ORD 1995-03 - Issue Tax Anticipated Notes - $1.42M 01-24-1995ORDINANCE NO. 95 -03
AN ORDINANCE authorizing the issuance of "CITY OF
HUNTSVILLE, TEXAS, TAX NOTES, SERIES 1995 ";
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 and (ii) for the purchase of materials, supplies, equipment,
machinery, buildings, lands and rights -of -way for the City's
authorized needs and purposes; 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 (i) improving,
renovating, repairing and equipping municipal facilities, (ii)
making improvements and extensions to City's combined Waterworks
and Sewer System and (iii) professional services rendered in
relation to such projects 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 $1,420,000, to be
designated and bear the title "CITY OF HUNTSVILLE, TEXAS, TAX
NOTES, SERIES 1995" (hereinafter referred to as the "Notes "), for
the purpose of paying contractual obligations to be incurred for
(i) improving, renovating, repairing and equipping municipal
facilities, (ii) making improvements and extensions to City's
combined Waterworks and Sewer System and (iii) 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.
0221659
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 January 15, 1995 (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 January 15
in each of the years and in principal amounts (the "Stated
Maturities ") in accordance with the following schedule:
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
January 15 and July 15 in each year, commencing July 15, 1995.
SECTION 3: Terms of Payment - Paying Agent /Registrar. The
principal of, premium, if any, and the interest on the Notes, due
and payable by reason of maturity 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. 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
0221659 -2-
Principal
Interest
Stated Maturity
Amount
Rate(s)
1996
$170,000
5.75 %
1997
180,000
5.85 %
1998
190,000
5.875%
1999
200,000
5.875%
2000
215,000
5.75 %
2001
225,000
5.50 %
2002
240,000
5.50 %
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
January 15 and July 15 in each year, commencing July 15, 1995.
SECTION 3: Terms of Payment - Paying Agent /Registrar. The
principal of, premium, if any, and the interest on the Notes, due
and payable by reason of maturity 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. 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
0221659 -2-
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, only upon presentation and
surrender of the Notes to the Paying Agent /Registrar at its
offices in New York, New York (the "Designated Payment /Transfer
Office "). 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.
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: Non - Redeemable. The Notes shall not be subject
to redemption prior to maturity at the option of the City.
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
0221659 -3-
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 or transferees, 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
0221659 -4-
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.
SECTION 6: Book -Entry Only Transfers and Transactions.
Notwithstanding the provisions contained in Sections 3 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 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
0221659 -5-
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 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 $1,420,000 with principal
installments to become due and payable as provided in Section 2
hereof and numbered T -1, or (ii) as seven (7) 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 Notes) ")
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
0221659 -6-
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.
B. Form of Definitive Note.
REGISTERED
NO.
Note Date:
January 15, 1995
Registered Owner:
Principal Amount:
REGISTERED
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF HUNTSVILLE, TEXAS
TAX NOTE, SERIES 1995
Interest Rate: Stated Maturity: CUSIP NO:
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, without right of 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
0221659 -7-
being payable on January 15 and July 15 in each year, commencing
July 15, 1995. Principal of this Note is, payable at its Stated
Maturity 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 $1,420,000 (herein referred
to as the "Notes ") for the purpose of paying contractual
obligations to be incurred for (i) improving, renovating,
repairing and equipping municipal facilities, (ii) making
improvements and extensions to City's combined Waterworks and
Sewer System and (iii) professional services rendered in relation
to such projects 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 ").
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.
0221659 -8-
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
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, 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
0221659 -9-
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.
COUNTERSIGNED:
City Secretary
(SEAL)
CITY OF HUNTSVILLE, TEXAS
Mayor
• _.. .s -
wc
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
THE STATE OF TEXAS
{
{
( REGISTER NO.
(
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.
WITNESS my signature and seal of office this
Comptroller of Public Accounts
of the State of Texas
(SEAL)
0221659 —10
D. Form of Certificate of Paying 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
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:
0221659 -11-
(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 January 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).
(without right of prepayment prior to maturity) and to pay
interest on the unpaid Principal Amount hereof from the Note 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 January 15 and July 15 in each year, commencing
July 15, 1995. 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 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.
0221659 -12-
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 1995 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 payment to become due on
the Notes on July 15, 1995, 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 of the proceeds of sale of the Notes) which
will be sufficient to fully pay the amounts due on the Notes on
July 15, 1995.
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
0221659 -13-
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 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 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
0221659 -14-
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.
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
0221659 _15-
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
(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.
0221659 -16-
"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 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
0221659 -17-
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.
(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 Retort. 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 Recruited. 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
0221659 -18-
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 Gross 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
1995 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 First Southwest Company and
Stephens Inc., joint managers (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 $ -0 -, 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.
SECTION 16: 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 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
0221659 _19-
issued by the City (including all subordinate entities of the
City) for the calendar year 1995 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
0221659 -20-
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 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
deliver to 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: Legal Oginion. 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 for the 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,
0221659 -21-
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.
SECTION 26: 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 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.
0221659 -22-
SECTION 40: 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 January 24, 1995.
ATTE .T
ity Secretary
(City Seal)
CITY OF HUNTSVIL E, TEXAS
/,J,k,T Mayor
0221659 -23-
EXHIBIT A 1
PAYING AGENT /REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of January 24, 1995 (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
1995" (the "Notes ") in the aggregate principal amount of
$1,420,000, 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 February 21, 1995; 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. Appointment. 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 ".
0223739
The Bank hereby accepts its appointment, and agrees to serve
as the Paying Agent and Registrar for the Notes.
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.
0223739 - 2 -
EXHIBIT A
"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 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 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.
0223739 - 3 -
EXHIBIT A
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, 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.
65 Beaver Street
Lower Level
New York, New York 10005
By Mail:
U. S. Trust Company
of Texas, N.A.
P. O. Box 844
Cooper Station
New York, New York 10276
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 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 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
0223739 -4 -
A
-��;;,
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.
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 Register. 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.
0223739 -5-
EXHIBIT A
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 Securi-
ties. 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 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
0223739 -6-
EXHIO A I
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.
0223739 -7-
EXHIBIT A
EXHIBIT A
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(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 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/
Collateral ization. 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
0223739 -8-
EXHIBIT A
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 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 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. 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 11.
Section 6.04. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
0223739 -9 -
EXHIBIT A
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.
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. 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 Notes 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
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 otherwise 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.
0223739
-10-
EXHIBIT A 4
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.
U. S. TRUST COMPANY OF TEXAS, N.A.,
Dallas, Texas
BY _
Title:
[SEAL]
Attest:
Address: 500 North Akard
Title: Dallas, Texas 75201 -4222
(CITY SEAL)
Attest:
City Secretary
CITY OF HUNTSVILLE, TEXAS
BY
Mayor
Address: 1212 Avenue M
Huntsville, texas 77340
0223739 -11-
PAYING AGENT /REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of January 24, 1995 (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
1995" (the "Notes ") in the aggregate principal amount of
$1,420,000, 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 February 21, 1995; 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. Appointment. 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 ".
0223739
The Bank hereby accepts its appointment, and agrees to serve
as the Paying Agent and Registrar for the Notes.
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. Thd 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.
0223739 -2 -
"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 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 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.
0223739 -3 -
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, 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.
20 Exchange Place
Lower Level
New York, New York 10005
By Mail:
U. S. Trust Company
of Texas, .N.A.
P. O. Box 844
Cooper Station
New York, New York 10276
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 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 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
0223739 -4 -
transfers, exchanges and replacement of Securities shall be noted
in the Note Register. The Bank represents and warrants its of f ice
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.
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 Register. 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.
0223739 -5-
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 Securi-
ties. 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 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
0223739 -6-
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.
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(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 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/
Collateral ization. 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
0223739 -8 -
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 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 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 maybe 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 11.
Section 6.04. Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
0223739 -9 -
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.
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. 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 Notes 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
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 otherwise 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.
0223739 -10-
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.
[SEAL;
Attest:
Title: VICE PRESIDENT
(CITY SEAL)
Attest:
(Y
City Secretary
U. S. TRUST� COMPANY OF TEXAS, N.A.,
Dallas, T/exap,�
BY �wL'
Title: E PRESIDENT
Address: 500 North Akard
Dallas, Texas 75201 -4222
CITi_z
OF HUNTSVILLE, TE
BY "�
M ayor
Address: 1212 Avenue M
Huntsville, texas 77340
)4
0223739 -11-