corp National Association) , in accordance with the redemption
provisions applicable to such obligations; such suggested f of
notice of redemption being attached hereto as Exhibit &and
incorporated herein by reference as a part of this resoluti.n for
all purposes.
SECTION 6: The certificates of obligation of that series known
as "City of Wylie, Texas, Tax and Waterworks and Sewer
Limited Pledge Revenue Certificates of Obligation, Seri - 1990,
dated February 15, 1990, maturing in the years 2001 through = = ,
and aggregating in principal amount $2,375,000, shall be redeemed
and the same are hereby called for redemption on February 15, 2000,
at the price of par and accrued interest to the date of redemption.
The City Secretary is hereby authorized and directed to file a copy
of this resolution, together with a suggested form of notice of
redemption to be sent to bondholders, with Ameritrust Texas
National Association (successor paying agent/registrar to MTrust
0109076
-3-
Corp National Association) , in accordance with the redemption
provisions applicable to such obligations; such suggested • of
notice of redemption being attached hereto as Exhibi4Mpand
incorporated herein by reference as a part of this resolu • for
all purposes.
SECTION 7: The redemption of the obligations described above
being associated with the advance refunding of such obligations,
the approval, authorization and arrangements herein given and
provided for the redemption of such obligations on the redemption
dates designated therefor and in the manner provided shall be
irrevocable upon the issuance and delivery of the "City of Wylie,
Texas, Tax and Waterworks and Sewer System Surplus Revenue
Refunding Bonds, Series 1993", dated August 1, 1993, and the City
Secretary is hereby authorized and directed to make all
arrangements necessary to notify the holders of such obligations of
the City's decision to redeem such obligations on the dates and in
the manner herein provided and in accordance with the ordinances
authorizing the issuance of the obligations.
PASSED AND ADOPTED, this Augu 93.
CITY OF WYLIE, TEXAS
Mayor
ATTEST:
City Secretary
(City Seal)
•
0109076
-4-
EXHIBIT A
NOTICE OF REDEMPTION
CITY OF WYLIE, TEXAS,
WATERWORKS AND SEWER SYSTEM REVENUE BONDS
SERIES 1971 ���///TTT///
DATED MARCH 1, 1971
NOTICE IS HEREBY GIVEN that the City of Wylie, Texas has
called for redemption on December 1, 1993, the bonds of the series
described above and further identified as follows:
Bonds numbered 53 through 68, each in the denomination
of $5,000, aggregating in principal amount $80,000,
and scheduled to mature on June 1 in each of the years
1994 through 1996.
NOTICE IS FURTHER GIVEN that due and proper arrangements
have been made for providing Ameritrust Texas National Association
(successor paying agent to Mercantile National Bank at Dallas) ,
the paying agent for such bonds, with sufficient funds to pay the
redemption price of such bonds. Such bonds shall cease to bear
interest from and after such redemption date.
THIS NOTICE is issued and given pursuant to the terms and
conditions prescribed for the redemption of said bonds and
pursuant to a resolution passed by the City Council of the City of
Wylie, Texas.
WITNESS MY OFFICIAL SIGNATURE, this • -y of August,
1993 .
City Secretary
City of Wylie, Texas
The above and foregoing Notice of Redemption was duly
received and filed with Ameritrust Texas National Association,
this .
AMERITRUST TEXAS NATIONAL
ASSOCIATION, Dallas, Texas
By:
Title:
(Bank Seal)
oloeooe
EXHIBIT B
NOTICE OF REDEMPTION
CITY OF WYLIE, TEXAS,
WATERWORKS AND SEWER SYSTEM REVENUE BONDS
SERIES 1980 .
DATED MARCH ; 1980
•
NOTICE IS HEREBY GIVEN that City of Wylie, Texas has
called for redemption on ne she bonds of the series
described above and further identified as follows:
Bonds numbered 3 through 80, each in the denomination
of $5,000, aggregating in principal amount $390,000,
and scheduled to mature on June 1 in each of the years
1997 through 2005.
NOTICE IS FURTHER GIVEN that due and proper arrangements
have been made for providing Ameritrust Texas National Association
(successor paying agent to Mercantile National Bank at D- -
the paying agent for such bonds, with sufficient ' • •ay the
redemption price of such bonds. Such bonds ski, II cease to bear
interest from and after such redemption date.
THIS NOTICE is issued and given pursuant to the terms and
conditions prescribed for the redemption of said bonds and
pursuant to a resolution passed by the City Council of the City of
Wylie, Texas.
WITNESS MY OFFICIAL SIGNATURE, this t say of August,
1993 .
City Secretary
City of Wylie, Texas
The above and foregoing Notice of Redemption was duly
received and filed with Ameritrust Texas National Association,
this
AMERITRUST TEXAS NATIONAL
ASSOCIATION, Dallas, Texas
By:
Title:
(Bank Seal)
oloeooe
EXHIBIT C
NOTICE OF REDEMPTION
CITY OF WYLIE, TEXAS,
WATERWORKS AND SEWER SYSTEM REVENUE BONDS,
SERIES 1986
DATED JULY 1, 1986
NOTICE IS HEREBY GIVEN that all bonds of the above series
maturing on and after June 1, 1994 and aggregating in principal
amount $130,000 have been called for redemption on December 1,
1993 at the redemption price of par and accrued interest to the
date of redemption, such bonds being identified as follows:
Year of Principal Amount
Maturity Outstanding
•
1994 $ 5,000
1995 5,000
1996 5,000
1997 10, 000
1998 10,000 II �
1999 10,000
2000 10,000
2001 10,000
2002 10,000
2003 10,000
2004 15,000
2005 15,000
2006 15,000
ALL SUCH BONDS shall become due and payable on December 1,
1993, and interest thereon shall cease to accrue from and after
said redemption date and payment of the redemption price of said
bonds shall be paid to the registered owners of the bonds only
upon presentation and surrender of such bonds to the principal
office of Ameritrust Texas National Association (successor paying
agent/registrar to MBank Dallas, N.A. ) .
THIS NOTICE is issued and given pursuant to the terms and
conditions prescribed for the redemption of said bonds and
pursuant to a resolution by the City Council of the City of Wylie,
Texas.
AMERITRUST TEXAS NATIONAL
ASSOCIATION,
as Paying Agent/Registrar
Address: P. 0. Box 2320
Dallas, Texas 75221-2320
0106006
EXHIBIT D
NOTICE OF REDEMPTION
CITY OF WYLIE, TEXAS,
GENERAL OBLIGATION BONDS,
SERIES 1986
DATED AUGUST 15, 1986
NOTICE IS HEREBY GIVEN that all bonds of the above series
maturing on and after February 15, 1997 and aggregating in
principal amount $1,280,000 have been called for redemption on
February 15, 1996 at the redemption price of par and accrued
interest to the date of redemption, such bonds being identified as
follows:
Year of Principal Amount
Maturity Outstandina
1997 $ 85,000
1998 95,000
1999 100,000
2000 110,000
2001 120,000
2002 130, 000
2003 140,000
2004 155,000
2005 165,000
2006 180, 000
LL SUCH BONDS shall become due and payable on February 15,
1996, and interest thereon shall cease to accrue from and after
sal edemption date and payment of the redemption price of said
nds shall be paid to the registered owners of the bonds only
upon presentation and surrender of such bonds to the principal
office of Ameritrust Texas National Association (successor paying
agent/registrar to MBank Dallas, N.A. ) .
THIS NOTICE is issued and given pursuant to the terms and
conditions' prescribed for the redemption of said bonds and
pursuant to a resolution by the City Council of the City of Wylie,
Texas.
AMERITRUST TEXAS NATIONAL
ASSOCIATION,
as Paying Agent/Registrar
Address: P. 0. Box 2320
Dallas, Texas 75221-2320
0109006
EXHIBIT
NOTICE OF REDEMPTION
CITY OF WYLIE, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM
LIMITED PLEDGE REVENUE CERTIFICATES OF OBLIGATION
SERIES 1988
DATED MAY 15, 1988
NOTICE IS HEREBY GIVEN that all certificates of the above
series maturing on and after February 15, 1999 and aggregating in
principal amount $910,000 have been called for redemption on
February 15, 1998 at the redemption price of par and accrued
interest to the date of redemption, such certificates being
identified as follows:
Year of Principal Amount
Maturity Outstanding
1999 $ 60,000 0\\O
2000 65,000 'l
2001 70,000
2002 80,000
2003 85,000
2004 90,000
2005 100,000
2006 110,000
2007 120,000
2008 130,000
ALL SUCH CERTIFICATES shall become due and payable on
February 15, 1998, and interest thereon shall cease to accrue from
and after said redemption date and payment of the redemption price
of said certificates shall be paid to the registered owners of the
obligations only upon presentation and surrender of such
certificates to the principal office of Ameritrust Texas National
Association, Dallas, Texas (successor paying agent/registrar to
MTrust Corp, National Association) .
THIS NOTICE is issued and given pursuant to the terms and
conditions prescribed for the redemption of said certificates and
pursuant to a resolution by the City Council of the City of Wylie,
Texas. •
AMERITRUST TEXAS NATIONAL
ASSOCIATION,
as Paying Agent/Registrar
Address: P. 0. Box 2320
Dallas, Texas 75221-2320
0100006
EXHIBIT F
NOTICE OF REDEMPTION
CITY OF WYLIE, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM
LIMITED PLEDGE REVENUE CERTIFICATES OF OBLIGATION
SERIES 1990
DATED FEBRUARY 15 990
NOTICE IS HEREBY GIVEN that al certificates of the above
series maturing on and after February, 15, 2 a aggregating in
principal amount $2,375,000 have been led f redemption on
February 15, 2000 at the redemption price of par and accrued
interest to the date of redemption„/ such certificates being
identified as follows:
Year of / Principal Amount
Maturity Outstanding
j,.
2001 $7 175,000
2002 175,000
2003 200,000
2004 200,000
2005 225,000
2006 250,000
2007 250,000
2008 • 275,000
2009 300,000
2010 325, 000
ALL SUCH CERTIFICATES shall become due and payable on
February 15, 2000, and interest thereon shall cease to accrue from
and after said redemption date and payment of the redemption price
of said certificates shall be paid to the registered owners of the
obligations only upon presentation and surrender of such
certificates to the principal office of Ameritrust Texas National
Association, Dallas, Texas (successor paying agent/registrar to
MTrust Corp, National Association) .
THIS NOTICE is issued and given pursuant to the terms and
conditions prescribed for the redemption of said certificates and
pursuant to a resolution by the City Council of the City of Wylie,
Texas.
AMERITRUST TEXAS NATIONAL
ASSOCIATION,
as Paying Agent/Registrar
Address: P. 0. Box 2320
Dallas, Texas 75221-2320
0100006
ORDINANCE NO.
AN ORDINANCE authorizing the issuance of "CITY OF WYLIE,
TEXAS, TAX AND WATERWORKS AND SEWER SYSTEM SURPLUS
REVENUE REFUNDING BONDS, SERIES 1993"; specifying
the terms and features of said bonds; providing for
the payment of said bonds by the levy of an ad
valorem tax upon all taxable property within the
City and a pledge of the net revenues derived from
the operation of the City's Waterworks and Sewer
System; and resolving other matters incident and
relating to the issuance, payment, security, sale
and delivery of said bonds, including the approval
and execution of a Paying Agent/Registrar
Agreement, a Purchase Contract and a Special Escrow
Agreement and the approval and distribution of an
Official Statement pertaining thereto; and
providing an effective date.
WHEREAS, the City Council of the City of Wylie, Texas (the
"City") has heretofore issued, sold, and delivered, and there is
currently outstanding, obligations totalling in principal amount
/1 $5, 165, 000 (collectively, the "Refunded Obligations") of the
following issues or series, to wit:
(1) City of Wylie, Texas, Waterworks and
Sewer System Revenue Bonds, Series 1971, dated
March 1, 1971, maturing on June 1 ii71M-Ao-h of the
years 1994 through 1996, and aggregating in
principal amount $ 80,000
(2) City of Wylie, Texas, Waterworks and
Sewer System Revenue Bonds, Series 1980, dated
March 1, 1980, maturing on June 1 in each of the
years 1997 through 2005, and aggregating in
principal amount $ 390, 000
(3) City of Wylie, Texas, Waterworks and
Sewer System Revenue Bonds, Series 1986, dated
July 1, 1986, maturing on June 1 in each of the
years 1994 through 2006, and aggregating in
principal amount $ 130,000
(4) City of Wylie, Texas, General Obligation
Bonds, Series 1986, dated August 15, 1986,
maturing on February 15 in each of the years 1997
through 2006, and aggregating in principal amount $1,280,000
0106034
(5) City of Wylie, Texas, Tax and Waterworks
and Sewer System Limited Pledge Revenue
Certificates of Obligation, Series 1988, dated
May 15, 1988, maturing on February 15°' n- each of
the years 1999 through 2008, and aggregating in
principal amount $ 910,000
(6) City of Wylie, Texas, Tax and Waterworks
and Sewer System Limited Pledge Revenue
Certificates of Obligation, Series 1990, dated
February 15, 1990, maturing on Feb in each
of the years 2001 through 2010, and aggregating in
principal amount $2, 375,000
WHEREAS, pursuant to the provisions of Article 717k,
V.A.T.C.S. , as amended, the City Council is authorized to tnie
refunding bonds and deposit the proceeds of sale thereof directly
with the place of payment for the Refunded Obligations, and such
deposit, when made in accordance with said statute, shall
constitute the making of firm banking and financial arrangements
for the discharge and final payment of the Refunded Obligations;
and
WHEREAS, the City Council hereby finds and determines
refunding bonds should be issued and sold at this time to refund
the Refunded Obligations, and such refunding will result in gross
debt service savings on such indebtedness of approximately
$580,977. 62 and present value savings of approximately $368,728.33;
now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXAS:
SECTION 1: Authorization, Designation, Principal Amount,
Purpose. Refunding bonds of the City shall be and are hereby
authorized to be issued in the aggregate principal amount of
$5, 890,000 to be designated and bear the title "CITY OF WYLIE,
TEXAS, TAX AND WATERWORKS AND SEWER SYSTEM SURPLUS REVENUE
REFUNDING BONDS, SERIES 1993" (hereinafter referred to as the
"Bonds") , for the purpose of refunding certain outstanding
obligations of the City (identified in the preamble hereof as the
"Refunded Obligations") and payingg costs of issuance, in conformity
with the Constitution and laws oT the State of Texas, including
Article 717k, V.A.T.C.S. , as amended.
SECTION 2: Fully Registered Obligations - Bond Date -
Authorized Denominations - Stated Maturities - Interest Rates. The
Bonds shall be issued as fully registered obligations only, shall
be dated August 1, 1993 (the "Bond Date") , shall be in
denominations of $5,000 or any integral multiple (within a Stated
oioe®s4
-2-
Maturity, except for the Initial Bond authorized in Section 8
hereof) thereof, and shall become due and payable on February 15 in
each of the years and in principal amounts (the "Stated
Maturities") and bear interest at the rate(s) per annum in
accordance with the following schedule:
YEAR OF PRINCIPAL INTEREST
MATURITY INSTALLMENTS RATE
1994 $135,000 2.70%
1995 115,000 3. 10%
1996 120,000 3 .40%
1997 210, 000 3 .70%
1998 225,000 3 .90%
1999 285,000 4 .00%
2000 300,000 4.10%
2001 485,000 4.25%
2002 500,000 4.40%
2003 530,000 4.60%
2004 540,000 4.80%
2005 580,000 5.00%
2006 555,000 5.10%
2007 360,000 5.20%
2008 390,000 5.30%
2009 270,000 5.40%
2010 290,000 5.40%
The Bonds shall bear interest on the unpaid principal amounts
from the Bond Date at the rate(s) per annum shown above in this
Section, and such interest (calculated on the basis of a 360-day
year of twelve 30-day months) shall be payable on February 15 and
August 15 in each year, commencing February 15, 1994.
SECTION 3 : Terms of Payment - Paving Agent/Registrar. The
principal of, premium, if any, and the interest on the Bonds, due
and payable by reason of maturity, redemption or otherwise, shall
be payable only to the registered owners or holders of the Bonds
(hereinafter called the "Holders") appearing on the registration
and transfer books maintained by the Paying Agent/Registrar and the
payment thereof shall be in any coin or currency of the United
States of America, which at the time of payment is legal tender for
the payment of public and private debts, and shall be without
exchange or collection charges to the Holders.
The selection and appointment of Ameritrust Texas National
Association to serve as Paying Agent/Reg strar for the Bonds is
hereby approved and confirmed. Books and records relating to the
registration, payment, transfer and exchange of the Bonds (the
"Security Register") shall at all times be kept and maintained on
behalf of the City by the Paying Agent/Registrar, as provided
mom
-3-
herein and in accordance with the terms and provisions of a "Paying
Agent/ Registrar Agreement", substantially in the form attached
hereto as Exhibit A and such reasonable rules and regulations as
the Paying Agent/Registrar and the City may prescribe. The Mayor
and City Secretary are authorized to execute and deliver such
Agreement in connection with the delivery of the Bonds. The City
covenants to maintain and provide a Paying Agent/Registrar at all
times until the Bonds are paid and discharged, and any successor
Paying Agent/Registrar shall be a bank, trust company, financial
institution or other entity qualified and authorized to serve in
such capacity and perform the duties and services of Paying
Agent/Registrar. Upon any change in the Paying Agent/Registrar for
the Bonds, the City agrees to promptly cause a written notice
thereof to be sent to each Holder by United States Mail, first
class postage prepaid, which notice shall also give the address of
the new Paying Agent/Registrar.
Principal of and premium, if any, on the Bonds shall be
payable at the Stated Maturities or the redemption thereof, only
upon presentation and surrender of the Bonds to the Paying
Agent/Registrar at its principal offices in Dallas, Texas (the
"Designated Payment/Transfer Office") . Interest on the Bonds shall
be paid to the Holders whose name appears in the Security Register
at the close of business on the Record Date (the 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 Payment/Transfer
Office of the Paying Agent/Registrar is located are authorized by
law or executive order to close, then the date for such payment
shall be the next succeeding day which is not such a Saturday,
Sunday, legal holiday, or day when banking institutions are
authorized to close; and payment on such date shall have the same
force and effect as if made on the original date payment was due.
In the event of a nonpayment of interest on a scheduled
payment date, and for thirty (30) days thereafter, a new record
date for such interest payment (a "Special Record Date") will be
established by the Paying Agent/Registrar, if and when funds for
the payment of such interest have been received from the City.
Notice of the Special Record Date and of the scheduled payment date
of the past due interest (which shall be 15 days after the Special
Record Date) shall be sent at least five (5) business days prior to
the Special Record Date by United States Mail, first class postage
prepaid, to the address of each Holder appearing on the Security
0108994
-4
Register at the close of business on the last business day next
preceding the date of mailing of such notice.
SECTION 4: Redemption. (a) Optional Redemption. The Bonds
having Stated Maturities on and after February 15, 2003, shall be .
subject to redemption prior to maturity, at the option of the City,
in whole or in part in principal amounts of $5,000 or any integral
multiple thereof (and if within a Stated Maturity by lot by the
Paying Agent/Registrar) , on February 15, 2002 or on any date
thereafter at the redemption price of par plus accrued interest to
the date of redemption.
(b) Exercise of Redemption Option. At least forty-five (45)
days prior to a redemption date for the Bonds (unless a shorter
notification period shall be satisfactory to the Paying
Agent/Registrar) , the City shall notify the Paying Agent/Registrar
of the decision to redeem Bonds, the principal amount of each
Stated Maturity to be redeemed, and the date of redemption
therefor. The decision of the City to exercise the right to redeem
Bonds shall be entered in the minutes of the governing body of the
City.
(c) Selection of Bonds for Redemption. If less than all
Outstanding Bonds of the same Stated Maturity are to be redeemed on
a redemption date, the Paying Agent/Registrar shall treat such
Bonds as representing the number of Bonds Outstanding which is
obtained by dividing the principal amount of such Bonds by $5,000
and shall select the Bonds to be redeemed within such Stated
Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30) days
prior to a redemption date for the Bonds, a notice of redemption
shall be sent by United States Mail, first class postage prepaid,
in the name of the City and at the City's expense, to each Holder
of a Bond to be redeemed in whole or in part at the address of the
Holder appearing on the Security Register at the close of business
on the business day next preceding the date of mailing such notice,
and any notice of redemption so mailed shall be conclusively
presumed to have been duly given irrespective of whether received
by the Holder.
All notices of redemption shall (i) specify the date of
redemption for the Bonds, (ii) identify the Bonds to be redeemed
and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state
the redemption price, (iv) state that the Bonds, or the portion of
the principal amount thereof to be redeemed, shall become due and
payable on the redemption date specified, and the interest thereon,
or on the portion of the principal amount thereof to be redeemed,
shall cease to accrue from and after the redemption date, and (v)
0106934
-5-
specify that payment of the redemption price for the Bonds, or the
principal amount thereof to be redeemed, shall be made at
Designated Payment/Transfer Office of the Paying Agent/Registrar
only upon presentation and surrender thereof by the Holder. If a
Bond is subject by:its terms to prior redemption and has been
called for redemption and notice of redemption thereof has been
duly given as hereinabove provided, such 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 Bond (or of the principal amount thereof to be
redeemed) at the then applicable redemption price are held for the
purpose of such payment by the Paying Agent/Registrar.
SECTION 5: Registration - Transfer - Exchange of Bonds-
Predecessor Bonds. The Paying Agent/Registrar shall obtain,
record, and maintain in the Security Register the name and address
of each and every owner of the Bonds issued under and pursuant to
the provisions of this Ordinance, or if appropriate, the nominee
thereof. Any Bond may be transferred or exchanged for Bonds of
other authorized denominations by the Holder, in person or by his
duly authorized agent, upon surrender of such Bond to the
Designated Payment/Transfer Office of the Paying Agent/Registrar
for cancellation, accompanied by a written instrument of transfer
or request for exchange duly executed by the Holder or by his duly
authorized agent, in form satisfactory to the Paying Agent/
Registrar.
Upon surrender of any Bond (other than the Initial Bond
authorized in Section 8 hereof) for transfer at the Designated
Payment/Transfer Office of the Paying Agent/Registrar, one or more
new Bonds shall be registered and issued to the assignee or
transferee of the previous Holder; such Bonds to be in authorized
denominations, of like Stated Maturity and of a like aggregate
principal amount as the Bond or Bonds surrendered for transfer.
At the option of the Holder, Bonds (other than the Initial
Bond authorized in Section 8 hereof) may be exchanged for other
Bonds of authorized denominations and having the same Stated
Maturity, bearing the same rate of interest and of like aggregate
principal amount as the Bonds surrendered for exchange, upon
surrender of the Bonds to be exchanged at the Designated
Payment/Transfer Office of the Paying Agent/Registrar. Whenever
any Bonds are surrendered for exchange, the Paying Agent/Registrar
shall register and deliver new Bonds to the Holder requesting the
exchange.
All Bonds issued in any transfer or exchange of Bonds shall be
delivered to the Holders at the Designated Payment/Transfer Office
of the Paying Agent/Registrar or sent by United States Mail, first
0108994
-6-
class postage prepaid, to the Holders, and, upon the registration
and delivery thereof, the same shall be the valid obligations of
the City, evidencing the same obligation to pay, and entitled to
the same benefits under this Ordinance, as the Bonds surrendered in
such transfer or exchange.
All transfers or exchanges of Bonds pursuant to this Section
shall be made without expense or service charge to the Holder,
except as otherwise herein provided, and except that the Paying
Agent/Registrar shall require payment by the Holder requesting such
transfer or exchange of any tax or other governmental charges
required to be paid with respect to such transfer or exchange.
Bonds cancelled by reason of an exchange or transfer pursuant
to the provisions hereof are hereby defined to be "Predecessor
Bonds", evidencing all or a portion, as the case may be, of the
same obligation to pay evidenced by the new Bond or Bonds
registered and delivered in the exchange or transfer therefor.
Additionally, the term "Predecessor Bonds" shall include any
mutilated, lost, destroyed, or stolen Bond for which a replacement
Bond has been issued, registered and delivered in lieu thereof
pursuant to the provisions of Section 24 hereof and such new
replacement Bond shall be deemed to evidence the same obligation as
the mutilated, lost, destroyed, or stolen Bond.
Neither the City nor the Paying Agent/Registrar shall be
required to issue or transfer to an assignee of a Holder any Bond
called for redemption, in whole or in part, within 45 days of the
date fixed for the redemption of such Bond; provided, however, such
limitation on transferability shall not be applicable to an
exchange by the Holder of the unredeemed balance of a Bond called
for redemption in part.
SECTION 6: Book-Entry Only Transfers and Transactions.
Notwithstanding the provisions contained in Sections 3, 4 and 5
hereof relating to the payment, and transfer/exchange of the Bonds,
the City hereby approves and authorizes the use of "Book-Entry
Only" securities clearance, settlement and transfer system provided
by The Depository Trust Company (DTC) , a limited purpose trust
company organized under the laws of the State of New York, in
accordance with the requirements and procedures identified in the
Letter of Representation, by and between the City, the Paying
Agent/Registrar and DTC (the "Depository Agreement") relating to
the Bonds.
Pursuant to the Depository Agreement and the rules of DTC, the
Bonds shall be deposited with DTC who shall hold said Bonds for its
participants (the "DTC Participants") . While the Bonds are held by
DTC under the Depository Agreement, the Holder of the Bonds on the
Security Register for all purposes, including payment and notices,
OLO$934
-7-
shall be Cede & Co. , as nominee of DTC, notwithstanding the
ownership of each actual purchaser or owner of each Bond (the
"Beneficial Owners") being recorded in the records of DTC and DTC
Participants.
In the event DTC determines to discontinue serving as
securities depository for the Bonds or otherwise ceases to provide
book-entry clearance and settlement of securities transactions in
general or the City determines that DTC incapable of properly
discharging its duties as securities depository for the Bonds, the
City covenants and agrees with the Holders of the Bonds to cause
Bonds to be printed in definitive form and provide for the Bond
certificates to be issued and delivered to DTC Participants and
Beneficial Owners, as the case may be. Thereafter, the Bonds in
definitive form shall be assigned, transferred and exchanged on the
Security Register maintained by the Paying Agent/Registrar and
payment of such Bonds shall be made in accordance with the
provisions of Sections 3, 4 and 5 hereof.
SECTION 7: Execution - Registration. The Bonds shall be
executed on behalf of the City by the Mayor under its seal I
reproduced or impressed thereon and countersigned by the City
Secretary. The signature of said officers on the Bonds may be
manual or facsimile. Bonds bearing the manual or facsimile
signatures of individuals who are or were the proper officers of
the City on the Bond Date shall be deemed to be duly executed on
behalf of the City, notwithstanding that such individuals or either
of them shall cease to hold such offices at the time of delivery of
the Bonds to the initial purchaser(s) and with respect to Bonds
delivered in subsequent exchanges and transfers, all as authorized
and provided in the Bond Procedures Act of 1981, as amended.
No Bond shall be entitled to any right or benefit under this
Ordinance, or be valid or obligatory for any purpose, unless there
appears on such Bond either a certificate of registration
substantially in the form provided in Section 9C, manually executed
by the Comptroller of Public Accounts of the State of Texas, or his
duly authorized agent, or a certificate of registration
substantially in the form provided in Section 9D, manually executed
by an authorized officer, employee or representative of the Paying
Agent/Registrar, and either such certificate duly signed upon any
Bond shall be conclusive evidence, and the only evidence, that such
Bond has been duly certified, registered and delivered.
SECTION 8: Initial Bond(s) . The Bonds herein authorized
shall be initially issued either (i) as a single fully registered
bond in the total principal amount identified in Section 1 with
principal installments to become due and payable as provided in
Section 2 hereof and numbered T-1, or (ii) as seventeen (17) fully
registered bonds, being one bond for each year of maturity in the
0106934
-8-
applicable principal amount and denomination and to be numbered
consecutively from T-1 and upward (hereinafter called the "Initial
Bond(s) ") and, in either case, the Initial Bond(s) shall be
registered in the name of the initial purchaser(s) or the designee
thereof. The Initial Bond(s) shall be the Bonds submitted to the
Office of the Attorney General of the State of Texas for approval,
certified and registered by the Office of the Comptroller of Public
Accounts of the State of Texas and delivered to the initial
purchaser(s) . Any time after the delivery of the Initial Bond(s) ,
the Paying Agent/ Registrar, pursuant to written instructions from
the initial purchaser(s) , or the designee thereof, shall cancel the
Initial Bond(s) delivered hereunder and exchange therefor
definitive Bonds of authorized denominations, Stated Maturities,
principal amounts and bearing applicable - interest rates for
transfer and delivery to the Holders named at the addresses
identified therefor; all pursuant to and in accordance with such
written instructions from the initial purchaser(s) , or the designee
thereof, and such other information and documentation as the Paying
Agent/Registrar may reasonably require.
SECTION 9: Forms. A. Forms Generally. The Bonds, the
Registration Certificate of the Comptroller of Public Accounts of
the State of Texas, the Registration Certificate of Paying
Agent/Registrar, and the form of Assignment to be printed on each
of the Bonds, shall be substantially in the forms set forth in this
Section with such appropriate insertions, omissions, substitutions,
and other variations as are permitted or required by this Ordinance
and may have such letters, numbers, or other marks of
identification (including identifying numbers and letters of the
Committee on Uniform Securities Identification Procedures of the
American Bankers Association) and such legends and endorsements
(including insurance legends in the event the Bonds are sold with
insurance and any reproduction of an opinion of counsel) thereon as
may, consistently herewith, be established by the City or
determined by the officers executing such Bonds as evidenced by
their execution. Any portion of the text of any Bonds may be set
forth on the reverse thereof, with an appropriate reference thereto
on the face of the Bond.
The definitive Bonds and the Initial Bond(s) shall be printed,
lithographed, or engraved or typewritten, photocopied or otherwise
reproduced in any other similar manner, all as determined by the
officers executing such Bonds as evidenced by their execution
thereof.
0106934
B. Form of Definitive Bond.
REGISTERED REGISTERED
NO. $
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF WYLIE, TEXAS, TAX AND WATERWORKS
AND SEWER SYSTEM SURPLUS REVENUE REFUNDING BOND,
SERIES 1993
Bond Date: Interest Rate: Stated Maturity: CUSIP NO:
August 1, 1993
Registered Owner:
Principal Amount: DOLLARS
The City of Wylie (hereinafter referred to as the "City") , a
body corporate and political subdivision in the County of Collin,
State of Texas, for value received, acknowledges itself indebted to
and hereby promises to pay to the order of the Registered Owner
named above, or the registered assigns thereof, on the Stated
Maturity date specified above the Principal Amount hereinabove
stated (or so much thereof as shall not have been paid upon prior
redemption) and to pay interest on the unpaid principal amount
hereof from the Bond Date at the per annum rate of interest
/specified above computed on the basis of a 360-day year of
twelve 30-day months; such interest being payable on February 15
and August 15 in each year, commencing February 15, 1994.
Principal of this Bond is payable at its Stated Maturity or
redemption to the registered owner hereof, upon presentation and
surrender, at the Designated Payment/Transfer Office of the Payng
Agent/Registrar executing the registration certificate appearing
hereon, or its successor. Interest is payable to the registered
owner of this Bond (or one or more Predecessor Bonds, as defined in
the Ordinance hereinafter referenced) whose name appears on the
"Security Register" maintained by the Paying Agent/Registrar at the
close of business on the "Record Date", which is the 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
O1O 934
-10-
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 $5,890, 000 (herein referred to
as the "Bonds") for the purpose of refunding certain outstanding
obligations of the City (identified in the Ordinance) and paying
costs of issuance, under and in strict conformity with the
Constitution and laws of the State of Texas, including
Article 717k, V.A.T.C.S. , as amended, and pursuant to an Ordinance
adopted by the City Council of the City (herein referred to as the
"Ordinance") .
The Bonds maturing on and after February 15, 2003 may be
redeemed prior to their Stated Maturities, at the option of the
City, in whole or in part in principal amounts of $5, 000 or any
integral multiple thereof (and if within a Stated Maturity by lot
by the Paying Agent/Registrar) , on February 15, 2002 , or on any
date thereafter, at the redemption price of par, together with
accrued interest to the date of redemption and upon 30 days prior
written notice being sent by United States Mail, first class
postage prepaid, to the registered owners of the Bonds to be
redeemed, and subject to the terms and provisions relating thereto
contained in the Ordinance. If this Bond (or any portion of the
principal sum hereof) shall have been duly called for redemption
and notice of such redemption duly given, then upon such redemption
date this Bond (or the portion of the principal sum hereof to be
redeemed) shall become due and payable, and interest thereon shall
cease to accrue from and after the redemption date therefor,
provided moneys for the payment of the redemption price and the
interest on the principal amount to be redeemed to the date of
redemption are held for the purpose of such payment by the Paying
Agent/Registrar. .
In the event of a partial redemption of the principal amount
of this Bond, payment of the redemption price of such principal
amount shall be made to the registered owner only upon presentation
and surrender of this Bond to the Designated Payment/Transfer
Office of the Paying Agent/Registrar, and there shall be issued to
the registered owner hereof, without charge, a new Bond or Bonds of
like maturity and interest rate in any authorized denominations
provided by the Ordinance for the then unredeemed balance of the
principal sum hereof. If this Bond is selected for redemption, in
whole or in part, the City and the Paying Agent/Registrar shall not
be required to transfer this Bond to an assignee of the registered
owner within 45 days of the redemption date therefor; provided,
however, such limitation on transferability shall not be applicable
0106934
-11-
to an exchange by the registered owner of the unredeemed balance
hereof in the event of its redemption in part.
The Bonds are payable from the proceeds of an ad valorem tax
levied, within the limitations prescribed by law, upon all taxable
property in the City and, together with the outstanding and unpaid
Previously Issued Obligations (identified and defined in the
Ordinance) , are additionally payable from and secured by a lien on
and pledge of the Net Revenues (as defined in the Ordinance) of the
City's combined Waterworks and Sewer System (the "System") , such
lien and pledge, however, being junior and subordinate to the lien
on and pledge of the Net Revenues of the System securing the
payment of "Prior Lien Bonds" (as defined in the Ordinance) now
outstanding and hereafter issued by the City. In the Ordinance,
the City reserves and retains the right to issue Prior Lien Bonds
without limitation as to principal amount but subject to any
applicable terms, conditions or restrictions under law or otherwise
as well as the right to issue additional obligations payable from
the same sources as the Bonds and, together with the Bonds and the
Previously Issued Obligations, equally and ratably secured by a
parity lien on and pledge of the Net Revenues of the System.
Reference is hereby made to the Ordinance, a copy of which is
on file in the Designated Payment/Transfer Office of the Paying
Agent/Registrar, and to all the provisions of which the owner or
holder of this Bond by the acceptance hereof hereby assents, for
definitions of terms; the description of and the nature and extent
of the tax levied for the payment of the Bonds; the properties
constituting the System; the Net Revenues pledged to the payment of
the principal of and interest on the Bonds; the nature and extent
and manner of enforcement of the pledge; the terms and conditions
relating to the transfer or exchange of this Bond; the conditions
upon which the Ordinance may be amended or supplemented with or
without the consent of the Holders; the rights, duties, and
obligations of the City and the Paying Agent/Registrar; the terms
and provisions upon which the tax levy and the liens, pledges,
charges and covenants made therein may be discharged at or prior to
the maturity of this Bond, and this Bond deemed to be no longer
Outstanding thereunder; and for the other terms and provisions
contained therein. Capitalized terms used herein have the meanings
assigned in the Ordinance.
This Bond, subject to certain limitations contained in the
Ordinance, may be transferred on the Security Register only upon
its presentation and surrender at the Designated Payment/Transfer
Office of the Paying Agent/Registrar, with the Assignment hereon
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Paying Agent/Registrar duly
executed by, the registered owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or more
0108934
-12-
new fully registered Bonds of the same Stated Maturity, of
authorized denominations, bearing the same rate of interest, and of
the same aggregate principal amount will be issued by the Paying
Agent/Registrar to the designated transferee or transferees.
The City and the Paying Agent/Registrar, and any agent of
either, shall treat the registered owner whose name appears on the
Security Register (i) on the Record Date as the owner entitled to
payment of interest hereon, (ii) on the date of surrender of this
Bond as the owner entitled to payment of principal hereof at its
Stated Maturity or its redemption, in whole or in part, and (iii)
on any other date as the owner for all other purposes, and neither
the City nor the Paying Agent/Registrar, or any agent of either,
shall be affected by notice to the contrary. In the event of
nonpayment of interest on a scheduled payment date and for thirty
(30) days thereafter, a new record date for such interest payment
(a "Special Record Date") will be established by the Paying
Agent/Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record
Date and of the scheduled payment date of the past due interest
(which shall be 15 days after the Special Record Date) shall be
sent at least five (5) business days prior to the Special Record
Date by United States Mail, first class postage prepaid, to the
address of each Holder appearing on the Security Register at the
close of business on the last business day next preceding the date
of mailing of such notice.
It is hereby certified, recited, represented and declared that
the City is a body corporate and political subdivision duly
organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the issuance of
the Bonds is duly authorized by law; that all acts, conditions and
things required to exist and be done precedent to and in the
issuance of the Bonds to render the same lawful and valid
obligations of the City have been properly done, have happened and
have been performed in regular and due time, form and manner as
required by the Constitution and laws of the State of Texas, and
the Ordinance; that the Bonds do not exceed any Constitutional or
statutory limitation; and that due provision has been made for the
payment of the principal of and interest on the Bonds by the levy
of a tax and a pledge of and lien on the Net Revenues of the System
as aforestated. In case any provision in this Bond shall be
invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The terms and provisions of this
Bond and the Ordinance shall be construed in accordance with and
shall be governed by the laws of the State of Texas.
0108934
-13-
IN WITNESS WHEREOF, the City Council of the City has caused
this Bond to be duly executed under the official seal of the City
as of the Bond Date.
CITY OF WYLIE, TEXAS
COUNTERSIGNED: Mayor
City Secretary
(SEAL)
C. *Form of Reaistration Certificate of Comptroller
of Public Accounts to appear on Initial Bond(s1 only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
( REGISTER NO.
THE STATE OF TEXAS
I HEREBY CERTIFY that this Bond has been examined, certified
as to validity and approved by the Attorney General of the State of
Texas, and duly registered by the Comptroller of Public Accounts of
the State of Texas.
WITNESS my signature and seal of office this
Comptroller of Public Accounts
of the State of Texas
(SEAL)
0100934
-14-
D. Form of Certificate of Patina AaentlReaietrar to appear
on Definitive Bonds only.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Bond has been duly issued and registered under the
provisions of the within-mentioned Ordinance; the bond or bonds of
the above entitled and designated series originally delivered
having been approved by the Attorney General of the State of Texas
and registered by the Comptroller of Public Accounts, as shown by
the records of the Paying Agent/Registrar.
The principal offices of the Paying Agent/Registrar in Dallas,
Texas, is the "Designated Payment/Transfer Office" for this Bond.
Registration Date: AMERITRUST TEXAS NATIONAL
ASSOCIATION,
as Paying Agent/Registrar
By
Authorized Signature
*NOTE TO PRINTER: Do Not Print on Definitive Bonds
E. Form of Assignment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and
transfers unto (Print or typewrite name, address, and zip code of
transferee: )
(Social Security or other identifying number: )
the within Bond and all rights thereunder, and hereby irrevocably
constitutes and appoints
attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the
premises.
DATED:
NOTICE: The signature on this
Signature guaranteed: assignment must correspond with
the name of the registered owner
as it appears on the face of the
within Bond in every particular.
0108834
-15-
F. The Initial Bond(sl shall be in the form set forth in
paragraph B of this Section. except that the form of the
single fully registered Initial Bond shall be modified as
follows:
(i) immediately under the name of the bond the headings
"Interest Rate " and "Stated Maturity
shall both be omitted;
(ii) Paragraph one shall read as follows:
Registered Owner:
Principal Amount: Dollars
The City of Wylie (hereinafter referred to as the "City") , a
body corporate and municipal corporation in the County of Collin,
State of Texas, for value received, acknowledges itself indebted to
and hereby promises to pay to the order of the Registered Owner
named above, or the registered assigns thereof, the Principal
Amount hereinabove stated on February 15 in each of the years and
in principal installments in accordance with the following
schedule:
YEAR OF PRINCIPAL INTEREST
MATURITY INSTALLMENTS RATE
(Information to be inserted from
schedule in Section 2 hereof) .
(or so much principal thereof as shall not have been prepaid prior
to maturity) and to pay interest on the unpaid Principal Amount
hereof from the Bond Date at the per annum rates of interest
specified above computed on the basis of a 360-day year of twelve
30-day months; such interest being payable on February 15 and
August 15 in each year, commencing February 15, 1994. Principal
installments of this Bond are payable in the year of maturity or on
a prepayment date to the registered owner hereof by Ameritrust
Texas National Association (the "Paying Agent/Registrar") , upon
presentation and surrender, at its principal offices in Dallas,
Texas (the "Designated Payment/Transfer Office") . Interest is
payable to the registered owner of this Bond whose name appears on
the "Security Register" maintained by the Paying Agent/Registrar at
the close of business on the "Record Date", which is the 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.
0108994
-16-
All payments of principal of, premium, if any, and interest on this
Bond shall be without exchange or collection charges to the owner
hereof and in any coin or currency of the United States of- America
which at the time of payment is legal tender for the payment of
public and private debts.
SECTION 10: Definitions. For purposes of this Ordinance
and for clarity with respect to the issuance of the Bonds herein
authorized, and the levy of taxes and appropriation of Net Revenues
therefor, the following words or terms, whenever the same appears
herein without qualifying language, are defined to mean as follows:
(a) The term "Bond Fund" shall mean the special -
Fund created and established under the provisions of
Section 11 of this Ordinance.
(b) The term "Bonds" shall mean the "City of Wylie,
Texas, Tax and Waterworks and Sewer System Surplus
Revenue Refunding Bonds, Series 1993", dated August 1,
1993 authorized by this Ordinance.
(c) The term "Collection Date" shall mean, when
reference is being made to the levy and collection of
annual ad valorem taxes, the date the annual ad valorem
taxes levied each year by the City become delinquent.
(d) The term "Fiscal Year" shall mean the twelve
months' period ending September 30th of each year.
(e) The term "Net Revenues" shall mean the gross
revenues of the System, less the expense of operation and
maintenance, including all salaries, labor, materials,
interest, repairs and extensions necessary to render
efficient service; provided, however, that only such
repairs and extensions, as in the judgment of the City
Council, reasonably and fairly exercised, are necessary
to keep the System in operation and render adequate
service to the City and the inhabitants thereof, or such
as might be necessary to meet some physical accident or
condition which would otherwise impair any obligations
payable from and secured by a lien on the Net Revenues
shall be deducted in determining "Net Revenues".
(f) The term "Government Obligations" shall mean
direct obligations of the United States of America,
including obligations the principal of and interest on
which are unconditionally guaranteed by the United States
of America, and United States Treasury obligations such
as its State and Local Government Series in book-entry
form.
0108934
-17-
(g) The term "Outstanding" when used in this
Ordinance with respect to Bonds means, as of the date of
determination, all Bonds theretofore issued and delivered
under this Ordinance, except:
(1) those Bonds cancelled by the Paying
Agent/Registrar or delivered to the Paying
Agent/Registrar for cancellation;
(2) those Bonds for which payment has
been duly provided by the City in accordance
with the provisions of Section 25 hereof; and
(3) those Bonds that have been
mutilated, destroyed, lost, or stolen and
replacement Bonds have been registered and
delivered in lieu thereof as provided in
Section 24 hereof.
(h) The term "Prior Lien Bonds" shall mean all
bonds or other similar obligations now outstanding and
hereafter issued that are payable from and secured by a
lien on and pledge of the Net Revenues of the System,
which is prior in right and claim to the lien on and
pledge of the Net Revenues securing the payment of the
Bonds, including, but not limited to the outstanding and
unpaid Refunded Obligations until defeased with the
proceeds of the Bonds.
(i) The term "Previously Issued Obligations" shall w 0^ 17
mean outstanding and unpaid "City of Wylie, Texas, Tax
and Waterworks and Sewer System Subordinate Lien Revenue 'N1)
Certificates of Obligation, Series 1989", dated June 15, i�
1989, and originally issued in the aggregate principal
amount of $200,000.
(j) The term "Similarly Secured Obligations" shall
mean additional tax and revenue obligations hereafter
issued under and pursuant to the provisions of V.T.C.A. ,
Local Government Code, Subchapter C of Chapter 271, or
other law that are payable from ad valorem taxes and
additionally payable from and secured by a lien on and
pledge of the Net Revenues of the System on a parity with
and of equal rank and dignity with the lien and pledge
securing the payment of the Previously Issued Obligations
and the Bonds.
(k) The term "System" shall mean the City's
combined Waterworks and Sanitary Sewer System, including
oio
-18-
all properties, real, personal, mixed or otherwise, now
owned or hereafter acquired by the City of Wylie through
purchase, construction or otherwise, and used in
connection with the System and in anywise appertaining
thereto, whether situated within or without the limits of
the City.
SECTION 11: Bond Fund. For the purpose of paying the
interest on and to provide a sinking fund for the payment,
redemption and retirement of the Bonds, there shall be and is
hereby created a special account or fund on the books and records '
of the City known as "SPECIAL 1993 TAX AND REVENUE REFUNDING BOND
FUND", which Fund shall be kept and maintained at the City's
depository bank, and moneys deposited in said Fund shall be used
for no other purpose. Authorized officials of the City are hereby
authorized and directed to make withdrawals from said Fund
sufficient to pay the principal of and interest on the Bonds as the
same become due and payable, and, shall cause to be transferred to
the Paying Agent/Registrar from moneys on deposit in the Bond Fund
an amount sufficient to pay the amount of principal and/or interest
falling due on the Bonds, such transfer of funds to the Paying
Agent/Registrar to be made in such manner as will cause immediately
available funds to be deposited with the Paying Agent/Registrar on
or before the last business day next preceding each interest and
principal payment date for the Bonds.
Pending the transfer of funds to the Paying Agent/Registrar,
money in the Bond Fund may, at the option of the City, be invested
in obligations identified in, and in accordance with the provisions
of the "Public Funds Investment Act of 1987" relating to the
investment of "bond proceeds"; provided that all such investments
shall be made in such a manner that the money required to be
expended from said Fund will be available at the proper time or
times. All interest and income derived from deposits and
investments in said Bond Fund shall be credited to, and any losses
debited to, the said Bond Fund. All such investments shall be sold
promptly when necessary to prevent any default in connection with
the Bonds.
SECTION 12: Tax Levy. To provide for the payment of the
"Debt Service Requirements" on the Bonds being (i) the interest on
�J'l said Bonds and (ii) a sinking fund for their redemption at maturity
,4ior a sinking fund of 2% (whichever amount shall be the greater) ,
there shall be and there is hereby levied for theECTEFilt7yeArN,And
each succeeding year thereafter while said Bonds or any interest
thereon shall remain Outstanding, a sufficient tax on each one
hundred dollars' valuation of taxable property in said City,
adequate to pay such Debt Service Requirements, full allowance
being made for delinquencies and costs of collection; said tax
shall be assessed and collected each year and applied to the
0106934
-19-
payment of the Debt Service Requirements, and the same shall not be
diverted to any other purpose. The taxes so levied and collected
shall be paid into the Bond Fund. The City Council hereby declares
its purpose and intent to provide and levy a tax legally and fully
sufficient to pay the said Debt Service Requirements, it having
been determined that the existing and available taxing authority of
the City for such purpose is adequate to permit a legally
sufficient tax in consideration of all other outstanding
indebtedness.
The amount of taxes to be provided annually for the payment of
the principal of and interest on the Bonds shall be determined and
accomplished in the following manner:
(a) Prior to the date the City Council establishes the annual
tax rate and passes an ordinance levying ad valorem taxes each
year, the Council shall determine:
(1) The amount on deposit in the Bond Fund after
(a) deducting therefrom the total amount of Debt Service
Requirements to become due on Bonds prior to the
Collection Date for the ad valorem taxes to be levied and
(b) adding thereto the amount of the Net Revenues of the
System appropriated and allocated to pay such Debt
Service Requirements prior to the Collection Date for the
ad valorem taxes to be levied.
(2) The amount of Net Revenues of the System,
appropriated and to be set aside for the payment of the
Debt Service Requirements on the Bonds between the
Collection Date for the taxes then to be levied and the
Collection Date for the taxes to be levied during the
next succeeding calendar year.
(3) The amount of Debt Service Requirements to
become due and payable on the Bonds between the
Collection Date for the taxes then to be levied and the
Collection Date for the taxes to be levied during the
next succeeding calendar year.
(b) The amount of taxes to be levied annually each year to
pay the Debt Service Requirements on the Bonds shall be the amount
established in paragraph (3) above less the sum total of the
amounts established in paragraphs (1) and (2) , after taking into
consideration delinquencies and costs of collecting such annual
taxes.
SECTION 13: Pledge of Revenues. The City hereby covenants
and agrees that, subject to the prior lien on and pledge of the Net
Revenues of the System to the payment and security of Prior Lien
0106934
-20-
Bonds, all the Net Revenues of the System, with the exception of
those in excess of the amounts required to be deposited to the Bond
Fund as hereafter provided, are hereby irrevocably pledged, equally
and ratably, to the payment of the principal of and interest on the
Previously Issued Obligations, the Bonds and Similarly Secured
Obligations, and the pledge of Net Revenues of the System herein
made for the payment of the Bonds shall constitute a lien on the
Net Revenues of the System in accordance with the terms and
provisions hereof and be valid and binding without further action
by the City and without any filing or recording except for the
filing of this Ordinance in the records of the City.
SECTION 14: System Fund. The City hereby covenants and
agrees that all revenues derived from the operation of the System
shall be accounted for separate and apart from all other funds,
accounts and moneys of the City, and all such revenues shall be
deposited as collected into the "System Fund" maintained at the
City's depository bank and created and established in connection
with the issuance of the outstanding Prior Lien Bonds and hereby
reaffirmed to be maintained during the period of time the Bonds are
Outstanding. All moneys deposited to the credit of the System Fund
shall be pledged and appropriated to the extent required for the
following purposes and in the order of priority shown, to wit:
First: To the payment of the reasonable and
proper expenses of operating and maintaining the
System as defined in Section 10 hereof or required
by statute to be a first charge on and claim
against the revenues of the System.
Second: To the payment of all amounts required to
be deposited in the special Funds created and
established for the payment, security and benefit
of Prior Lien Bonds in accordance with the terms
and provisions of any ordinance authorizing the
issuance of Prior Lien Bonds.
Third: Equally and ratably, to the payment of
the amounts required to be deposited in the special
funds and accounts created and established for the
payment of the Previously Issued Obligations, the
Bonds (the Bond Fund) and Similarly Secured
Obligations.
Any Net Revenues remaining in the System Fund after satisfying
the foregoing payments, or making adequate and sufficient provision
for the payment thereof, may be appropriated and used for any other
City purpose now or hereafter permitted by law.
0106104
-21-
SECTION 15: Deposits to Bond Fund. The City hereby
covenants and agrees to cause to be deposited to the credit of the
Bond Fund prior to each principal and interest payment date for the
Bonds from the pledged Net Revenues of the System in the System
Fund, after the deduction of all payments required to be made to
the special Funds or accounts created for the payment and security
of the Prior Lien Bonds, an amount equal to one hundred per
centum (100%) of the amount required to fully pay the interest and
principal then due and payable on the Bonds, such deposits to pay
maturing principal and accrued interest on the Bonds to be made in
substantially equal monthly installments on or before the 20th day
of each month beginning the 20th day of the month first to follow
the date of delivery of the Bonds to the initial purchaser(s) .
The deposits to be made to the credit of the Bond Fund, as
hereinabove provided, shall be made until such time as such Fund
contains an amount equal to pay the principal of and interest and
premium, if any, on the Bonds to maturity or redemption, as the
case may be. Accrued interest and premium, if any, received from
the purchaser of the Bonds deposited to the Bond Fund and
ad valorem taxes levied, collected and deposited in the Bond Fund
for and on behalf of the Bonds may be taken into consideration and
reduce the amount of the deposits otherwise required to be
deposited in the Bond Fund from the Net Revenues of the System. In
addition, any surplus proceeds from the sale of the Bonds not
expended for authorized purposes shall be deposited in the Bond
Fund, and such amounts so deposited shall reduce the sums otherwise
required to be deposited in said Fund from ad valorem taxes and the
Net Revenues of the System.
SECTION 16: Security of Funds. All moneys on deposit in
the Funds for which this Ordinance makes provision (except any
portion thereof as may be at any time properly invested) shall be
secured in the manner and to the fullest extent required by the
laws of Texas for the security of public funds, and moneys on
deposit in such Funds shall be used only for the purposes permitted
by this Ordinance.
SECTION 17: Maintenance of System - Insurance. The City
covenants and agrees that while the Bonds remain Outstanding, it
will maintain and operate the System with all possible efficiency
and maintain casualty and other insurance on the properties of the
System and its operations of a kind and in such amounts customarily
carried by municipal corporations in the State of Texas engaged in
a similar type business; that it will faithfully and punctually
perform all duties with reference to the System required by the
Constitution and laws of the State of Texas.
SECTION 18: Rates and Charges. The City hereby covenants
and agrees with the Holders of the Bonds that rates and charges for
0106934
-22-
services afforded by the System will be established and maintained
that are reasonably expected, on the basis of available information
and experience and with due allowance for contingencies, to provide
revenues in each Fiscal Year sufficient to pay:
(a) All operating, maintenance, depreciation,
replacement, betterment and other costs incurred in the
maintenance and operation of the System;
(b) the interest on and principal of the Prior Lien
Bonds as the same becomes due and payable and the amounts
required to be deposited in any special Fund created and
established for the payment and security thereof and (ii)
the amounts, if any, required to be deposited in the
special funds created and established for the payment of
the Previously Issued Obligations, the Bonds (the Bond
Fund) and Similarly Secured Obligations.
(c) any other legally incurred indebtedness payable
from the revenues of the System and/or secured by a lien
on the System or the revenues thereof.
SECTION 19: Records and Accounts - Annual Audit. The City
further covenants and agrees that so long as any of the Bonds
remain Outstanding, it will keep and maintain separate and complete
records and accounts pertaining to the operations of the System in
which complete and correct entries shall . be made of all
transactions relating thereto, as provided by Article 1113,
V.A.T.C.S. , or other applicable law. The Holders of the Bonds or
any duly authorized agent or agents of such Holders shall have the
right to inspect the System and all properties comprising the same.
The City further agrees that following the close of each Fiscal
Year, it will cause an audit of such books and accounts to be made
by an independent firm of Certified Public Accountants. Copies of
each annual audit shall be furnished to the Executive Director of
the Municipal Advisory Council of Texas at his office in Austin,
Texas, and, upon written request, to the original purchaser of the
Bonds and any subsequent Holder thereof.
SECTION 20: remedies in Event of Default. In
. addition to all the rights and remedies provided by the laws of the
State of Texas, the City covenants and agrees particularly that in
the event the City (a) defaults in the payments to be made to the
Bond Fund, or (b) defaults in the observance or performance of any
other of the covenants, conditions or obligations set forth in this
Ordinance, the owner or owners of any of the Bonds shall be
entitled to a writ of mandamus issued by a court of proper
jurisdiction compelling and requiring the governing body of the
City and other officers of the City to observe and perform any
covenant, condition or obligation prescribed in this Ordinance.
0106994
-23-
No delay or omission to exercise any right or power accruing
upon any default shall impair any such right or power, or shall be
construed to be a waiver of any such default or acquiescence
therein, and every such right and power may be exercised from time
to time and as often as may be deemed expedient. The specific
remedies herein provided shall be cumulative of all other existing
remedies and the specification of such remedies shall not be deemed
to be exclusive.
SECTION 21: Special Covenants. The City hereby further
covenants as follows:
(a) It has the lawful power to pledge the Net
Revenues of the System supporting this issue of Bonds and
has lawfully exercised said powers under the Constitution
and laws of the State of Texas.
(b) Other than for the payment of the Bonds, the
Refunded Obligations (until defeased with the proceeds of
sale of the Bonds) , the outstanding Previously Issued
Obligations and the "City of Wylie, Texas, Tax and
Waterworks and Sewer System Limited Pledge Revenue
Certificates of Obligation, Series 1988", dated May 15,
1988 and "City of Wylie, Texas, Tax and Waterworks and
Sewer System Limited Pledge Revenue Certificates of
Obligation, Series 1990", dated February 15, 1990, the
Net Revenues of the System have not in any manner been
pledged to the payment of any debt or obligation of the '
City or of the System.
SECTION 22: Issuance of Prior Lien Bonds and Similarly
Secured Obligations. The City hereby expressly reserves the right
to hereafter issue Prior Lien Bonds, without limitation as to
principal amount but subject to any terms, conditions or
restrictions applicable thereto under law or otherwise, and, also
reserves the right to issue Similarly Secured Obligations which,
together with the Previously Issued Obligations and the Bonds,
shall be equally and ratably secured by a parity lien on and pledge
of the Net Revenues of the System.
SECTION 23: Application of Prior Lien Bonds Covenants and
Acrreements. It is the intention of this governing body and
accordingly hereby recognized and stipulated that the provisions,
agreements and covenants contained herein bearing upon the
management and operations of the System, and the administering and
application of revenues derived from the operation thereof, shall
to the extent possible be harmonized with like provisions,
agreements and covenants contained in the ordinances authorizing
the issuance of the Prior Lien Bonds, and to the extent of any
irreconcilable conflict between the provisions contained herein and
01094
-24-
in the ordinances authorizing the issuance of the Prior Lien Bonds,
the provisions, agreements and covenants contained therein shall
prevail to the extent of such conflict and be applicable to this
Ordinance but in all respects subject to the priority of rights and
benefits, if any, conferred thereby to the holders of the Prior
Lien Bonds. Notwithstanding the above, any change or modification
affecting the application of revenues derived from the operation of
the System shall not impair the obligation of contract with respect
to the pledge of revenues herein made for the payment and security
of the Bonds.
SECTION 24: Mutilated - Destroyed - Lost and Stolen
Bonds. In case any Bond shall be mutilated, or destroyed, lost or
stolen, the Paying Agent/Registrar may execute and deliver a
replacement Bond of like form and tenor, and in the same
denomination and bearing a number not contemporaneously
outstanding, in exchange and substitution for such mutilated Bond,
or in lieu of and in substitution for such destroyed, lost or
stolen Bond, only upon the approval of the City and after (i) the
filing by the Holder thereof with the Paying Agent/Registrar of
evidence satisfactory to the Paying Agent/Registrar of the
destruction, loss or theft of such Bond, and of the authenticity of
the ownership thereof and (ii) the furnishing to the Paying
Agent/Registrar of indemnification in an amount satisfactory to
hold the City and the Paying Agent/Registrar harmless. All
expenses and charges associated with such indemnity and with the
preparation, execution and delivery of a replacement Bond shall be
borne by the Holder of the Bond mutilated, or destroyed, lost or
stolen.
Every replacement Bond issued pursuant to this Section shall
be a valid and binding obligation, and shall be entitled to all the
benefits of this Ordinance equally and ratably with all other
Outstanding Bonds; notwithstanding the enforceability of payment by
anyone of the destroyed, lost, or stolen Bonds.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement and payment of mutilated, destroyed,
lost or stolen Bonds.
SECTION 25: Satisfaction of Obligation of City. If the
City shall pay or cause to be paid, or there shall otherwise be
paid to the Holders, the principal of, premium, if any, and
interest on the Bonds, at the times and in the manner stipulated in
this Ordinance, then the pledge of taxes levied under this
Ordinance and the lien on and pledge of the Net Revenues created by
this Ordinance and all covenants, agreements, and other obligations
of the City to the Holders shall thereupon cease, terminate, and be
discharged and satisfied.
0106934
-25-
Bonds or any principal amount(s) thereof shall be deemed to
have been paid within the meaning and with the effect expressed
above in this Section when (i) money sufficient to pay in full such
Bonds or the principal amount(s) thereof at maturity or to the
redemption date therefor, together with all interest due thereon,
shall have been irrevocably deposited with and held in trust by the
Paying Agent/Registrar, or an authorized escrow agent, or
(ii) Government Obligations shall have been irrevocably deposited
in trust with the Paying Agent/Registrar, or an authorized escrow
agent, which Government Obligations have been certified by an
independent accounting firm to mature as to principal and interest
in such amounts and at such times as will insure the availability,
without reinvestment, of sufficient money, together with any moneys
deposited therewith, if any, to pay when due the principal of and
interest on such Bonds, or the principal amount(s) thereof, on and
prior to the Stated Maturity thereof or (if notice of redemption
has been duly given or waived or if irrevocable arrangements
therefor acceptable to the Paying Agent/Registrar have been made)
the redemption date thereof. The City covenants that no deposit of
moneys or Government Obligations will be made under this Section
and no use made of any such deposit which would cause the Bonds to
be treated as "arbitrage bonds" within the meaning of Section 148
of the Internal Revenue Code of 1986, as amended, or regulations
adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/Registrar, or an
authorized escrow agent, and all income from Government Obligations
held in trust by the Paying Agent/Registrar, or an authorized
escrow agent, pursuant to this Section which is not required for
the payment of the Bonds, or any principal amount(s) thereof, or
interest thereon with respect to which such moneys have been so
deposited shall be remitted to the City or deposited as directed by
the City. Furthermore, any money held by the Paying
Agent/Registrar for the payment of the principal of and interest on
the Bonds and remaining unclaimed for a period of four (4) years
after the Stated Maturity, or applicable redemption date, of the
Bonds such moneys were deposited and are held in trust to pay shall
upon the request of the City be remitted to the City against a
written receipt therefor. Notwithstanding the above and foregoing,
any remittance of funds from the Paying Agent/Registrar to the City
shall be subject to any applicable unclaimed property laws of the
State of Texas.
SECTION 26: Ordinance a Contract - Amendments. This
Ordinance shall constitute a contract with the Holders from time to
time, be binding on the City, and shall not be amended c"�?repeaiea"
sy the City so long as any Bond remains Outstanding except as
permitted in this Section. The City may, without the consent of or
notice to any Holders, from time to time and at any time, amend
this Ordinance in any manner not detrimental to the interests of
01118934
-26-
the Holders, including the curing of any ambiguity, inconsistency,
or formal defect or omission herein. In addition, the City may,
with the consent of Holders holding a majority in aggregate
principal amount of the Bonds then Outstanding affected thereby,
amend, add to, or rescind any of the provisions of this Ordinance;
provided that, without the consent of all Holders of Outstanding
Bonds, no such amendment, addition, or rescission shall (1) extend
the time or times of payment of the principal of, 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 required to be held by Holders for
consent to any such amendment, addition, or rescission.
SECTION 27: Covenants to Maintain Tax-Exempt Status.
(a) pefinitions. When used in this Section, the following
terms shall have the following meanings:
"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.
"Non purpose 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.
01066194
-27-
"Regulations" means any proposed, temporary, or
final Income Tax Regulations issued pursuant to Sections
103 and 141 through 150 of the Code, and 103 of the
Internal Revenue Code of 1954, which are applicable to
the Bonds. Any reference to any specific Regulation
shall also mean, as appropriate, any proposed, temporary
or final Income Tax Regulation designed to supplement,
amend or replace the specific Regulation referenced.
"Yield" of
(1) any Investment has the meaning set
forth in Section 1.148-5 of the Regulations;
and
(2) the Bonds has the meaning set forth
in Section 1.148-4 of the Regulations.
(b) Not to Cause Interest to Become Taxable. The City shall
not use, permit the use of, or omit to use Gross Proceeds or any
other amounts (or any property the acquisition, construction or
improvement of which is to be financed directly or indirectly with
Gross Proceeds) in a manner which if made or omitted, respectively,
would cause the interest on any Bond to become includable in the
gross income, as defined in section 61 of the Code, of the owner
thereof for federal income tax purposes. Without limiting the
generality of the foregoing, unless and until the City receives a
written opinion of counsel nationally recognized in the field of
municipal bond law to the effect that failure to comply with such
covenant will not adversely affect the exemption from federal
income tax of the interest on any Bond, the City shall comply with
each of the specific covenants in this Section.
(c) No Private Use or Private Payments. Except as permitted
by section 141 of the Code and the Regulations and rulings
thereunder, the City shall at all times prior to the last Stated
Maturity of Bonds:
(1) exclusively own, operate and possess all
property the acquisition, construction or improvement of
which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Bonds (including
property financed with Gross Proceeds of the Refunded
Obligations) , and not use or permit the use of such Gross
Proceeds (including all contractual arrangements with
terms different than those applicable to the general
public) or any property acquired, constructed or improved
with such Gross Proceeds in any activity carried on by
any person or entity (including the United States or any
agency, department and instrumentality thereof) other
0108934
-28-
than a state or local government, unless such use is
solely as a member of the general public; and
(2) not directly or indirectly impose or accept any
charge or other payment by any person or entity who is
treated as using Gross Proceeds of the Bonds or any
property the acquisition, construction or improvement of
which is to be financed or refinanced directly or
indirectly with such Gross Proceeds (including property
financed with Gross Proceeds of the Refunded
Obligations) , other than taxes of general application
within the City or interest earned on investments
acquired with such Gross Proceeds pending application for
their intended purposes.
(d) No Private Loan. Except to the extent permitted by
section 141 of the Code and the Regulations and rulings thereunder,
the City shall not use Gross Proceeds of the Bonds to make or
finance loans to any person or entity other than a state or local
government. For purposes of the foregoing covenant, such Gross
Proceeds are considered to be "loaned" to a person or entity if:
(1) property acquired, constructed or improved with such Gross
Proceeds is sold or leased to such person or entity in a
transaction which creates a debt for federal income tax purposes;
(2) capacity in or service from such property is committed to such
person or entity under a take-or-pay, output or similar contract or
arrangement; or (3) indirect benefits, or burdens and benefits of
ownership, of such Gross Proceeds or any property acquired,
constructed or improved with such Gross Proceeds are otherwise
transferred in a transaction which is the economic equivalent of a
loan.
(e) Not to Invest at Higher Yield. Except to the extent
permitted by section 148 of the Code and the Regulations and
rulings thereunder, the City shall not at any time prior to the
final Stated Maturity of the 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) Jot Federally Guaranteed. Except to the extent permitted
by section 149(b) of the Code and the Regulations and rulings
thereunder, the City shall not take or omit- to take any action
which would cause the Bonds to be federally guaranteed within the
meaning of section 149 (b) of the Code and the Regulations and
rulings thereunder.
OiO$934
-29-
(g) Information Report. The City shall timely file the
information required by section 149 (e) of the Code with the
Secretary of the Treasury on Form 8038-G or such other form and in
such place as the Secretary may prescribe.
(h) Rebate of Arbitrage Profits. Except to the extent
otherwise provided in section 148 (f) of the Code and the
Regulations and rulings thereunder:
(1) The City shall account for all Gross Proceeds
(including all receipts, expenditures and investments
thereof) on its books of account separately and apart
from all other funds (and receipts, expenditures and
investments thereof) and shall retain all records of
accounting for at least six years after the day on which
the last Outstanding Bond is discharged. However, to the
extent permitted by law, the City may commingle Gross
Proceeds of the Bonds with other money of the City,
provided that the City separately accounts for each
receipt and expenditure of Gross Proceeds and the
obligations acquired therewith.
(2) Not less frequently than each Computation Date,
the City shall calculate the Rebate Amount in accordance
with rules set forth in section 148 (f) of the Code and •
the Regulations and rulings thereunder. The City shall
maintain such calculations with its official transcript
of proceedings relating to the issuance of the Bonds
until six years after the final Computation Date.
(3) As additional consideration for the purchase of
the Bonds by the Purchasers and the loan of the money
represented thereby and in order to induce such purchase
by measures designed to insure the excludability of the
interest thereon from the gross income of the owners
thereof for federal income tax purposes, the City shall
pay to the United States out of the Bond Fund or its
general fund, as permitted by applicable Texas statute,
regulation or opinion of the Attorney General of the
State of Texas, the amount that when added to the future
value of previous rebate payments made for the Bonds
equals (i) in the case of a Final Computation Date as
defined in Section 1.148-3 (e) (2) of the Regulations, one
hundred percent (100%) of the Rebate Amount on such date;
and (ii) in the case of any other Computation Date,
ninety percent (90%) of the Rebate Amount on such date.
In all cases, the rebate payments shall be made at the
times, in the installments, to the place and in the
manner as is or may be required by section 148(f) of the
Code and the Regulations and rulings thereunder, and
0108034
-30-
shall be accompanied by Form 8038-T or such other forms
and information as is or may be required by Section
148 (f) of the Code and the Regulations and rulings
thereunder.
(4) The City shall exercise reasonable diligence to
assure that no errors are made in the calculations and
payments required by paragraphs (2) and (3) , and if an
error is made, to discover and promptly correct such
error within a reasonable amount of time thereafter (and
in all events within one hundred eighty (180) days after
discovery of the error) , including payment to the United
States of any additional Rebate Amount owed to it,
interest thereon, and any penalty imposed under Section
1.148-3 (h) of the Regulations.
(i) Not to Divert Arbitrage Profits. Except to the extent
permitted by section 148 of the Code and the Regulations and
rulings thereunder, the City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the Bonds, enter
into any transaction that reduces the amount required to be paid to
the United States pursuant to Subsection H of this Section because
such transaction results in a smaller profit or a larger loss than
would have resulted if the transaction had been at arm's length and
had the Yield of the Bonds not been relevant to either party.
(j) Elections. The City hereby directs and authorizes the
City Manager and Director of Finance and Human Resources, either or
any combination of them, to make elections permitted or required
pursuant to the provisions of the Code or the Regulations, as they
deem necessary or appropriate in connection with the Bonds, in the
Certificate as to Tax Exemption or similar or other appropriate
certificate, form or document.
(k) Bonds Not Hedge Bonds.
(1) At the time the original bonds refunded by the
Bonds were issued, the City reasonably expected to spend
at least 85% of the spendable proceeds of such bonds
within three years after such bonds were issued.
(2) Not more than 50% of the proceeds of the
original bonds refunded by the Bonds were invested in
Nonpurpose Investments having a substantially guaranteed
Yield for a period of 4 years or more.
(1) Qualified Advance Refunding. The Bonds are issued
exclusively to refund the Refunded Obligations, and the Bonds will
be issued more than 90 days before the redemption of the Refunded
Obligations. The City represents as follows:
0108934
-31-
(1) The Bonds are the first advance refunding of
the Refunded Obligations within the meaning of section
149 (d) (3) of the Code.
(2) The Refunded Obligations are being called for
redemption, and will be redeemed: (i) in the case of
Refunded Obligations issued after 1985, not later than
the earliest date on which such bonds may be redeemed and
on which the City will realize present value debt service
savings (determined without regard to administrative
expenses) on the issue; and (ii) in the case of Refunded
Obligations issued before 1986, not later than the
earliest date on which such issue may be redeemed at par
or at a premium of 3 percent or less and on which the
City will realize present value debt service savings
(determined without regard to administrative expenses) on
the issue.
(3) The initial temporary period under section
148 (c) of the Code will end: (i) with respect to the
proceeds of the Bonds not later than 30 days after the
date of issue of such Bonds; and (ii) with respect to
proceeds of the Refunded Obligations on the Closing Date
if not ended prior thereto.
(4) On and after the date of issue of the Bonds, no
proceeds of the Refunded Obligations will be invested in
Nonpurpose Investments having a Yield in excess of the
Yield on such Refunded Obligations.
(5) The Bonds are being issued for the purposes
stated in the preamble of this Ordinance. There is a
present value savings associated with the refunding. In
the issuance of the Bonds the City has neither:
(i) overburdened the tax-exempt bond market by issuing
more bonds, issuing bonds earlier or allowing bonds to
remain outstanding longer than reasonably necessary to
accomplish the governmental purposes for which the Bonds
were issued; (ii) employed on "abusive arbitrage device"
within the meaning of Section 1.148-10(a) of the
Regulations; nor (iii) employed a "device" to obtain a
material financial advantage based on arbitrage, within
the meaning of section 149 (d) (4) of the Code, apart from
savings attributable to lower interest rates and reduced
debt service payments in early years.
SECTION 28: Oualified Tax Exempt Obligations. In accordance
with the provisions of paragraph (3) of subsection (b) of Section
265 of the Code, the City hereby designates the Bonds to be
"qualified tax exempt obligations" in that the Bonds are not
0108034
-32-
"private activity bonds" as defined in the Code and the reasonably
anticipated amount of "qualified tax exempt obligations" to be
issued by the City (including all subordinate entities of the City)
for the calendar year in which the Bonds are issued will not exceed
$10,000,000.
SECTION 29: Sale of Bonds - Official Statement Approval. The
Bonds authorized by this Ordinance are hereby sold by the City to
Rauscher Pierce Refsnes, Inc. and NationsBanc Capital Markets, Inc.
(herein referred to as the "Purchasers") in accordance with the
Purchase Contract, dated`. Augusz iz) 1993, attached hereto as
Exhibit B and incorporated herein by reference as a part of this
4:1() Ordinance for all purposes. The Mayor is hereby authorized and
directed to execute said Purchase Contract for and on behalf of the
City and as the act and deed of this Council, and in regard to the
approval and execution of the Purchase Contract, the Council hereby
finds, determines and declares that the representations, warranties
and agreements of the City (contained in paragraph 5 thereof) are
true and correct in all material respects and shall be honored and
performed by the City.
Furthermore, the use of the Official Statement by the
Purchasers in connection with the public offering and sale of the
Bonds is hereby ratified, confirmed and approved in all respects.
The final Official Statement, whic of lects the terms of sales
attached as Exhibit A to the Pur se Contract (together with such
changes approved by the Mayor, City Secretary, City Manager or
Director of Finance and Human Resources, any one or more of said
officials) , shall be and is hereby in all respects approved and the
Purchasers are hereby authorized to use and distribute said final
Official Statement, dated August 12, 1993, in the reoffering, sale
and delivery of the Bonds to the public. The Mayor and City
Secretary are further authorized and directed to manually execute
and deliver for and on behalf of the City copies of said Official
Statement in final form as may be required by the Purchasers, and
such final Official Statement in the form and content manually
executed by said officials shall be deemed to be approved by the
City Council and constitute the Official Statement authorized for
distribution and use by the Purchasers.
SECTION 30: Special Escrow Agreement Approval and
Execution. The "Special Escrow Agreement" (the "Agreement") by and
between the City and Ameritrust Texas National Association (the
"Escrow Agent") , attached hereto as Exhibit C and incorporated
herein by reference as a part of this Ordinance for all purposes,
is hereby approved as to form and content, and such Agreement in
substantially the form and substance attached hereto, together with
such changes or revisions as may be necessary to accomplish the
refunding or benefit the City, is hereby authorized to be executed
by the Mayor and City Secretary for and on behalf of the City and
0106934
-33-
as the act and deed of this City Council; and such Agreement as
executed by said officials shall be deemed approved by the City
Council and constitute the Agreement herein approved. _
Furthermore, appropriate officials of the City in cooperation
with the Escrow Agent are hereby authorized and directed to make
the necessary arrangements for the purchase of the Federal
Securities referenced in the Agreement and the delivery thereof to
the Escrow Agent on the day of delivery of the Bonds to the
Underwriters for deposit to the credit of the "SPECIAL CITY OF
WYLIE, TEXAS, TAX AND REVENUE REFUNDING BOND ESCROW FUND" (the
"Escrow Fund") ; all as contemplated and provided in Article 717k,
V.A.T.C.S. , as amended, this Ordinance and the Agreement.
SECTION 31: Control and Custody of Bonds. The Mayor of the
City shall be and is hereby authorized to take and have charge of
all necessary orders and records pending investigation by the
Attorney General of the State of Texas, including the printing and
supply of definitive Bonds, and shall take and have charge and
control of the Initial Bonds pending the approval thereof by the
Attorney General, the registration thereof by the Comptroller of
Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Mayor, City Secretary, City Manager and
D1irector of Finance and Human Resources, any one or more of said
fficials, are hereby authorized and directed to furnish and
xecute such documents and certifications relating to the City and
the issuance of the Bonds, including certifications as to facts,
estimates, circumstances and reasonable expectations pertaining to
the use, expenditure and investment of the proceeds of the Bonds,
as may be necessary for the approval of the Attorney General, the
registration by the Comptroller of Public Accounts and the delivery
of the Bonds to the Purchasers, and, together with the City's
financial advisor, bond counsel and the Paying Agent/Registrar,
make the necessary arrangements for the delivery of the Initial
Bond(s) to the Purchasers and the initial exchange thereof for
definitive Bonds.
SECTION 32: Notices to Holders-Waiver. Wherever this
Ordinance provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and sent by United States Mail, first class
postage prepaid, to the address of each Holder appearing in the
Security Register at the close of business on the business day next
preceding the mailing of such notice.
In any case where notice to Holders is given by mail, neither
the failure to mail such notice to any particular Holders, nor any
defect in any notice so mailed, shall affect the sufficiency of
such notice with respect to all other Bonds. Where this Ordinance
oloee34
-34-
provides for notice in any manner, such notice may be waived in
writing by the Holder entitled to receive such notice, either
before or after the event with respect to which such notice is
given, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the -Paying
Agent/Registrar, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such waiver.
SECTION 33: Proceeds of Sale. Immediately following the
delivery of the Bonds, the proceeds of sale thereof (less certain
costs of issuance, and the accrued interest received from the
Purchasers of the Bonds) shall be deposited with the Escrow Agent
for application and disbursement in accordance with the provisions
of the Agreement. The proceeds of sale of the Bonds not so
deposited with the Escrow Agent for the refunding of the Refunded
Obligations shall be disbursed and deposited for payment of costs
of issuance and deposited in the Bond Fund.
SECTION 34: Cancellation. All Bonds surrendered for
payment, redemption, transfer, exchange, or replacement, if
surrendered to the Paying Agent/Registrar, shall be promptly
cancelled by it and, if surrendered to the City, shall be delivered
to the Paying Agent/Registrar and, if not already cancelled, shall
be promptly cancelled by the Paying Agent/Registrar. The City may
at any time deliver to the Paying Agent/Registrar for cancellation
any Bonds previously certified or registered and delivered which
the City may have acquired in any manner whatsoever, and all Bonds
so delivered shall be promptly cancelled by the Paying
Agent/Registrar. All cancelled Bonds held by the Paying
Agent/Registrar shall be returned to the City.
SECTION 35: Legal Opinion. The obligation of the
Purchasers to accept delivery of the Bonds is subject to being
furnished a final opinion of Fulbright & Jaworski L.L.P. ,
Attorneys, Dallas, Texas, approving such Bonds as to their
validity, said opinion to be dated and delivered as of the date of
delivery and payment for such Bonds. A true and correct
reproduction of said opinion or an executed counterpart thereof is
hereby authorized to be either printed on definitive printed
obligations or deposited with DTC along with the global
certificates for the implementation and use of the Book Entry Only
System used in the settlement and transfer of the Bonds.
SECTION 36: CUSIP Numbers. CUSIP numbers may be printed or
typed on the definitive Bonds. It is expressly provided, however,
that the presence or absence of CUSIP numbers on the definitive
Bonds shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Bonds as
to legality are to be held responsible for CUSIP numbers
incorrectly printed or typed on the definitive Bonds.
0100934
-35-
SECTION 37: $enefits of Ordinance. Nothing in this
Ordinance, expressed or implied, is intended or shall be construed
to confer upon any person other than the City, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim, legal
or equitable, under or by reason of this Ordinance or any provision
hereof, this Ordinance and all its provisions being intended to be
and being for the sole and exclusive benefit of the City, the
Paying Agent/Registrar and the Holders.
SECTION 38: Inconsistent Provisions. All ordinances,
orders or resolutions, or parts thereof, which are in conflict or
inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict, and the provisions of this
Ordinance shall be and remain controlling as to the matters
contained herein.
SECTION 39: Governing Law. This Ordinance shall be
construed and enforced in accordance with the laws of the State of
Texas and the United States of America.
SECTION 40: Effect of Headings. The Section headings
herein are for convenience only and shall not affect the
construction hereof.
SECTION 41: Construction of Terms. If appropriate in the
context of this Ordinance, words of the singular number shall be
considered to include the plural, words of the plural number shall
be considered to include the singular, and words of the masculine,
feminine or neuter gender shall be considered to include the other
genders.
SECTION 42: Severability. If any provision of this
Ordinance or the application thereof to any circumstance shall be
held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be
valid, and the City Council hereby declares that this Ordinance
would have been enacted without such invalid provision.
SECTION 43: Incorporation of Findings and Determinations.
The findings and determinations of the City Council contained in
the preamble hereof are hereby incorporated by reference and made
a part of this Ordinance for all purposes as if the same were
restated in full in this Section.
SECTION 44: Insurance. The Bonds have been offered and
sold with the principal of and interest thereon being insured by
AMBAC Indemnity Corporation (hereinafter called "AMBAC") pursuant
to a Municipal Bond Guaranty Insurance Policy. In accordance with
the terms and conditions applicable to insurance provided by AMBAC,
the City covenants and agrees that, in the event the principal and
0106934
-36-
interest due on the Bonds shall be paid by AMBAC pursuant to the
policy referred to this Section, the assignment and pledge of all
funds and all covenants, agreements and other obligations of the
City to the Holders shall continue to exist and AMBAC shall be
subrogated to the rights of such Holders; and furthermore, the City
covenants and agrees that:
(a) Consent of AMBAC where Holder Consent
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 Ordinance or the initiation by
Holders of any action to be taken under this Ordinance at
the Holder's request, which under this Ordinance (or
under such underlying documents requires the written
approval or consent of or can be initiated by the Holders
of a majority (50% percent) in aggregate principal amount
of the Bonds at the time Outstanding.
(b) Defeasance. In the event that the principal
and redemption price, if applicable, and interest due on
the Bonds shall be paid by AMBAC pursuant to the policy
referred to in this Section, all covenants, agreements
and other obligations of the City to the Holders shall
continue to exist and AMBAC shall be subrogated to the
rights of such Holders.
(c) Notices to be Given to AMBAC. While the
Municipal Bond Guaranty Insurance Policy is in effect,
the City shall furnish to AMBAC:
(1) as soon as practicable after the
filing thereof, a copy of any financial
statement of the City and a copy of any audit
and annual report of the City;
(2) a copy of any notice to be given to
the registered owners of the Bonds, including,
without limitation, notice of any redemption
or defeasance of Bonds, and any certificate
rendered pursuant to this Ordinance relating
to the security for the Bonds; and
(3) such additional information as it
may reasonably request.
The City will permit AMBAC to discuss the affairs,
finances and accounts of the City, or any information
AMBAC may reasonably request regarding the security for
the Bonds with appropriate officers of the City. The
0106034
-37-
City will permit AMBAC to have access to and make copies
of all books and records relating to the Bonds at any
reasonable time.
(d) Consent of AMBAC. Any provision of this
Ordinance expressly recognizing or granting rights in or
to AMBAC may not be amended in any manner which affects
the rights of AMBAC hereunder without the prior written
consent of AMBAC. Furthermore, anything in this
Ordinance to the contrary notwithstanding, upon the
AYrIr
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
T. t v t((-
Bonds for the benefit of such Holders.
YF (e) Concerning the Bond Insurance Policy. As long
as insurance for the Bonds shall be in full force and
effect, the City agrees to comply with the following
(„�.. 0/4 provisions:
�W \ (1) if five (5) days prior to an
interest payment date for the Bonds the City
determines that there will be insufficient
11 funds in the Interest and Sinking Fund to pay
T the principal of or interest on the Bonds on
such interest payment date, the City shall so
notify AMBAC. Such notice shall specify the
amount of the anticipated deficiency, the
Bonds to which such deficiency is applicable
and whether such Bonds will be deficient as to
principal or interest, or both.
(2) the City 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 City
maintained by the Paying Agent/Registrar, and
all records relating to the funds and accounts
maintained under this Ordinance.
(3) the City shall cause the Paying
Agent/Registrar to provide AMBAC and the
United States Trust Company of New York with a
list of registered owners of Bonds entitled to
receive principal or interest payments from
AMBAC under the terms of the Municipal Bond
Insurance Policy, and shall cause the Paying
Agent/Registrar to make arrangements with
United States Trust Company of New York (i) to
010N54
- -
mail checks or drafts to the registered owners
of Bonds entitled to receive full or partial
interest payments from AMBAC, and (ii) to pay
principal upon Bonds surrendered to United
States Trust Company of New York by the
registered owners of Bonds entitled to receive
full or partial principal payments from AMBAC.
(4) the City shall cause the Paying
Agent/Registrar to notify, at the time it
provides notice to AMBAC pursuant to (1)
above, the registered owners of Bonds entitled
to receive the payment of principal or
interest thereon from AMBAC (i) as to the fact
of such entitlement, (ii) that AMBAC will
remit to them all or a part of the interest
payments next coming due, (iii) that should
they be entitled to receive full payment of
principal from AMBAC they must tender their
Bonds (along with a form of transfer of title
thereto) for payment to United States Trust
Company of New York, as insurance trustee for
AMBAC, and not the Paying Agent/Registrar, and
(iv) that should they be entitled to receive
partial payment of principal from AMBAC they
must tender their Bonds for payment thereon
first to the Paying Agent/Registrar, who shall
note on such Bonds the portion of the
principal paid by the Paying Agent/Registrar,
and then, along with a form of transfer of
title thereto, to AMBAC, which will then pay
the unpaid portion of principal.
(5) AMBAC shall, to the extent it makes
a payment of principal of or interest on
Bonds, become subrogated to the rights of the
recipients of such payments in accordance with
the terms of the Municipal Bond Insurance
Policy, and to evidence such subrogation (i)
in the case of subrogation as to claims for
past due interest, the City shall cause the
Paying Agent/Registrar to note AMBAC's rights
as subrogee on the registration books of the
City maintained by the Paying Agent/Registrar
upon receipt from AMBAC of proof of the
payment of interest thereon to the registered
owners of the Bonds, and (ii) in the case of
subrogation as to claims for past due
principal, the City shall cause the Paying
Agent/Registrar to note AMBAC's rights as
0101 34
-39-
subrogee on the registration books of the City
maintained by the Paying Agent/ Registrar upon
surrender of the Bonds by the registered
owners thereof together with proof of the
payment of principal thereof.
SECTION 45: public Meeting. It is officially found,
determ and declared that the meeting at which this Ordinance
is-'adopted as open to the public and public notice of the time,
place, and ubject matter of the public business to be considered
at such meeting, including this Ordinance, was given, all as
required,
" by Article 6252-17, Vernon's Texas Civil Statutes, as
amended.
SECTION 46: Effective Date. This Ordinance shall take
effect and be in force immediately from and after its passage, and
it is so ordained.
PASSED AND ADOPTED, s August 12, 93.
CITY OF WYLIE, TEXAS
Mayor
ATTEST:
City Secretary
(City Seal)
oiOI 4
-40-
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as his
"Agreement") , by and between the Cit a7i.e. the
"Issuer") , and Ameritrust Texas National Association, a banking
association duly organized and existing under the laws of the
United States of America, (the "Bank") .
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the
execution and delivery of its "City of Wylie, Texas, Tax and
Waterworks and Sewer System Surplus Revenue Refunding Bonds,
Series 1993" (the "Securities") , dated August 1, 1993, such
Securities to be issued in fully registered form only as to the
payment of principal and interest thereon; and
WHEREAS, the Securities are scheduled to be delivered to the
initial purchasers thereof on or about September 14, 1993; and
WHEREAS, the Issuer has selected the Bank to serve as Paying
Agent/Registrar in connection with the payment of the principal
of, premium, if any, and interest on said Securities and with
respect to the registration, transfer and exchange thereof by the
registered owners thereof; and
WHEREAS, the Bank has agreed to serve in such capacities for
and on behalf of the Issuer and has full power and authority to
perform and serve as Paying Agent/Registrar for the Securities;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01. Appointment.
The Issuer hereby appoints the Bank to serve as Paying Agent
with respect to the Securities, and, as Paying Agent for the
Securities, the Bank shall be responsible for paying on behalf of
the Issuer the principal, premium (if any) , and interest on the
Securities as the same become due and payable to the registered
owners thereof; all in accordance with this Agreement and the
"Bond Resolution" (hereinafter defined) . The Issuer hereby
appoints the Bank as Registrar with respect to the Securities and,
as Registrar for the Securities, the Bank shall keep and maintain
0109004
for and on behalf of the Issuer books and records as to the
ownership of said Securities and with respect to the transfer and
exchange thereof as provided herein and in the "Bond Resolution".
The Bank hereby accepts its appointment, and agrees to serve
as the Paying Agent and Registrar for the Securities.
Section 1.02. Compensation.
As compensation for the Bank's services as Paying
Agent/Registrar, the Is �; �reby - rees to pay the Bank the fees
and amounts set forth Annex A at =ched hereto.
In addition, the Issuer agrees to reimburse the Bank upon its
Vf,
request for all reasonable expenses, disbursements and advances
e incurred or made by the Bank in accordance with any of the
provisions hereof (including the reasonable compensation and th
expenses and disbursements of its agents and counsel) .
V
ARTICLE TWO
�� DEFINITIONS
Ot16
1� Section 2. 01. Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
"Acceleration Date"- on any Security means the date on
and after which the principal or any or all installments of
interest, or both, are due and payable on any Security which
has become accelerated pursuant to the terms of the Security.
"Bank Off . s the principal oices of the Bank
located at the address a earing on page 12 hereof. The Bank
will notify th suer ' writing of any change in location
of the Bank Office.
"Bond Resolution" means the resolution, order, or
ordinance of the governing body of the 'Issuer pursuant to
which the Securities are issued, certified by the Secretary
or any other officer of the Issuer and delivered to the,Bank.
"Fiscal Year" means the fiscal year of the Issuer,
ending September 30th.
•15554
-2-
EXHIBIT A
"Holder" and "Security Holder" each means the Person in
whose name a Security is registered in the Security Register.
"Issuer Request" and "Issuer Order" means a written
request or order signed in the name of the Issuer by the
Mayor, City Secretary, City Manager, or Director of Finance
and Human Resources, any one or more of said officials, and
delivered to the Bank.
"Legal Holiday" means a day on which the Bank is
required or authorized to be closed.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision of a government.
"Predecessor Securities" of any particular Security
means every previous Security evidencing all or a portion of
the same obligation as that evidenced by such particular
Security (and, for the purposes of this definition, any
mutilated, lost, destroyed, or stolen Security for which a
replacement Security has been registered and delivered in
lieu thereof pursuant to Section 4.06 hereof and the
Resolution) .
"Redemption Date" when used with respect to any Security
to be redeemed means the date fixed for such redemption
pursuant to the terms of the Bond Resolution.
"Responsible Officer" when used with respect to the Bank
means the Chairman or Vice-Chairman of the Board of
Directors, the Chairman or Vice-Chairman of the Executive
Committee of the Board of Directors, the President, any Vice
President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Trust Officer or Assistant Trust
Officer, or any other officer of the Bank customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security Register" means a register maintained by the
Bank on behalf of the Issuer providing for the registration
and transfers of Securities.
0109004
-3-
.XHIBIT A
"Stated Maturity" means the date specified in the Bond
Resolution the principal of a Security is scheduled to be due
and payable.
Section 2.02. Other Definitions.
The terms "Bank, " "Issuer, " and "Securities (Security) " have
the meanings assigned to them in the recital paragraphs of this
Agreement.
The term "Paying Agent/Registrar" refers to the Bank in the
performance of the duties and functions of this Agreement.
ARTICLE THREE
PAYING AGENT
Section 3 .01. Duties of Paying Agent.
As Paying Agent, th=wank sha , • ovided adequate collected
funds have been provided • it for - purpose by or on behalf of
the Issuer, pay on behalf o e Issuer the principal of each
Security at its Stated Maturity, Redemption Date, or Acceleration
Date, to the Holder upon surrender of the Security to the Bank
Office.
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer the interest on each
Security when due, by computing the amount of interest to be paid
each Holder and making payment thereof to the Holders of the
Securities (or their Predecessor Securities) on the Record Date.
All payments of principal and/or interest on the Securities to the
registered owners shall be accomplished (1) by the issuance of
checks, payable to the registered owners, drawn on the fiduciary
account provided in Section 565 hereof, sent by United States
mail, first class, postage prepaid, to the address appearing on
the Security Register or (2) by such other method, acceptable to
the Bank, requested in writing by the Holder at the Holder's risk
and expense.
Section 3 .02. Payment Dates.
The Issuer hereby instructs the Bank to pay the principal of
and interest on the Securities at the dates specified in the Bond
Resolution.
0109004
-4-
EXHIBIT A
ARTICLE FOUR
REGISTRAR
Section 4.01. Security Register - Transfers and Exchanges.
The Bank agrees to keep and maintain for and on behalf of the
Issuer at the Bank Office books and records (herein sometimes
referred to as the "Security Register") for recording the names
and addresses of the Holders of the Securities, the transfer,
exchange and replacement of the Securities and the payment of the
principal of and interest on the Securities to the Holders and
containing such other information as may be reasonably required by
the Issuer and subject to such reasonable regulations as the
Issuer and Bank may prescribe. All transfers, exchanges and
replacement of Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer, the signature on which has been guaranteed by an officer
of a federal or state bank or a member of the National Association
of Securities Dealers, in form satisfactory' to the Bank, duly
executed by the Holder thereof or his agent duly authorized in
writing.
The Bank may request any supporting documentation it feels
necessary to effect a re-registration, transfer or exchange of the
Securities.
To the extent possible and under reasonable circumstances,
the Bank agrees that, in relation to an exchange or transfer of
Securities, the exchange or transfer by the Holders thereof will
be completed and new Securities delivered to the Holder or the
assignee of the Holder in not more than three (3) business days
after the receipt of the Securities to be cancelled in an exchange
or transfer and the written instrument of transfer or request for
exchange duly executed by the Holder, or his duly authorized
agent, in form and manner satisfactory to the Paying
Agent/Registrar.
Section 4.02. Certificates.
The Issuer shall provide an adequate inventory of printed
Securities to facilitate transfers or exchanges thereof. The Bank
covenants that the inventory of printed Securities will be kept in
safekeeping pending their use and reasonable care will be
exercised by the Bank in maintaining such Securities in
safekeeping, which shall be not less than the care maintained by
the Bank for debt securities of other governments or corporations
0109004
-5-
EXPB;T A
for which it serves as registrar, or that is maintained for its
own securities.
Section 4.03. Form of Security Register.
The Bank, as Registrar, will maintain the Security Register
relating to the registration, payment, transfer and exchange of
the Securities in accordance with the Bank's general practices and
procedures in effect from time to time. The Bank shall not be
obligated to maintain such Security Register in any form other
than those which the Bank has currently available and currently
utilizes at the time.
The Security Register may be maintained in written form or in
any other form capable of being converted into written form within
a reasonable time.
Section 4.04. List of Security Holders.
The Bank will provide the Issuer at any time requested by the
Issuer, upon payment of the required fee, a copy of the
information contained in the Security Register. The Issuer may
also inspect the information contained in the Security Register at
any time the Bank is customarily open for business, provided that
reasonable time is allowed the Bank to provide an up-to-date
listing or to convert the information into written form.
The Bank will not release or disclose the contents of the
0A' Security Register to any person other than to, or at the written
request of, an authorized officer or employee of the Issuer,
except upon receipt of a court order or as otherwise required by
law. Upon receipt of a court order and prior to the release or
disclosure of the contents of the Security Register, the Bank will
notify the Issuer so that the Issuer may contest the court order
or such release or disclosure of the contents of the Security
Register.
Section 4. 05. Return of Cancelled Certificates.
The Bank will, at such reasonable intervals as it determines,
surrender to the Issuer, Securities in lieu of which or in
exchange for which other Securities have been issued, or which
have been paid.
Section 4.06. Mutilated, Destroyed. Lost or Stolen Securi-
ties.
The Issuer hereby instructs the Bank, subject to the
provisions of Section 24 of the Bond Resolution, to deliver and
issue Securities in exchange for or in lieu of mutilated,
0109004
-6-
t T
N�R
destroyed, lost, or stolen Securities as long as the same does not
result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost
or stolen, the Bank may execute and deliver a replacement Security
of like form and tenor, and in the same denomination and bearing
a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in
substitution for such destroyed, lost or stolen Security, only
upon the approval of the Issuer and after (i) the filing by the
Holder thereof with the Bank of evidence satisfactory to the Bank
of the destruction, loss or theft of such Security, and of the
authenticity of the ownership thereof and (ii) the furnishing to
the Bank of indemnification in an amount satisfactory to hold the
Issuer and the Bank harmless. All expenses and charges associated
with such indemnity and with the preparation, execution and
delivery of a replacement Security shall be borne by the Holder of
the Security mutilated, or destroyed, lost or stolen.
Section 4.07. Transaction Information to Issuer.
The Bank will, within a reasonable time after receipt of
written request from the Issuer, furnish the Issuer information as
to the Securities it has paid pursuant to Section 3.01, Securities
it has delivered upon the transfer or exchange of any Securities
pursuant to Section 4.01, and Securities it has delivered in
exchange for or in lieu of mutilated, destroyed, lost, or stolen
Securities pursuant to Section .4.06.
ARTICLE FIVE
THE BANK
Section 5. 01. Duties of Bank.
The Bank undertakes to perform the duties set forth herein
and agrees to use reasonable care in the performance thereof.
Section 5.02. Reliance on Documents. Etc.
(a) The Bank may conclusively rely, as to the truth of the
statements and correctness of the opinions expressed therein, on
certificates or opinions furnished to the Bank.
(b) The Bank shall n liahljforany erro judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Bank was negligent in ascertaining the pertinent
facts.
(c) No provisions of this Agreement shall require the Bank
to expend or risk its own funds or otherwise incur any financial
0109004
-7-
liability for performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risks or
liability is not assured to it.
(d) The Bank may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, note, security, or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties. Without limiting the
generality of the foregoing statement, the Bank need not examine
the ownership of any Securities, but is protected in acting upon
receipt of Securities containing an endorsement or instruction of
transfer or power of transfer which appears on its face to be
signed by the Holder or an agent of the Holder. The Bank shall
not be bound to make any investigation into the facts or matters
stated in a resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
note, security, or other paper or document supplied by Issuer.
(e) The Bank may consult with counsel, and the written
advice of such counsel or any opinion of counsel shall be full and
complete authorization and protection with respect to any action
taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(f) The Bank may exercise any of the powers hereunder and
perform any duties hereunder either directly or by or through
agents or attorneys of the Bank.
Section 5. 03. Recitals of Issuer.
The recitals contained herein with respect to the Issuer and
in the Securities shall be taken as the statements of the Issuer,
and the Bank assumes no responsibility for their correctness.
The Bank shall in no event be liable to the Issuer, any
Holder or Holders of any Security, or any other Person for any
amount due on any Security from its own funds.
Section 5.04. May Hold Securities.
The Bank, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the
Issuer with the same rights it would have if it were not the
Paying Agent/Registrar, or any other agent.
0109004
-8-
EXHIBIT A
Section 5.05. Moneys Held by Bank - Fiduciary Account/
Collateralization.
A fiduciary account shall at all times be kept and maintained
by the Bank for the receipt, safekeeping and disbursement of
moneys received from the Issuer hereunder for the payment of the
Securities, and money deposited to the credit of such account
until paid to the Holders of the Securities shall be continuously
collateralized by securities or obligations which qualify and are
eligible under both .the laws of the State of Texas and-the laws of
the United States -of America to secure and be pledged as
collateral for fiduciary accounts to the extent such money is not
insured by the Federal Deposit Insurance Corporation. Payments
made from such fiduciary account- shall be made by check drawn on
such fiduciary account unless the owner of such Securities shall,
at its own expense and risk, request such other medium of payment.
The Bank shall be under no liability for interest on any
money received by it hereunder.
Subject to the applicable unclaimed property laws of the
State of Texas, any money deposited with the Bank for the payment
of the principal, premium (if any) , or interest on any Security
and remaining unclaimed for four years after final maturity of the
Security has become due and payable will be paid by the Bank to
the Issuer, and the Holder of such Security shall thereafter look
only to the Issuer for payment thereof, and all liability of the
Bank with respect to such moneys shall thereupon cease.
Section 5.06. Indemnification.
To the extent permitted by law, the Issuer agrees to
indemnify the Bank for, and hold it harmless against, any loss,
liability, or expense incurred without negligence or bad faith on
its part, arising out of or in connection with its acceptance or
administration of its duties hereunder, including the cost and
expense against any claim or liability in connection with the
exercise or performance of any of its powers or duties under this
Agreement.
Section 5.07. Interpleader.
The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over its
person as well as funds on deposit, in either a Federal or State
District Court located in the State and County where either the
Bank Office or the administrative offices of the Issuer is
located, and agree that service of process by certified or
registered mail, return receipt requested, to the address referred
to in Section 6.03 of this Agreement shall constitute adequate
0109004
-9-
EXHIBf T A
service. The Issuer and the Bank further agree that the Bank has
the right to file a Bill of Interpleader in any court of competent
jurisdiction to determine the rights of any Person claiming any
interest herein.
Section 5.08. DT Services.
It is hereby represented and warranted that, in the event the
Securities are otherwise qualified and accepted for "Depository
Trust Company" services or equivalent depository trust services by
other organizations, the Bank has the capability and, to the
extent within its control, will comply with the "Operational
Arrangements", effective August 1, 1987, which establishes
requirements for securities to be eligible for such type
depository trust services, including, but not limited to,
requirements for the timeliness of payments and funds
availability, transfer turnaround time, and notification of
redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment.
This Agreement may be amended only by an agreement in writing
signed by both of the parties hereto.
Section 6. 02 . Assignment.
This Agreement may not be assigned by either party without
the prior written consent of the other.
Section 6.03 . Notices.
Any request, demand, authorization, direction, notice,
consent, waiver, or other document provided or permitted hereby to
be given or furnished to the Issuer or the Bank shall be mailed
or delivered to the Issuer or the Bank, respectively, at the
addresses shown on page 12.
Section 6.04. Effect of Headings.
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
Section 6.05. Successors and Assigns.
All covenants and agreements herein by the Issuer shall bind
its successors and assigns, whether so expressed or not.
0109004
-10-
E'(NIRiT A
Section 6.06. Severability.
In case any provision herein shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 6.07. Benefits of Agreement.
Nothing herein, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, any
benefit or any legal or equitable right, remedy, or claim
hereunder.
Section 6.08. Entire Agreement.
This Agreement and the Bond Resolution constitute the entire
agreement between the parties hereto relative to the Bank acting
as Paying Agent/Registrar and if any conflict exists between this
Agreement and the Bond Resolution, the Bond Resolution shall
govern.
Section 6.09. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which shall
constitute one and the same Agreement.
Section 6. 10. Termination.
This Agreement will terminate (i) on the date of final
payment of the principal of and interest on the Securities to the
Holders thereof or (ii) may be earlier terminated by either party
upon sixty (60) days written notice; provided, however, an early
termination of this Agreement by either party shall not be
effective until (a) a successor Paying Agent/Registrar has been
appointed by the Issuer and such appointment accepted and (b)
notice given to the Holders of the Securities of the appointment
of a successor Paying Agent/Registrar. Furthermore, the Bank and
Issuer mutually agree that the effective date of an early
termination of this Agreement shall not occur at any time which
would disrupt, delay or otherwise adversely affect the payment of
the Securities.
Upon an early termination of this Agreement, the Bank agrees
to promptly transfer and deliver the Security Register (or a copy
thereof) , together with other pertinent books and records relating
to the Securities, to the successor Paying Agent/Registrar
designated and appointed by the Issuer.
0109004
-11-
_. iBIT A
The provisions of Section 1.02 and of Article Five shall
survive and remain in full force and effect following the
termination of this Agreement.
Section 6.11. Governing Law.
This Agreement shall be construed in accordance with and
governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
AMERITRUST TEXAS NATIONAL
ASSOCIATION
BY
Title:
[SEAL]
Attest:
Address: P. O. Box 2320
Dallas, TX 75221-2320
Title:
CITY OF WYLIE, TEXAS
BY
Mayor P'0 IA
(CITY SEAL)
Address: ?ems ch'Tay 78 North
Attest: Wylie, Texas 75098
City Secretary
0109004
-12-
EXHIBIT A
EXHIBIT C
SPECIAL ESCROW AGREEMENT
THE STATE OF TEXAS S
S
COUNTY OF DALLAS S
THIS SPECIAL ESCROW AGREEMENT (the "Agreement") , made and
entered into as of August 12, 1993, by and between the City of
Wylie, Texas, a duly incorporated municipal corporation in Collin
County, Texas (the "City") acting by and through the Mayor and
City Secretary, and Ameritrust Texas National Association, a
banking association organized and existing under the laws of the
United States of America, or its successors or assigns hereunder
(the "Bank") ,
W I T N E S S E T H :
WHEREAS, the City has duly issued certain obligations now
outstanding in the aggregate amount $5,165,000 (hereinafter
collectively referred to as the "Refunded Obligations") and more
particularly described as follows:
(1) City of Wylie, Texas, Waterworks and
Sewer System Revenue Bonds, Series 1971, dated
March 1, 1971, maturing on June 1 in each of the
years 1994 through 1996, and aggregating in
principal amount $ 80,000
(2) City of Wylie, Texas, Waterworks and
Sewer System Revenue Bonds, Series 1980, dated
March 1, 1980, maturing on June 1 in each of the
years 1997 through 2005, and aggregating in
principal amount $ 390,000
(3) City of Wylie, Texas, Waterworks and
Sewer System Revenue Bonds, Series 1986, dated
July 1, 1986, maturing on June 1 in each of the
years 1994 through 2006, and aggregating in
principal amount $ 130,000
(4) City of Wylie, Texas, General Obligation
Bonds, Series 1986, dated August 15, 1986,
maturing on February 15 in each of the years 1997
through 2006, and aggregating in principal amount $1,280,000
101892
(5) City of Wylie, Texas, Tax and Waterworks
and Sewer System Limited Pledge Revenue
Certificates of Obligation, Series 1988, dated
May 15, 1988, maturing on February 15 in each of
the years 1999 through 2008, and aggregating in
principal amount $ 910,000
(6) City of Wylie, Texas, Tax and Waterworks
and Sewer System Limited Pledge Revenue
Certificates of Obligation, Series 1990, dated
February 15, 1990, maturing on February 15 in each
of the years 2001 through 2010, and aggregating
in principal amount $2, 375,000
WHEREAS, in accordance with the provisions of Article 717k,
V.A.T.C.S. , as amended (the "Act") , the City is authorized to sell
refunding bonds in an amount sufficient to provide for the payment
of obligations to be refunded, deposit the proceeds of such
refunding bonds with any place of payment for the obligations being
refunded and enter into an escrow or similar agreement with such
place of payment for the safekeeping, investment, reinvestment,
administration and disposition of such deposit, upon such terms and
conditions as the parties may agree, provided such deposits may be
invested only in direct obligations of the United States of
America, including obligations the principal of and interest on are
unconditionally guaranteed by the United States of America,
(hereinafter called the "Federal Securities") that mature and/or
bear interest payable at such times and in such amounts as will be
sufficient to provide for the scheduled payment of Refunded
Obligations; and
WHEREAS, the Refunded Obligations are scheduled to mature, or
be redeemed, and interest thereon is payable on the dates and in
the manner set forth in Exhibit A attached hereto and incorporated
herein by reference as a part of this Agreement for all purposes;
and
WHEREAS, the City on the 12th day of August, 1993, pursuant to
an ordinance (the "Bond Ordinance") passed and adopted by the City
Council, authorized the issuance of bonds known as "City of Wylie,
Texas, Tax and Waterworks and Sewer System Surplus Refunding Bonds,
Series 1993" (the "Bonds") , and such Bonds are being issued to
refund, discharge and make final payment of the principal of and
interest on the Refunded Obligations; and
WHEREAS, upon the delivery of the Bonds, the proceeds of sale,
together with other available funds of the City, are to be
deposited with the Bank and used in part to purchase the Federal
Securities listed and identified in Exhibit B attached hereto and
010*992
-2-
EXHIBIT C
incorporated by reference as a part of this Agreement for all
purposes; and
WHEREAS, the Federal Securities shall be held and deposited to
the credit of the "Escrow Fund" to be established and maintained by
the Bank in accordance with this Agreement; and
WHEREAS, the Federal Securities, together with the beginning
cash balance in the Escrow Fund, shall mature and the interest
thereon shall be payable at such times to insure the existence of
monies sufficient to pay the principal amount of the Refunded
Obligations and the accrued interest thereon, as the same shall
become due in accordance with the terms of the ordinances
authorizing the issuance of the Refunded Obligations and as set
forth in Exhibit A attached hereto; and
WHEREAS, the City has completed all arrangements for the
purchase of the Federal Securities listed in Exhibit B and the
deposit and credit of the same to the Escrow Fund as provided
herein; and
WHEREAS, the Bank is a banking association organized and
existing under the laws of the United States of America, possessing
trust powers and is fully qualified and empowered to enter into
this Agreement; and
WHEREAS, in Section 30 of the Bond Ordinance, the City Council
duly approved and authorized the execution of this Agreement; and
WHEREAS, the City and the Escrow Agent, as the case may be,
shall take all action necessary to call, pay, redeem and retire
said Refunded Obligations in accordance with the provisions
thereof, including, without limitation, all actions required by the
ordinances authorizing the Refunded Obligations, the Act, the Bond
Ordinance and this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and to secure the payment of the principal :f and
the interest on the Refunded Obligations as the same shall necome
due, the City and the Bank hereby mutually undertake, promise and
agree as follows:
SECTION 1: Receipt of Refunded Bond Ordinances. Receipt
of copies of the . ordinances authorizing the issuance of the
Refunded Obligations and the Bond Ordinance are hereby acknowledged
by the Bank. Reference herein to or citation herein of any
provision of said documents shall be deemed an incorporation of
such provision as a part hereof in the same manner and with the
same effect as if it were fully set forth herein.
010 992
-3-
EXHIBIT C
SECTION 2: Escrow Fund Creation/Funding. There is hereby
created by the City with the Bank a special segregated and
irrevocable trust fund designated "SPECIAL 1993 CITY OF WYLIE,
TEXAS, TAX AND REVENUE REFUNDING BOND ESCROW FUND" (hereinafter
called the "Escrow Fund") for the benefit of the holders of the
Refunded Obligations, and, immediately following the delivery of
the Bonds, the City agrees and covenants to cause to be deposited
with the Bank the following amounts:
$5,665,871. 15 for the purchase of Federal Securities
identified in Exhibit B to be held for the
account of the Escrow Fund
$ 908.83 for deposit in the Escrow Fund as a
beginning cash balance.
The Bank hereby accepts the Escrow Fund and further agrees to
receive said moneys, apply the same as set forth herein, and to
hold the cash and Federal Securities deposited and credited to the
Escrow Fund for application and disbursement for the purposes and
in the manner provided in this Agreement.
SECTION 3: Escrow Fund Sufficiency Warranty. The City hereby
represents that the cash and Federal Securities, together with the
interest to be earned thereon, deposited to the credit of the
Escrow Fund will be sufficient to pay the principal of and premium
and interest on the Refunded Obligations as the same shall become
due and payable, and such Refunded Obligations, and the interest
thereon, are to mature or be redeemed and shall be paid at the
times and in the amounts set forth and identified in Exhibit A
attached hereto.
FURTHERMORE, the Bank acknowledges receipt of (1) a notice of
redemption with respect to the Series 1971 Refunded Obligations on
December 1, 1993 and with respect to the Series 1980 Refunded
Obligations on June 1, 1995 and (2) a copy of the resolution
providing for the redemption of (i) Series 1971 Refunded
Obligations on December 1, 1993 at the redemption price of par plus
accrued interest, (ii) Series 1980 Refunded Obligations on June 1,
1995 at the redemption price of par plus accrued interest, (iii)
Series 1986 Refunded Obligations identified in paragraph (iii) on
page 1 hereof on December 1, 1993 at the redemption price of par
plus accrued interest, (iv) Series 1986 Refunded Obligations
identified in paragraph (iv) on page 1 hereof on February 15, 1996
at the redemption price of par plus accrued interest, (v) Series
1988 Refunded Obligations on February 15, 1998 at the redemption
price of par plus accrued interest and (vi) Series 1990 Refunded
Obligations on February 15, 2000 at the redemption price of par
plus accrued interest; all in accordance with the provisions of the
010eee2
�¢ i T
respective notice requirements applicable to said Refunded
Obligations and the notice requirements contained in the ordinances
authorizing the Refunded Obligations.
The Bank agrees to cause a notice of redemption pertaining to
the Series 1986, Series 1988 and Series 1990 Refunded Obligations
to be sent to the registered owners thereof appearing on the
registration books at least thirty (30) days prior to the
redemption date therefor. The Bank further agrees it will cause on
a best effort basis to notify the holders of the Series 1971 and
Series 1980 Refunded Obligations of the respective dates of
redemption.
SECTION 4: Pledge of Escrow. The Bank agrees that all cash
and Federal Securities, together with any income or interest earned
thereon, held in the Escrow Fund shall be and is hereby irrevocably
pledged to the payment of the principal of and interest on the
Refunded Obligations which will mature and become due on and after
the date of this Agreement, and such funds initially deposited and
to be received from maturing principal and interest on the Federal
Securities in the Escrow Fund shall be applied solely in accordance
with the provisions of this Agreement.
SECTION 5: Escrow Insufficiency - City Warranty to Cure. If,
for any reason, the funds on hand in the Escrow Fund shall be
insufficient to make the payments set forth in Exhibit A attached
hereto, as the same becomes due and payable, the City shall make
timely deposits to the Escrow Fund, from lawfully available funds,
of additional funds in the amounts required to make such payments.
Notice of any such insufficiency shall be immediately given by the
Bank to the City by the fastest means possible, but the Bank shall
in no manner be responsible for the City's failure to make such
deposits.
SECTION 6: Escrow Fund Securities/Segregation. The Bank
shall hold said Federal Securities and moneys in the Escrow Fund at
all times as a special and separate trust fund for the benefit of
the holders of the Refunded Obligations, wholly segregated from
other moneys and securities on deposit with the Bank; shall never
commingle said Federal Securities and moneys with other moneys or
securities of the Bank; and shall hold and dispose of the assets
therein only as set forth herein. Nothing herein contained shall
be construed as requiring the Bank to keep the identical moneys, or
any part thereof, in said Escrow Fund, if it is impractical, but
moneys of an equal amount, except to the extent such are
represented by the Federal Securities, shall always be maintained
on deposit in the Escrow Fund by the Bank, as trustee; and a
special account evidencing such facts shall at all times be
maintained on the books of the Bank.
01O$992
-5-
T
EXHIB�
SECTION 7: escrow Fund Collections/Payments. The Bank shall
from time to time collect and receive the principal of and interest
on the Federal Securities as they respectively mature and become
due and credit the same to the Escrow Fund. On or before each
principal and/or interest payment date or redemption date, as the
case may be, for the Refunded Obligations shown in Exhibit A
attached hereto, the Bank, without further direction from anyone,
including the City, shall cause to be withdrawn from the Escrow
Fund the amount required to pay the accrued interest on the
Refunded Obligations due and payable on said payment date and the
principal of the Refunded Obligations due and payable on said
payment date or redemption date, as the case may be, and the amount
withdrawn from the Escrow Fund shall be immediately transmitted and
deposited with the paying agent for the Refunded Obligations to be
paid with such amount. The paying agent for the Refunded
Obligations is the Bank.
If any Refunded Obligation or interest coupon thereon shall
not be presented for payment when the principal thereof or interest
thereon shall have become due, and if cash shall at such times be
held by the Bank in trust for that purpose sufficient and available
to pay the principal of such Refunded Obligation and interest
thereon it shall be the duty of the Bank to hold said cash without
liability to the holder of such Refunded Obligation for interest
thereon after such maturity or redemption date, in trust for the
benefit of the holder of such Refunded Obligation, who shall
thereafter be restricted exclusively to said cash for any claim of
whatever nature on his part on or with respect to said Refunded
Obligation, including for any claim for the payment thereof and
interest thereon. All cash required by the provisions hereof to be
set aside or held in trust for the payment of the Refunded
Obligations, including interest thereon, shall be applied to and
used solely for the payment of the Refunded Obligations and
interest thereon with respect to which such cash has been so set
aside in trust.
Subject to the provisions of the last sentence of Section 25
hereof, cash held by the Bank in trust for the payment and
discharge of any of the Refunded Obligations and interest thereon
which remains unclaimed for a period of four (4) years after the
stated maturity date or redemption date of such Refunded
Obligations shall be returned to the City. Notwithstanding the
above and foregoing, any remittance of funds from the Bank to the
City shall be subject to any applicable unclaimed property laws of
the State of Texas.
0108992
-6-
EXHIBIT C
SECTION 8: Disposal of Refunded Obligations. All Refunded
Obligations cancelled on account of payment by the Bank shall be
disposed of or otherwise destroyed by the Bank, and an appropriate
certificate of destruction furnished the City.
SECTION 9: Escrow Fund Encumbrance. The escrow created
hereby shall be irrevocable and the holders of the Refunded
Obligations shall have an express lien on all moneys and Federal
Securities in the Escrow Fund until paid out, used and applied in
accordance with this Agreement.
Unless disbursed in payment of the Refunded Obligations, all
funds and the Federal Securities received by the Bank for the
account of the City hereunder shall be and remain the property of
the Escrow Fund and the City and the owners of the Refunded
Obligations shall be entitled to a preferred claim and shall have
a first lien upon such funds and Federal Securities enjoyed by a
trust beneficiary. The funds and Federal Securities received by
the Bank under this Agreement shall not be considered as a banking
deposit by the City and the Bank and the City shall have no right
or title with respect thereto, except as otherwise provided herein.
Such funds and Federal Securities shall not be subject to checks or
drafts drawn by the City.
SECTION 10: Absence of Bank Claim/Lien on Escrow Fund.
The Bank shall have no lien whatsoever upon any of the moneys or
Federal Securities in the Escrow Fund for payment of services
rendered hereunder, services rendered as paying agent/registrar for
the Refunded Obligations, or for any costs or expenses incurred
hereunder and reimbursable from the City.
SECTION 11: Substitution of Investments/Reinvestments. The
Bank shall be authorized to accept initially and temporarily cash
and/or substituted securities pending the delivery of the Federal
Securities identified in the Exhibit B attached hereto, or shall be
authorized to redeem the Federal Securities and reinvest the
proceeds thereof, together with other moneys held in the Escrow
Fund in noncallable direct obligations of the United States of
America provided such early redemption and reinvestment of proceeds
does not change the repayment schedule of the Refunded Obligations
appearing in Exhibit A and the Bank receives the following:
(1) an opinion by an independent certified public
accountant to the effect that (i) the initial and/or
temporary substitution of cash and/or securities for one
or more of the Federal Securities identified in
Exhibit B pending the receipt and delivery thereof to
the Escrow Agent or (ii) the redemption of one or more
of the Federal Securities and the reinvestment of such
funds in one or more substituted securities (which shall
0106992
-7-
EXH i3'
be noncallable direct obligations of the United States
of America) , together with the interest thereon and
other available moneys then held in the Escrow Fund,
will, in either case, be sufficient, without
reinvestment, to pay, as the same become due in
accordance with Exhibit A, the principal of, and
interest on, the Refunded Obligations which have not
previously been paid, and
(2) with respect to an early redemption of Federal
Securities and the reinvestment of the proceeds thereof,
an unqualified opinion of nationally recognized
- municipal bond counsel to the effect that (a) such
investment will not cause interest on the Bonds or
Refunded Obligations to be included in the gross income
for federal income tax purposes, under the Code and
related regulations as in effect on the date of such
investment, or otherwise make the interest on the Bonds
or the Refunded Obligations subject to Federal income
taxation and (b) such reinvestment complies with the
Constitution and laws of the State of Texas and with
all relevant documents relating to the issuance of the
Refunded Obligations and the Bonds.
SECTION 12 : Restriction on Escrow Fund Investments -
Reinvestment. Except as provided in Section 11 hereof, moneys in
the Escrow Fund will be invested only in the Federal Securities
listed in Exhibit B and neither the City nor the Bank shall
reinvest any moneys deposited in the Escrow Fund except as
specifically provided by this Agreement.
SECTION 14 : Excess Funds. If at any time through redemption
or cancellation of the Refunded Obligations there exists or will
exist excesses of interest on or maturing principal of the Federal
Securities in excess of the amounts necessary hereunder for the
Refunded Obligations, the Bank may transfer such excess amounts to
or on the order of the City, provided that the City delivers to
the Bank the following:
'(1) an opinion by an independent certified public
accountant that after the transfer of such excess, the
principal amount of securities in the Escrow Fund,
together with the interest thereon and other available
monies then held in the Escrow Fund, will be sufficient
to pay, as the same become due, in accordance with
Exhibit A, the principal of, and interest on, the
Refunded Obligations which have not previously been
paid, and
0100902
-8-
,J�a�� -
(2) an unqualified opinion of nationally
recognized municipal bond counsel to the effect that (a)
such transfer will not cause interest on the Bonds or
the Refunded Obligations to be included in gross income
for federal income tax purposes, under the Code and
related regulations as in effect on the date of such
transfer, or otherwise make the interest on the Bonds or
the Refunded Obligations subject to Federal income
taxation, and (b) such transfer complies with the
Constitution and laws of the State of Texas and with all
relevant documents relating to the issuance of the
Refunded Obligations or the Bonds.
SECTION 14: Collateralization. The Bank shall continuously
secure the monies in the Escrow Fund not invested in Federal
Securities by a pledge of direct obligations of the United States
of America, in the par or face amount at least equal to the
principal amount of said uninvested monies to the extent such
money is not insured by the Federal Deposit Insurance Corporation.
SECTION 15: absence of Bank's Liability for Investments.
The Bank shall not be liable or responsible for any loss resulting
from any investment made in the Federal Securities or substitute
securities as provided in Section 11 hereof.
SECTION 16: Bank's Compensation - Escrow Administration/
Settlement of Paving Agent's Charges. The City agrees to pay the
Bank for the performance of services hereunder and as
reimbursement for anticipated expenses to be incurred hereunder
the amount of $5,500.00 and, except for reimbursement of costs and
expenses incurred by the Bank pursuant to Sections 3 , 11 and 19
hereof, the Bank hereby agrees said amount is full and complete
payment for the administration of this Agreement.
The City also agrees to deposit with the Bank on the
effective date of this Agreement, the sum of $11,765 which deposit
represents the total charges due for the Refunded Obligations and
the Bank acknowledges and agrees that the above amount is and
represents the total amount of compensation due the Bank for
services rendered as paying agent for the Refunded Obligations.
The Bank hereby agrees to pay, assume and be fully responsible for
any additional charges that it may incur in the performance of its
duties and responsibilities as paying agent for the Refunded
Obligations. -
0108992
-9-
The City acknowledges and agrees that the above amount
deposited with the Escrow Agent to cover paying agents' charges
and expenses does not include amounts which shall become due and
payable for services rendered as registrar and transfer agent for
fully registered Refunded Obligations, and the City agrees to pay
directly to each "registrar" for the Refunded Obligations all
reasonable costs, expenses and charges incurred in connection with
the maintenance of the registration books and records and the
transfer of such fully registered obligations as and when such
costs, expenses and charges are incurred and against written
invoices, statements or bills submitted therefor.
SECTION 17: Escrow Agent's Duties / Responsibilities/
Liability. The Bank shall not be responsible for any recital
herein, except with respect to its organization and its powers and
authority. As to the existence or nonexistence of any fact
relating to the City or as to the sufficiency or validity of any
instrument, paper or proceedings relating to the City, the Bank
shall be entitled to rely upon a certificate signed on behalf of
the City by its City Manager or Mayor and/or City Secretary of the
City as sufficient evidence of the facts therein contained. The
Bank may accept a certificate of the City Secretary under the
City's seal, to the effect that a resolution or other instrument
in the form therein set forth has been adopted by the City Council
of the City, as conclusive evidence that such resolution or other
instrument has been duly adopted and is in full force and effect.
The duties and obligations of the Bank shall be determined
solely by the express provisions of this Agreement and the Bank
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this
Agreement against the Bank.
In the absence of bad faith on the part of the Bank, the Bank
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificate or opinion furnished to the Bank, conforming to the
requirements of this Agreement; but notwithstanding any provision
of this Agreement to the contrary, in the case of any such
certificate or opinion or any evidence which by any provision
hereof is specifically required to be furnished to the Bank, the
Bank shall be under a duty to examine the same to determine
whether it conforms to the requirements of this Agreement.
The Bank shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Bank
unless it shall be proved that the Bank was negligent in
ascertaining or acting upon the pertinent facts.
0106992
-10-
EXHIBIT C
The Bank shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in aggregate
principal amount of all said Refunded Obligations at the time
outstanding relating to the time, method and place of conducting
any proceeding for any remedy available to the Bank not in
conflict with the intent and purpose of this Agreement. For the
purposes of determining whether the holders of the required
principal amount of said Refunded Obligations have concurred in
any such direction, Refunded Obligations owned by any obligor upon
the Refunded Obligations, or by any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such obligor, shall be disregarded, except that for
the purposes of determining whether the Bank shall be protected in
relying on any such direction only Refunded Obligations which the
Bank knows are so owned shall be so disregarded.
The term "Responsible Officers" of the Bank, as used in this
Agreement, shall mean and include the Chairman of the Board of
Directors, the President, any Vice President and any Second Vice
President, the Secretary and any Assistant Secretary, the
Treasurer and any Assistant Treasurer, and every other officer and
assistant officer of the Bank customarily performing functions
similar to those performed by the persons who at the time shall be
officers, respectively, or to whom any corporate trust matter is
referred, because of his knowledge of and familiarity with a
particular subject; and the term "Responsible. Officer" of the
Bank, as used in this Agreement, shall mean and include any of
said officers or persons.
SECTION 18: Limitation Re: Bank's Duties/Responsibilities!
Liabilities to Third Parties. The Bank shall not be responsible
or liable to any person in any manner whatever for the
sufficiency, correctness, genuineness, effectiveness, or validity
of this Agreement with respect to the City, or for the identity or
authority of any person making or executing this Agreement for and
on behalf of the City. The Bank is authorized by the City to rely
upon the representations of the City with respect to this
Agreement and the deposits made pursuant hereto and as to the
City's right and power to execute and deliver this Agreement, and
the Bank shall not be liable in any manner as a result of such
reliance. The duty of the Bank hereunder shall only be to the
City and the holders of the Refunded Obligations. Neither the
City nor the Bank shall assign or attempt to assign or transfer
any interest hereunder or any portion of any such interest. Any
such assignment or attempted assignment shall be in direct
conflict with this Agreement and be without effect.
0106992
-IL-
EXHIBIT C
SECTION 19: Interpleader. In the event conflicting demands
or notices are made upon the Bank growing out of or relating to
this Agreement or the Bank in good faith is in doubt as to what
action should be taken hereunder, the Bank shall have the right at
its election to:
(a) Withhold and stop all further proceedings in,
and performance of, this Agreement with respect to the
issue in question and of all instructions received
hereunder in regard to such issue; and
(b) File a suit in interpleader and obtain an
order from a court of appropriate jurisdiction requiring
all persons involved to interplead and litigate in such
court their several claims and rights among themselves.
In the event the Bank becomes involved in litigation in
connection with this Section, the City, to the extent permitted by
law, agrees to indemnify and save the Bank harmless from all loss,
cost, damages, expenses and attorney fees suffered or incurred by
the Bank as a result thereof. The obligations of the Bank under
this Agreement shall be performable at the principal corporate
office of the Bank in the City of Dallas, Texas.
The Bank may advise with legal counsel in the event of any
dispute or question regarding the construction of any of the
provisions hereof or its duties hereunder, and in the absence of
negligence or bad faith on the part of the Bank, no liability
shall be incurred by the Bank for any action taken pursuant to
this Section and the Bank shall be fully protected in acting in
accordance with the opinion and instructions of legal counsel that
is knowledgeable and has expertise in the field of law addressed
in any such legal opinion or with respect to the instructions
given.
SECTION 20: Accounting - Annual Report. Promptly after
September 30th of each year, commencing with the year 1993, while
the Escrow Fund is maintained under this Agreement, the Bank shall
forward to the City, to the attention of the City Manager, or
other designated official of the City, a statement in detail of
the Federal Securities and monies held, and the current income and
maturities thereof, and the withdrawals of money from the Escrow
Fund for the preceding 12 month period ending September 30th of
each year.
0106992
-12-
gXH!PIT '
SECTION 21: Notices. Any notice, authorization, request or
demand required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given when mailed by
registered or certified mail, postage prepaid addressed as
follows:
CITY OF WYLIE, TEXAS
2000 Highway 78 North
Wylie, Texas 75098
Attention: City Manager
AMERITRUST TEXAS NATIONAL ASSOCIATION
P. O. Box 2320
Dallas, texas 75201
Attention: Debt Administration
The United States Post Office registered or certified mail receipt
showing delivery of the aforesaid shall be conclusive evidence of
the date and fact of delivery.
Any party hereto may change the address to which notices are
to be delivered by giving to the other parties not less than ten
(10) days prior notice thereof.
SECTION 22: performance Date. Whenever under the terms of
this Agreement the performance date of any provision hereof,
including the date of maturity of interest on or principal of the
Refunded Obligations, shall be a Sunday or a legal holiday or a
day on which the Bank is authorized by law to close, then the
performance thereof, including the payment of principal of and
interest on the Refunded Obligations, need not be made on such
date but may be performed or paid, as the case may be, on the next
succeeding business day of the Bank with the same force and effect
as if made on the date of performance or payment and with respect
to a payment, no interest shall accrue for the period after such
date.
SECTION 23: Warranty of Parties Re: Power to Execute and
Deliver Escrow Agreement. The City covenants that it will
faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this
Agreement, in any and every said Refunded Obligation as executed,
authenticated and delivered and in all proceedings pertaining
thereto as said Refunded Obligations shall have been modified as
provided in this Agreement. The City covenants that it is duly
authorized under the Constitution and laws of the State of Texas
910E992
-13-
f I
to execute and deliver this Agreement, that all actions on its
part for the payment of said Refunded Obligations as provided
herein and the execution and delivery of this Agreement have been
duly and effectively taken and that said Refunded Obligations and
coupons in the hands of the holders and owners thereof are and
will be valid and enforceable obligations of the City according to
the import thereof as provided in this Agreement.
SECTION 24: Severability. If any one or more of the
covenants or agreements provided in this Agreement on the part of
the parties to be performed should be determined by a court of
competent jurisdiction to be contrary to law, such covenant or
agreement shall be deemed and construed to be severable from the
remaining covenants and agreements herein contained and shall in
no way affect the validity of the remaining provisions of this
Agreement. In the event any covenant or agreement contained in
this Agreement is declared to be severable from the other
provisions of this Agreement, written notice of such event shall
immediately be given to each national rating service (Moody's
Investors Service, Standard & Poor's Corporation or Fitch
Investors Service) which has rated the Refunded Obligations on the
basis of this Agreement.
SECTION 25: Termination. This Agreement shall terminate
when the Refunded Obligations, including interest due thereon,
have been paid and discharged in accordance with the provisions of
this Agreement. If any Refunded Obligations are not presented for
payment when due and payable, the nonpayment thereof shall not
prevent the termination of this Agreement. Funds for the payment
of any nonpresented Refunded Obligations and accrued interest
thereon shall upon termination of this Agreement be held by the
Bank for such purpose in accordance with Section 7 hereof. Any
moneys or Federal Securities held in the Escrow Fund at
termination and not needed for the payment of the principal of or
interest on any of the Refunded Obligations shall be paid or
transferred to the City.
SECTION 26: Time of the Essence. Time shall be of the
essence in the performance of obligations from time to time
imposed upon the Bank by this Agreement.
SECTION 27: Successors/Assigns. (a) Should the Bank not
be able to legally serve or perform the duties and obligations
under this Agreement, or should the Bank be declared to be
insolvent or closed for any reason by federal or state regulatory
authorities or a court of competent jurisdiction, the City, upon
being notified or discovering the Bank's inability or
disqualification to serve hereunder, shall forthwith appoint a
successor to replace the Bank, and upon being notified of such
appointment, the Bank shall (i) transfer all funds and securities
ola89B4
-14-
EXHiD
held hereunder, together with all books, records and accounts
relating to the Escrow Fund and the Refunded Obligations, to such
successor and (ii) assign all rights, duties and obligations under
this Agreement to such successor. If the City should fail to
appoint such a successor within ninety (90) days from the date the
City discovers, or is notified of, the event or circumstance
causing the Bank's inability or disqualification to serve
hereunder, the Bank, or a bondholder of the Refunded Obligations,
may apply to a court of competent jurisdiction to appoint a
successor or assigns of the Bank and such court, upon determining
the Bank is unable to continue to serve, shall appoint a successor
to serve under this Agreement and the amount of compensation, if
any, to be paid to such successor for the remainder of the term of
this Agreement for services to be rendered both for administering
the Escrow Fund and for paying agent duties and responsibilities
for the Refunded Obligations.
(b) Furthermore, the Bank may resign and be discharged from
performing its duties and responsibilities under this Agreement
upon notifying the City in writing of its intention to resign and
requesting the City to appoint a successor. No such resignation
shall take effect until a successor has been appointed by the City
and such successor has accepted such appointment and agreed to
perform all duties and obligations hereunder for a total
compensation equal to the unearned proportional amount paid the
Bank under Section 16 hereof for the administration of this
Agreement and the unearned proportional amount of the paying
agents fees for the Refunded Obligations due the Bank.
Any successor to the Bank shall be a bank, trust company or
other financial institution that is duly qualified under
applicable law (the Act or other appropriate statute) to serve as
escrow agent hereunder and authorized and empowered to perform the
duties and obligations contemplated by this Agreement and
organized and doing business under the laws of the United States
or the State of Texas, having its principal office and place of
business in the State of Texas, having a combined capital and
surplus of at least $5,000,000 and be subject to the supervision
or examination by Federal or State authority.
Any successor or assigns to the Bank shall execute,
acknowledge and deliver to the City and the Bank, or its successor
or assigns, an instrument accepting such appointment hereunder,
and the Bank shall execute and deliver an instrument transferring
to such successor, subject to the terms of this Agreement, all the
rights, powers and trusts created and established and to be
performed under this Agreement. Upon the request of any such
successor Bank, the City shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor Bank all such rights, powers and duties. The term
0106992
-15-
kHlBll k;
"Bank" as used herein shall be the Bank and its legal assigns and
successor hereunder.
SECTION 28: Escrow Agreement - Amendment/Modification. This
Agreement shall be binding upon the City and the Bank and their
respective successors and legal representatives and shall inure
solely to the benefit of the holders of the Refunded Obligations,
the City, the Bank and their respective successors and legal
representatives. Furthermore, no alteration, amendment or
modification of any provision of this Agreement shall (1) alter
the firm financial arrangements made for the payment of the
Refunded Obligations or (2) be effective unless (i) prior written
consent of such alteration, amendment or modification shall have
been obtained from the holders of all Refunded Obligations
outstanding at the time of such alteration, amendment or
modification and (ii) such alteration, amendment or modification
is in writing and signed by the parties hereto; provided, however,
the City and the Bank may, without the consent of the holders of
the Refunded Obligations, amend or modify the terms and provisions
of this Agreement to cure in a manner not adverse to the holders
of the Refunded Obligations any ambiguity, formal defect or
omission in this Agreement. If the parties hereto agree to any
amendment or modification to this Agreement, prior written notice
of such amendment or proposed modification, together with the
legal documents amending or modifying this Agreement, shall be
furnished to each national rating service (Standard & Poor's
Corporation, Moody's Investors Service or Fitch Investors Service)
which has rated the Refunded Obligations on the basis of this
Agreement, prior to such amendment or modification being executed.
SECTION 29: Effect of Headings. The Section headings herein
are for convenience only and shall not affect the construction
hereof.
SECTION 30: Executed Counterparts. This Agreement may be
executed in several counterparts, all or any of which shall be
regarded for all purposes as one original and shall constitute and
be but one and the same instrument. This Agreement shall be
governed by the laws of the State of Texas and shall be effective
as of the date of the delivery of the Bonds.
0108992
-16-
rV,H!BtT C
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be executed by their duly authorized officers and
their corporate seals to be hereunto affixed and attested as of
the date first above written.
CITY OF WYLIE, TEXAS
Mayor
ATTEST:
City Secretary
(City Seal) .
AMERITRUST TEXAS NATIONAL
ASSOCIATION,
as Escrow Agent
Title:
ATTEST:
Authorized Signer
(Bank Seal)
omen
-17-
EX`-1fBIT C