ORD 1998-19 - Tax Notes, Series 1998 09-22-1998ORDINANCE NO. 98 -19
AN ORDINANCE authorizing the issuance of "CITY OF HUNTSVILLE, TEXAS,
TAX NOTES, SERIES 1998 "; specifying the terms and features of said
notes; levying a continuing direct annual ad valorem tax for the payment of
said notes; and resolving other matters incident and related to the issuance,
sale, payment and delivery of said notes, including the approval and
execution of a Paying Agent/Registrar Agreement and the approval and
distribution of an Official Statement; and providing an effective date.
WHEREAS, pursuant to Chapter 137, Acts of the 73rd Legislature, Regular Session,
1993 (Article 717w, Vernon's Texas Civil Statutes), hereinafter called the "Act ", the City Council
is authorized and empowered to issue notes to pay contractual obligations to be incurred (i) for
the construction of any public work,(ii) for the purchase of materials, supplies, equipment,
machinery, buildings, lands and rights -of -way for the City's authorized needs and purposes and
(iii) for professional services; and
WHEREAS, in accordance with the provisions of the Act, the City Council hereby finds
and determines that notes should be issued and sold at this time to finance the costs of paying
contractual obligations to be incurred for professional services rendered in relation to street
improvements and the financing thereof; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HUNTSVILLE, TEXAS:
SECTION 1: Authorization - Designation- Principal Amount - Purpose. Notes of the City
shall be and are hereby authorized to be issued in the aggregate principal amount of $845,000,
to be designated and bear the title "CITY OF HUNTSVILLE, TEXAS, TAX NOTES, SERIES
1998" (hereinafter referred to as the "Notes "), for the purpose of paying contractual obligations
to be incurred for (i) street improvements, including drainage incidental thereto, and (ii)
professional services rendered in relation to such projects and the financing thereof, in
conformity with the Constitution and laws of the State of Texas, including Article 717w,
V.A.T.C.S.
SECTION 2: Fully Registered Obligations - Note Date - Authorized Denominations
- Stated Maturities - Interest Rates. The Notes shall be issued as fully registered obligations only,
shall be dated October 15, 1998 (the "Note Date "), shall be in denominations of $5,000 or any
integral multiple (within a Stated Maturity) thereof, and shall become due and payable on
February 15 in each of the years and in principal amounts (the "Stated Maturities ") and bear
interest at per annum rates in accordance with the following schedule:
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Principal
Interest
Stated Maturity
Amount
Rate (s)
1999
$240,000
%
2000
255,000
%
2001
275,000
%
2002
75,000
%
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The Notes shall bear interest on the unpaid principal amounts from the Note Date at the
rate(s) per annum shown above in this Section (calculated on the basis of a 360 -day year of
twelve 30 -day months). Interest on the Notes shall be payable on February 15 and August 15
in each year, commencing February 15, 1999.
SECTION 3: Terms of Payment- Paving Agent/Registrar. The principal of, premium, if
any, and the interest on the Notes, due and payable by reason of maturity, redemption or
otherwise, shall be payable only to the registered owners or holders of the Notes (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 U. S. Trust Company of Texas, N.A., Dallas, Texas,
to serve as Paying Agent/Registrar for the Notes is hereby approved and confirmed. Books and
records relating to the registration, payment, transfer and exchange of the Notes (the "Security
Register") shall at all times be kept and maintained on behalf of the City by the Paying
Agent/Registrar, as provided 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 Notes. The City covenants to maintain and provide a Paying
Agent/Registrar at all times until the Notes 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 Notes, 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 Notes shall be payable at the Stated Maturities
or the redemption thereof, only upon presentation and surrender of the Notes to the Paying
Agent/Registrarat its offices in New York, NewYork (the "Designated Payment/TransferOffice ").
Interest on the Notes 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 Notes shall be a Saturday, Sunday, a legal holiday, or a day when
banking institutions in the City where the Designated Payment/Transfer Office of the Paying
Agent/Registrar is located are authorized by law or executive order to close, then the date for
such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal
holiday, or day when banking institutions are authorized to close; and payment on such date
shall have the same force and effect as if made on the original date payment was due.
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In the event of a nonpayment of interest on a scheduled payment date, and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date ") will be
established by the Paying Agent/ Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be 15 days after the Special Record Date)
shall be sent at least five (5) business days prior to the Special Record Date by United States
Mail, first class postage prepaid, to the address of each Holder appearing on the Security
Register at the close of business on the last business day next preceding the date of mailing of
such notice.
SECTION 4: Redemption. (a) Optional Redemption. The Notes 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), at any time 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 Notes (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
Notes, 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 Notes shall be entered in the
minutes of the governing body of the City.
(c) Selection of Notes for Redemption. If less than all Outstanding Notes of the same
Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar shall treat
such Notes as representing the number of Notes Outstanding which is obtained by dividing the
principal amount of such Notes by $5,000 and shall select the Notes, or principal amount thereof,
to be redeemed within such Stated Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date
for the Notes, 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 Note 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 Notes, (ii) identify
the Notes 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
Notes, or the portion of the principal amount thereof to be redeemed, shall become due and
payable on the redemption date specified, and the interest thereon, or on the portion of the
principal amount thereof to be redeemed, shall cease to accrue from and after the redemption
date, and (v) specify that payment of the redemption price for the Notes, or the principal amount
thereof to be redeemed, shall be made at the Designated Payment/Transfer Office of the Paying
Agent/Registrar only upon presentation and surrender thereof by the Holder. If a Note 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 Note (or the principal amount thereof
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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 Notes - Predecessor Notes. The
Paying Agent/Registrar shall obtain, record, and maintain in the Security Register the name and
address of each and every owner of the Notes issued under and pursuant to the provisions of
this Ordinance, or if appropriate, the nominee thereof. Any Note may be transferred or
exchanged for Notes of other authorized denominations by the Holder, in person or by his duly
authorized agent, upon surrender of such Note to 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 Note for transfer at the Designated Payment/Transfer Office of
the Paying Agent/Registrar, the Paying Agent/Registrar shall register and deliver, in the name
of the designated transferee ortransferees, one or more new Notes of authorized denominations
and having the same Stated Maturity and of a like aggregate principal amount as the Note or
Notes surrendered for transfer.
At the option of the Holder, Notes may be exchanged for other Notes of authorized
denominations and having the same Stated Maturity, bearing the same rate of interest and of
like aggregate principal amount as the Notes surrendered for exchange, upon surrender of the
Notes to be exchanged at the Designated Payment/Transfer Office of the Paying
Agent/Registrar. Whenever any Notes are surrendered for exchange, the Paying
Agent/Registrar shall register and deliver new Notes to the Holder requesting the exchange.
All Notes issued in any transfer or exchange of Notes shall be delivered to the Holders
at the Designated Payment/Transfer Office of the Paying Agent/Registrar or sent by United
States Mail, first class, postage prepaid to the Holders, and, upon the registration and delivery
thereof, the same shall be the valid obligations of the City, evidencing the same obligation to
pay, and entitled to the same benefits under this Ordinance, as the Notes surrendered in such
transfer or exchange.
All transfers or exchanges of Notes 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.
Notes cancelled by reason of an exchange or transfer pursuant to the provisions hereof
are hereby defined to be "Predecessor Notes," evidencing all or a portion, as the case may be,
of the same obligation to pay evidenced by the new Note or Notes registered and delivered in
the exchange or transfer therefor. Additionally, the term "Predecessor Notes" shall include any
mutilated, lost, destroyed, or stolen Note for which a replacement Note has been issued,
registered, and delivered in lieu thereof pursuant to the provisions of Section 11 hereof and such
new replacement Note shall be deemed to evidence the same obligation as the mutilated, lost,
destroyed, or stolen Note.
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Neither the City nor the Paying Agent/Registrar shall be required to issue or transfer to
an assignee of a Holder any Note called for redemption, in whole or in part, within 45 days of the
date fixed for the redemption of such Note; provided, however, such limitation on transferability
shall not be applicable to an exchange by the Holder of the unredeemed balance of a Note
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 Notes, 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 Notes.
Pursuant to the Depository Agreement and the rules of DTC, the Notes shall be deposited
with DTC who shall hold said Notes for its participants (the "DTC Participants "). While the Notes
are held by DTC under the Depository Agreement, the Holder of the Notes on the Security
Register for all purposes, including payment and notices, shall be Cede & Co., as nominee of
DTC, notwithstanding the ownership of each actual purchaser or owner of each Note (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 Notes
or otherwise ceases to provide book -entry clearance and settlement of securities transactions
in general or the City determines that DTC is incapable of properly discharging its duties as
securities depository for the Notes, the City covenants and agrees with the Holders of the Notes
to cause Notes to be printed in definitive form and provide for the Note certificates to be issued
and delivered to DTC Participants and Beneficial Owners, as the case may be. Thereafter, the
Notes in definitive form shall be assigned, transferred and exchanged on the Security Register
maintained by the Paying Agent/Registrar and payment of such Notes shall be made in
accordance with the provisions of Sections 3, 4 and 5 hereof.
SECTION 7: Execution - Registration. The Notes shall be executed on behalf of the
City by the Mayor under its seal reproduced or impressed thereon and countersigned by the City
Secretary. The signature of said officers on the Notes may be manual or facsimile. Notes
bearing the manual or facsimile signatures of individuals who are the Mayor and City Secretary
of the City executing this Ordinance 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 Notes to the initial purchaser(s) and with respect to Notes delivered in
subsequent exchanges and transfers, all as authorized and provided in the Bond Procedures
Act of 1981, as amended.
No Note shall be entitled to any right or benefit under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Note 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
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upon any Note shall be conclusive evidence, and the only evidence, that such Note has been
duly certified, registered, and delivered.
SECTION 8: Initial Note(s). The Notes herein authorized shall be initially issued either
(i) as a single fully registered note in the total principal amount of $845,000 with principal
installments to become due and payable as provided in Section 2 hereof and numbered T -1, or
(ii) as four (4) fully registered notes, being one note for each stated maturity in the applicable
principal amount and denomination and to be numbered consecutively from T -1 and upward
(hereinafter called the "Initial Note(s)") and, in either case, the Initial Note(s) shall be registered
in the name of the initial purchaser(s) or the designee thereof. The Initial Note(s) shall be the
Notes 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 Note(s), the Paying
Agent/Registrar, pursuant to written instructions from the initial purchaser(s), or the designee
thereof, shall cancel the Initial Note(s) delivered hereunder and exchange therefor definitive
Notes 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 Notes, 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 Notes, 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
Notes, or any maturities thereof, are purchased 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 Notes as evidenced by their execution. Any portion
of the text of any Notes may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Note.
The definitive Notes and the Initial Note(s) shall be printed, lithographed, or engraved,
typewritten, photocopied or otherwise reproduced in any other similar manner, all as determined
by the officers executing such Notes as evidenced by their execution thereof.
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B. Form of Definitive Note.
REGISTERED REGISTERED
NO. $
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF HUNTSVILLE, TEXAS
TAX NOTE, SERIES 1998
Note Date: Interest Rate: Stated Maturity: CUSIP NO:
October 15, 1998
Registered Owner:
Principal Amount: DOLLARS
The City of Huntsville (hereinafter referred to as the "City "), a body corporate and political
subdivision in the County of Walker, 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 Note 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, 1999. Principal of this Note is payable at its Stated Maturity or redemption to the registered
owner hereof, upon presentation and surrender, at the Designated Payment/Transfer Office of
the Paying Agent/Registrar executing the registration certificate appearing hereon, or its
successor. Interest is payable to the registered owner of this Note (or one or more Predecessor
Notes, 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 payments of principal of, premium,
if any, and interest on this Note 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 Note is one of the series specified in its title issued in the aggregate principal amount
of $845,000 (herein referred to as the "Notes ") for the purpose of paying contractual obligations
to be incurred for professional services rendered in relation to street improvements and the
financing thereof, under and in strict conformity with the Constitution and laws of the State of
Texas and pursuant to an Ordinance adopted by the City Council of the City (herein referred to
as the "Ordinance ").
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The Notes 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), at any time at the redemption price of par,
together with accrued interest to the date of redemption.
At least thirty days prior to the date fixed for any redemption of Notes, the City shall
cause a written notice of such redemption to be sent by United States Mail, first class postage
prepaid, to the registered owners of each Note to be redeemed at the address shown on the
Security Register and subject to the terms and provisions relating thereto contained in the
Ordinance. If a Note (or any portion of its principal sum) shall have been duly called for
redemption and notice of such redemption duly given, then upon such redemption date such
Note (or the portion of its principal sum 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 a portion of the principal amount of a Note is to be redeemed and the
registered owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender
of such Note to the Designated Payment/Transfer Office of the Paying Agent/Registrar, and a
new Note or Notes of like maturity and interest rate in any authorized denominations provided
by the Ordinance for the then unredeemed balance of the principal sum thereof will be issued
to the registered owner, without charge. If a Note is selected for redemption, in whole or in part,
the City and the Paying Agent/Registrar shall not be required to transfer such Note to an
assignee of the registered owner within 45 days of the redemption date therefor, provided,
however, such limitation on transferability shall not be applicable to an exchange by the
registered owner of the unredeemed balance of a Note redeemed in part.
The Notes are payable from the proceeds of an ad valorem tax levied, within the
limitations prescribed by law, upon all taxable property in the City. Reference is hereby made
to the Ordinance, a copy of which is on file in the Designated Payment/Transfer Office of the
Paying Agent/Registrar, and to all of the provisions of which the owner or holder of this Note 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 Notes; the terms and conditions relating to
the transfer or exchange of this Note; the conditions upon which the Ordinance may be amended
or supplemented with or without the consent of the Holders; the rights, duties, and obligations
of the City and the Paying Agent/Registrar,, the terms and provisions upon which this Note may
be discharged at or prior to its maturity, and deemed to be no longer Outstanding thereunder,
and for other terms and provisions contained therein. Capitalized terms used herein have the
meanings assigned in the Ordinance.
This Note, 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
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agent. When a transfer on the Security Register occurs, one or more new fully registered Notes
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 Note as the
owner entitled to payment of principal hereof at its Stated Maturity or redemption, 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 Notes 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 Notes 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 Notes 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 Notes by the levy of a tax as
aforestated. In case any provision in this Note 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 Note and the Ordinance shall be construed
in accordance with and shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the City Council of the City has caused this Note to be duly
executed under the official seal of the City.
CITY OF HUNTSVILLE, TEXAS
COUNTERSIGNED: Mayor
City Secretary
(SEAL)
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C. *Form of Registration Certificate of Comptroller
of Public Accounts to appear on Initial Note(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
REGISTER NO.
THE STATE OF TEXAS
I HEREBY CERTIFY that this Note 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.
(SEAL)
WITNESS my signature and seal of office this
Comptroller of Public Accounts
of the State of Texas
D. Form of Certificate of Paving Agent/Registrar to
appear on Definitive Notes only.
REGISTRATION CERTIFICATE OF PAYING AGENT /REGISTRAR
This Note has been duly issued and registered under the provisions of the
within - mentioned Ordinance; the note or notes 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 offices of the Paying Agent/Registrar in New York, New York, is the Designated
Payment/Transfer Office for this Note.
Registration date:
U. S. TRUST COMPANY OF TEXAS, N.A.,
as Paying Agent/Registrar
By
Authorized Signature
*NOTE TO PRINTER: Do Not Print on Definitive Notes
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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 Note and all rights thereunder, and
hereby irrevocably constitutes and appoints ........... ............................. ...............................
attorney to transfer the within Note 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
Note in every particular.
F. The Initial Note(s) shall be in the form set forth in paragraph B of this Section,
except that the form of the single fully registered Initial Note shall be modified as follows:
(i) immediately under the name of the note 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 Huntsville (hereinafter referred to as the "City "), a body corporate and
municipal corporation in the County of Walker, 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 Note Date at the per annum rates of interest
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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,
1999. Principal installments of this Note are payable in the year of maturity to the registered
owner hereof by U. S. Trust Company of Texas, N.A. (the "Paying Agent/Registrar"), upon
presentation and surrender, at its offices in New York, New York (the "Designated
Payment/Transfer Office "). Interest is payable to the registered owner of this Note 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 registeFed owner. All payments of principal
of, premium, if any, and interest on this Note 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: Levy of Taxes. To provide for the payment of the "Debt Service
Requirements" of the Notes, being (i) the interest on the Notes and (ii) a sinking fund for their
redemption at maturity or a sinking fund of 2% (whichever amount is the greater), there is hereby
levied, and there shall be annually assessed and collected in due time, form, and manner, a tax
on all taxable property in the City, within the limitations prescribed by law, and such tax hereby
levied on each one hundred dollars' valuation of taxable property in the City for the Debt Service
Requirements of the Notes shall be at a rate from year to year as will be ample and sufficient to
provide funds each year to pay the principal of and interest on said Notes while Outstanding; full
allowance being made for delinquencies and costs of collection; separate books and records
relating to the receipt and disbursement of taxes levied, assessed and collected for and on
account of the Notes shall be kept and maintained by the City at all times while the Notes are
Outstanding, and the taxes collected for the payment of the Debt Service Requirements on the
Notes shall be deposited to the credit of a "Special 1998 Note Account" (the "Interest and Sinking
Fund ") maintained on the records of the City and deposited in a special fund maintained at an
official depository of the City's funds; and such tax hereby levied, and to be assessed and
collected annually, is hereby pledged to the payment of the Notes.
Proper officers of the City are hereby authorized and directed to cause to be transferred
to the Paying Agent/Registrar for the Notes, from funds on deposit in the Interest and Sinking
Fund, amounts sufficient to fully pay and discharge promptly each installment of interest and
principal of the Notes as the same accrues or matures; such transfers of funds to be made in
such manner as will cause collected funds to be deposited with the Paying Agent/Registrar on
or before each principal and interest payment date for the Notes.
PROVIDED, HOWEVER, in regard to the payments to become due on the Notes on
Febraury 15, 1999 and August 15, 1999, sufficient current funds, including earnings to be
realized from the investment of the proceeds of sale of the Notes pending their expenditure for
authorized purposes, will be available and are hereby appropriated to pay such payments; and
proper officials of the City are hereby authorized and directed to transfer and deposit in the
Interest and Sinking Fund such current funds (including earnings realized from the investment
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of the proceeds of sale of the Notes) which will be sufficient to fully pay the amounts due on the
Notes on February 15, 1999 and August 15, 1999.
SECTION 11: Mutilated - Destroyed -Lost and Stolen Notes. In case any Note shall be
mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may execute and deliver a
replacement Note of like form and tenor, and in the same denomination and bearing a number
not contemporaneously outstanding, in exchange and substitution for such mutilated Note, or
in lieu of and in substitution for such destroyed, lost or stolen Note, 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 Note, 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 Note shall be borne by the Holder of the Note mutilated,
or destroyed, lost or stolen.
Every replacement Note 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 Notes; notwithstanding the enforceability of payment by anyone of the
destroyed, lost, or stolen Notes.
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 Notes.
SECTION 12: Satisfaction of Oblication 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 Notes, at the times and in the manner stipulated in this Ordinance, then the pledge of taxes
levied under this Ordinance and all covenants, agreements, and other obligations of the City to
the Holders shall thereupon cease, terminate, and be discharged and satisfied.
Notes 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 Notes or the principal amount(s) thereof at maturity, together with all interest due
thereon, shall have been irrevocably deposited with and held in trust by the Paying
Agent/Registrar, or an authorized escrow agent, or (ii) Government Securities shall have been
irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow agent,
which Government Securities have been certified by an independent accounting firm to mature
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 Notes, or the principal amount(s) thereof,
on and prior to the Stated Maturity thereof. The City covenants that no deposit of moneys or
Government Securities will be made under this Section and no use made of any such deposit
which would cause the Notes to be treated as "arbitrage bonds" within the meaning of
Section 103(c) of the Internal Revenue Code of 1954, as amended, or regulations adopted
pursuant thereto.
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Any moneys so deposited with the Paying Agent/Registrar, or an authorized escrow
agent, and all income from Government Securities held in trust by the Paying Agent/Registrar,
or an authorized escrow agent, pursuant to this Section which is not required for the payment
of the Notes, 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 Notes and remaining unclaimed for a period of four (4) years after
the Stated Maturity of the Notes such moneys were deposited and are held in trust to pay shall
upon the request of the City be remitted to the City against a written receipt therefor.
Notwithstanding the above and foregoing, any remittance of funds from the Paying
Agent/Registrar to the City shall be subject to any applicable unclaimed property laws of the
State of Texas.
The term "Government Securities ", as used herein, means direct obligations of, or
obligations the principal of and interest on which are unconditionally guaranteed by, the United
States of America, which are non - callable prior to the respective Stated Maturities of the Notes
and may be United States Treasury Obligations such as the State and Local Government Series
and may be in book -entry form.
SECTION 13: Ordinance a Contract- Amendments- Outstanding Notes. This Ordinance
shall constitute a contract with the Holders from time to time, be binding on the City, and shall
not be amended or repealed by the City so long as any Note remains Outstanding except as
permitted in this Section. The City may, without the consent of or notice to any Holders, from
time to time and at any time, amend this Ordinance in any manner not detrimental to the interests
of the Holders, including the curing of any ambiguity, inconsistency, or formal defect or omission
herein. In addition, the City may, with the consent of Holders holding a majority in aggregate
principal amount of the Notes 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 Notes, 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 Notes, reduce the principal
amount thereof, or the rate of interest thereon, or in any other way modify the terms of payment
of the principal of, premium, if any, or interest on the Notes, (2) give any preference to any Note
over any other Note, or (3) reduce the aggregate principal amount of Notes required to be held
by Holders for consent to any such amendment, addition, or rescission.
The term "Outstanding" when used in this Ordinance with respect to Notes means, as of
the date of determination, all Notes theretofore issued and delivered under this Ordinance,
except:
(1) those Notes cancelled by the Paying Agent/Registrar or delivered to
the Paying Agent/Registrar for cancellation;
(2) those Notes deemed to be duly paid by the City in accordance with
the provisions of Section 12 hereof; and
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(3) those mutilated, destroyed, lost, or stolen Notes which have been
replaced with Notes registered and delivered in lieu thereof as provided in
Section 11 hereof.
SECTION 14: Covenants to Maintain Tax - Exempt Status. (a) Definitions. When used
in this Section 14, the following terms have the following meanings:
"Closing Date" means the date on which the Notes 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 Notes.
"Investment" has the meaning set forth in Section 1.148 -1(b) of the
Regulations.
"Nonpurpose Investment" means any investment property, as defined in
section 148(b) of the Code, in which Gross Proceeds of the Notes are invested
and which is not acquired to carry out the governmental purposes of the Notes.
"Rebate Amount" has the meaning set forth in Section 1.148 -1(b) of the
Regulations.
"Regulations" means any proposed, temporary, or final Income Tax
Regulations issued pursuant to Sections 103 and 141 through 150 of the Code,
and 103 of the Internal Revenue Code of 1954, which are applicable to the Notes.
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 Notes 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 Note to
become includable in the gross income, as defined in section 61 of the Code, of the owner
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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 Note, 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 Notes:
(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 Notes, and not use or permit the use of such
Gross Proceeds (including all contractual arrangements with terms different than
those applicable to the general public) or any property acquired, constructed or
improved with such Gross Proceeds in any activity carried on by any person or
entity (including the United States or any agency, department and instrumentality
thereof) other than a state or local government, unless such use is solely as a
member of the general public; and
(2) not directly or indirectly impose or accept any charge or other
payment by any person or entity who is treated as using Gross Proceeds of the
Notes or any property the acquisition, construction or improvement of which is to
be financed or refinanced directly or indirectly with such Gross Proceeds, other
than taxes of general application within the City or interest earned on investments
acquired with such Gross Proceeds pending application for their intended
purposes.
(d) No Private Loan. Except to the extent permitted by section 141 of the Code and
the Regulations and rulings thereunder, the City shall not use Gross Proceeds of the Notes 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 Notes 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 Notes.
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(f) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of
the Code and the Regulations and rulings thereunder, the City shall not take or omit to take any
action which would cause the Notes to be federally guaranteed within the meaning of section
149(b) of the Code and the Regulations and rulings thereunder.
(g) Information Report. The City shall timely file the information required by section
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) No Rebate Required. The City warrants and represents that it satisfies the
requirements of paragraph (2) and (3) of section 148(f) of the Code with respect to the Notes
without making the payments for the United States described in such section. Specifically, the
City warrants and represents that
(1) the City is a governmental unit with general taxing powers;
(2) at least 95% of the net proceeds of the Notes will be used for the
local governmental activities of the City;
(3) the aggregate face amount of all tax- exempt obligations issued or
expected to be issued by the City (and all subordinate entities thereof) in the
calendar year in which the Notes are issued is not reasonably expected to exceed
$5,000,000.
PROVIDED, HOWEVER, should additional tax exempt obligations be issued or incurred,
including lease purchase financings, in the 1998 calendar year which would cause the total face
amount of tax exempt obligations issued and incurred in such calendar year to exceed
$5,000,000, the City agrees and covenants that it will maintain complete records regarding the
investments of the proceeds of sale of the Notes and rebate any "arbitrage profits" to the United
States as required by Section 148(f) of the Code.
(i) Elections. The City hereby directs and authorizes the Mayor, City Manager,
Director of Finance and City Secretary, individually or jointly, to make elections permitted or
required pursuant to the provisions of the Code or the Regulations, as they deem necessary or
appropriate in connection with the Notes, in the Certificate as to Tax Exemption or similar or
other appropriate certificate, form or document.
SECTION 15: Sale of the Notes. Pursuant to a public sale for the Notes, the bid
submitted by (herein referred to as the "Purchasers ")
is declared to be the best bid received producing the lowest net effective interest cost to the City,
and the sale of the Notes to said Purchasers at the price of par and accrued interest to the date
of delivery, plus a premium of $ , is hereby approved and confirmed. Delivery of the
Notes to the Purchasers shall occur as soon as possible upon payment being made therefor in
accordance with the terms of sale.
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SECTION 16: Qualified 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 Notes
to be "qualified tax exempt obligations" in that the Notes are not "private activity bonds" as
defined in the Code and the reasonably anticipated amount of "qualified tax exempt obligations"
to be issued by the City (including all subordinate entities of the City) for the calendar year 1998
will not exceed $10,000,000.
SECTION 17: Official Statement. The Official Statement, together with all amendments
and supplements thereto issued on behalf of the City, prepared in the initial offering and sale of
the Notes by the City is hereby approved as to form and content and the City Council hereby
finds that the information and data contained in said Official Statement pertaining to the City and
its financial affairs is true and correct in all material respects and no material facts have been
omitted therefrom which are necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The use of such Official Statement
in the reoffering of the Notes by the Purchasers is hereby approved and authorized.
SECTION 18: Control and Custody of Notes. 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 Notes, and shall take and have charge and control of the Initial Note(s) pending the
approval thereof by the Attorney General, the registration thereof by the Comptroller of Public
Accounts and the delivery thereof to the initial purchasers.
Furthermore, the Mayor, City Secretary, City Manager and Director of Finance, any one
or more of said officials, are hereby authorized and directed to furnish and execute such
documents and certifications relating to the City and the issuance of the Notes, including
certifications as to facts, estimates, circumstances and reasonable expectations pertaining to the
use, expenditure, and investment of the proceeds of the Notes, as may be necessary for the
approval of the Attorney General, the registration by the Comptroller of Public Accounts and the
delivery of the Notes 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 Note(s) to the purchasers and the initial exchange thereof for definitive Notes.
SECTION 19: Proceeds of Sale. The proceeds of sale of the Notes, excluding the
accrued interest and premium, if any, received from the purchasers, shall be deposited in a
construction fund maintained at the City's depository bank. Pending expenditure for authorized
projects and purposes, such proceeds of sale may be invested in authorized investments and
any investment earnings realized shall be expended for such authorized projects and purposes
or deposited in the Interest and Sinking Fund as shall be determined by the City Council.
Accrued interest and premium, if any, received from the sale of the Notes and any excess note
proceeds, including investment earnings, remaining after completion of all authorized projects
or purposes shall be deposited to the credit of the Interest and Sinking Fund.
SECTION 20: Notices to Holders- Waiver. Wherever this Ordinance provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and sent by United States Mail, first class postage prepaid, to the address
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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 Notes. Where this Ordinance provides for
notice in any manner, such notice may be waived in writing by the Holder entitled to receive
such notice, either before or after the event with respect to which such notice is given, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 21: Cancellation. All Notes surrendered for payment, 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
deliverto the Paying Agent/Registrar for cancellation any Notes previously certified or registered
and delivered which the City may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly cancelled by the Paying Agent/Registrar. All cancelled Notes held
by the Paying Agent/Registrar shall be returned to the City.
SECTION 22: Leaal Opinion. The obligation of the Purchasers to accept delivery of the
Notes is subject to being furnished a final opinion of Fulbright & Jaworski L.L.P., Attorneys,
Dallas, Texas, approving such Notes as to their validity, said opinion to be dated and delivered
as of the date of delivery and payment for such Notes. 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 forthe implementation
and use of the Book Entry Only System used in the settlement and transfer of the Notes.
SECTION 23: CUSIP Numbers. CUSIP numbers may be printed or typed on the
definitive Notes. It is expressly provided, however, that the presence or absence of CUSIP
numbers on the definitive Notes shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Notes as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Notes.
SECTION 24: Benefits of Ordinance. Nothing in this Ordinance, expressed or implied,
is intended or shall be construed to confer upon any person other than the City, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by
reason of this Ordinance or any provision hereof, this Ordinance and all its provisions being
intended to be and being for the sole and exclusive benefit of the City, the Paying
Agent/Registrar and the Holders.
SECTION 25: Inconsistent Provisions. All ordinances, orders or resolutions, or parts
thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain
controlling as to the matters contained herein.
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SECTION 26: Govemina Law. This Ordinance shall be construed and enforced in
accordance with the laws of the State of Texas and the United States of America.
SECTION 27: Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
SECTION 28: Construction of Terms. If appropriate in the context of this Ordinance,
words of the singular number shall be considered to include the plural, words of the plural
number shall be considered to include the singular, and words of the masculine, feminine or
neuter gender shall be considered to include the other genders.
SECTION 29: Severability. If any provision of this Ordinance or the application thereof
to any circumstance shall be held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be valid, and the City Council
hereby declares that this Ordinance would have been enacted without such invalid provision.
SECTION 30: Public Meeting. It is officially found, determined, and declared that the
meeting at which this Ordinance is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered at such meeting, including this
Ordinance, was given, all as required by V.T.C.A., Government Code, Chapter 551.
SECTION 31: Effective Date. This Ordinance shall take effect and be in force
immediately from and after its adoption, and it is so ordained.
PASSED AND ADOPTED, this September 22, 1998.
ATTEST:
City Secretary
(City Seal)
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CITY OF HUNTSVILLE, / EERAS
Mayor
APPROVED:
City Attorney
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EXRTRIT A
PAYING AGENT /REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of September 22, 1998 (this "Agreement'), by and
between the City of Huntsville, Texas (the "Issuer"), and U. S. Trust Company of Texas, N.A.,
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 issuance of its "City of
Huntsville, Texas, Tax Notes, Series 1998" (the "Notes ") in the aggregate principal amount of
$845,000, such Notes to be issued in fully registered form only as to the payment of principal
and interest thereon; and
WHEREAS, the Notes are scheduled to be delivered to the initial purchasers on or about
October 26, 1998; 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 Notes 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
Notes;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01. Aaaointment. The Issuer hereby appoints the Bank to serve as
Paying Agent with respect to the Notes, and, as Paying Agent for the Notes, the Bank shall be
responsible for paying on behalf of the Issuer the principal, premium (if any), and interest on the
Notes as the same become due and payable to the registered owners thereof; all in accordance
with this Agreement and the "Note Resolution" (hereinafter defined). The Issuer hereby
appoints the Bank as Registrar with respect to the Notes and, as Registrar for the Notes, the
Bank shall keep and maintain for and on behalf of the Issuer books and records as to the
ownership of said Notes and with respect to the transfer and exchange thereof as provided
herein and in the "Note Resolution ".
The Bank hereby accepts its appointment, and agrees to serve as the Paying Agent and
Registrar for the Notes.
727523.1
Section 1.02. Compensation. As compensation for the Bank's services as Paying
Agent/Registrar, the Issuer hereby agrees to pay the Bank the fees and amounts set forth in
Annex A attached hereto for the first year of this Agreement and thereafter the fees and amounts
set forth in the Bank's current fee schedule then in effect for services as Paying Agent/Registrar
for municipalities, which shall be supplied to the Issuer on or before 90 days prior to the close
of the Fiscal Year of the Issuer, and shall be effective upon the first day of the following Fiscal
Year.
In addition, the Issuer agrees to reimburse the Bank upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Bank in accordance with any
of the provisions hereof (including the reasonable compensation and the expenses and
disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
"Acceleration Date" on any Note means the date on and after which the principal
or any or all installments of interest, or both, are due and payable on any Note which has
become accelerated pursuant to the terms of the Note.
"Bank Office" means the offices of the Bank located in New York, New York at the
address appearing in Section 3.01 hereof. The Bank will notify the Issuer in writing of
any change in location of the Bank Office.
"Fiscal Year" means the fiscal year of the Issuer, ending September 30th.
"Holder" and "Note Holder" each means the Person in whose name a -Note is
registered in the Note 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 and Director of
Finance, 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 orgovemmentorany
agency or political subdivision of a government.
"Predecessor Notes" of any particular Note means every previous Note
evidencing all or a portion of the same obligation as that evidenced by such particular
Note (and, for the purposes of this definition, any mutilated, lost, destroyed, or stolen
727523.1 - 2 -
,1:1111
Note for which a replacement Note has been registered and delivered in lieu thereof
pursuant to Section 4.06 hereof and the Resolution).
"Note Resolution" means the resolution, order, or ordinance of the governing body
of the Issuer pursuant to which the Notes are issued, certified by the Secretary or any
other officer of the Issuer and delivered to the Bank.
"Note Register" means a register maintained by the Bank on behalf of the Issuer
providing for the registration and transfers of Notes.
"Redemption Date" when used with respect to any Note to be redeemed means
the date fixed for such redemption pursuant to the terms of the Note 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.
"Stated Maturity" means the date specified in the Note Resolution the principal of
a Note is scheduled to be due and payable.
Section 2.02. Other Definitions. The terms "Bank," "Issuer," and "Notes (Note)" 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 Payinc Agent. As Paying Agent, the Bank shall, provided
adequate collected funds have been provided to it for such purpose by or on behalf of the Issuer,
pay on behalf of the Issuer the principal of each Note at its Stated Maturity, Redemption Date,
or Acceleration Date, to the Holder upon surrender of the Note to the Bank at the following
offices:
By Hand:
U. S. Trust Company
of Texas, N.A.
111 Broadway, Lower Level
Lower Level
New York, New York 10006 -1906
By Mail:
U. S. Trust Company
of Texas, N.A.
P. O. Box 841
Cooper Station
New York, New York 10276
727523.1 - 3 -
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 Note when due, by computing the amount of interest to be paid each Holder and making
payment thereof to the Holders of the Notes (or their Predecessor Notes) on the Record Date.
All payments of principal and /or interest on the Notes to the registered owners shall be
accomplished (1) by the issuance of checks, payable to the registered owners, drawn on the
fiduciary account provided in Section 5.05 hereof, sent by United States mail, first class, postage
prepaid, to the address appearing on the Note Register or (2) by such other method, acceptable
to the Bank, requested in writing by the Holder at the Holders risk and expense.
Section 3.02. Payment Dates. The Issuer hereby instructs the Bank to pay the principal
of and interest on the Notes at the dates specified in the Note Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01. Note 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 "Note Register') for recording the names and addresses of the Holders of the
Notes, the transfer, exchange and replacement of the Notes and the payment of the principal
of and interest on the Notes 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 Note Register. The Bank represents and warrants its office in Dallas, Texas will at all times
have immediate access to the Note Register by electronic or other means and will be capable
at all times of producing a hard copy of the Note Register at its Dallas office for use by the
Issuer. All transfers, exchanges and replacement of Notes shall be noted in the Note Register.
Every Note 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 Notes
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 Notes.
To the extent possible and under reasonable circumstances, the Bank agrees that, in
relation to an exchange or transfer of Notes, the exchange or transfer by the Holders thereof will
be completed and new Notes delivered to the Holder or the assignee of the Holder in not more
than three (3) business days after the receipt of the Notes 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.
727523.1 - 4 -
Section 4.02. Certificates. The Issuer shall provide an adequate inventory of printed
Notes to facilitate transfers or exchanges thereof. The Bank covenants that the inventory of
printed Notes will be kept in safekeeping pending their use and reasonable care will be exercised
by the Bank in maintaining such Notes in safekeeping, which shall be not less than the care
maintained by the Bank for debt securities of other governments or corporations for which it
serves as registrar, or that is maintained for its own securities.
Section 4.03. Form of Note Resister. The Bank, as Registrar, will maintain the Note
Register relating to the registration, payment, transfer and exchange of the Notes 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 Note Register in any form other than those which the Bank has
currently available and currently utilizes at the time.
The Note 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 Note 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 Note Register. The Issuer may also inspect the information contained in the Note 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 Note 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 Note 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 Note Register.
Section 4.05. Return of Cancelled Certificates. The Bank will, at such reasonable
intervals as it determines, surrender to the Issuer, Notes in lieu of which or in exchange for which
other Notes have been issued, or which have been paid.
Section 4.06. Mutilated, Destroyed. Lost or Stolen Securities. The Issuer hereby
instructs the Bank, subject to the provisions of Section 11 of the Note Resolution, to deliver and
issue Notes in exchange for or in lieu of mutilated, destroyed, lost, or stolen Notes as long as the
same does not result in an overissuance.
In case any Note shall be mutilated, or destroyed, lost or stolen, the Bank may execute
and deliver a replacement Note of like form and tenor, and in the same denomination and
bearing a number not contemporaneously outstanding, in exchange and substitution for such
mutilated Note, or in lieu of and in substitution for such destroyed lost or stolen Note, 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 Note, 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
727523.1 - 5 -
,EXHIBIT A
such indemnity and with the preparation, execution and delivery of a replacement Note shall be
borne by the Holder of the Note 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 Notes it
has paid pursuant to Section 3.01, Notes it has delivered upon the transfer or exchange of any
Notes pursuant to Section 4.01, and Notes it has delivered in exchange for or in lieu of mutilated,
destroyed, lost, or stolen Notes 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 not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Bank was negligent in ascertaining the
pertinent facts.
(c) No provisions of this Agreement shall require the Bank to expend or risk its own
funds or otherwise incur any financial liability for performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity satisfactory to it against such risks or liability is
not assured to it.
(d) The Bank may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note, security, or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties. Without limiting the generality
of the foregoing statement, the Bank need not examine the ownership of any Notes, but is
protected in acting upon receipt of Notes 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.
727523.1 - 6 -
EMIT A
Section 5.03. Recitals of Issuer. The recitals contained herein with respect to the Issuer
and in the Notes 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 Note, or
any other Person for any amount due on any Note from its own funds.
Section 5.04. May Hold Notes. The Bank, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Issuer with the same
rights it would have if it were not the Paying Agent/Registrar, or any other agent.
Section 5.05. Moneys Held by Bank - Fiduciary Account/Collateralization. A fiduciary
account shall at all times be kept and maintained by the Bank for the receipt, safekeeping and
disbursement of moneys received from the Issuer hereunder for the payment of the Notes, and
money deposited to the credit of such account until paid to the Holders of the Notes 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 Notes 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
Note and remaining unclaimed for four years after final maturity of the Note has become due and
payable will be paid by the Bank to the Issuer, and the Holder of such Note 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. Interoleader. The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over its person as well as funds on
deposit, in either a Federal or State District Court located in the State and County where either
the Bank Office or the administrative offices of the Issuer is located, and agree that service of
process by certified or registered mail, return receipt requested, to the address referred to in
Section 6.03 of this Agreement shall constitute adequate service. The Issuer and the Bank
further agree that the Bank has the right to file a Bill of Interpleader in any court of competent
jurisdiction to determine the rights of any Person claiming any interest herein.
727523.1 - 7 -
Section 5.08. DT Services. It is hereby represented and warranted that, in the event the
Notes 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. Assi nc ment. 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 9.
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 Assions. All covenants and agreements herein by the
Issuer shall bind its successors and assigns, whether so expressed or not.
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 Note 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 Note Resolution, the
Note Resolution shall govern.
Section 6.09. Counteroarts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall constitute one and
the same Agreement.
Section 6.10. Termination. This Agreement will terminate (i) on the date of final
payment of the principal of and interest on the Notes to the Holders thereof or (ii) may be earlier
727523.1 -
",1:111. 1
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 Notes 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 otherMse adversely
affect the payment of the Notes.
Upon an early termination of this Agreement, the Bank agrees to promptly transfer and
deliver the Note Register (or a copy thereof), together with other pertinent books and records
relating to the Notes, to the successor Paying Agent/Registrar designated and appointed by the
Issuer.
The provisions of Section 1.02 and of Article Five shall survive and remain in full force
and effect following the termination of this Agreement.
Section 6.11. Govemino 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.
[SEAL]
Attest:
Title:
(CITY SEAL)
Attest:
City Secretary
U. S. TRUST COMPANY OF TEXAS, N.A.,
Dallas, Texas
BY
Title:
Address: 2001 Ross Avenue, 27th Floor
Dallas, Texas 75201 -4222
CITY OF HUNTSVILLE, TEXAS
BY
Mayor
Address: 1212 Avenue M
Huntsville, Texas 77340
727523.1 - 9 -