TABLE OF CONTENTS
Recitals
ARTICLE I
DEFINITIONS AND OTHER PRELIMINARY MATTERS
Section
1.01. Definitions
Section 1.02. Other Definitions
Section 1.03. Findings
Section 1.04. Table of Contents, Titles and
Headings
Section 1.05. Interpretation
ARTICLE II
SECURITY FOR THE CERTIFICATES; APPROPRIATION
Section
2.01. Tax Levy for Payment of the Certificates
Section 2.02. Revenue Pledge
Section 2.03. Perfection of Security Interest
Section 2.04. Appropriation
ARTICLE III
AUTHORIZATION; GENERAL TERMS
AND PROVISIONS REGARDING THE CERTIFICATES
Section
3.01. Authorization
Section 3.02. Date, Denomination, Maturities,
Numbers and Interest
Section 3.03. Medium, Method and Place of Payment
Section 3.04. Execution and Initial Registration
Section 3.05. Ownership
Section 3.06. Registration, Transfer and Exchange
Section 3.07. Cancellation and Authentication
Section 3.08. Replacement Certificates
ARTICLE IV
REDEMPTION OF CERTIFICATES BEFORE MATURITY
Section 4.01. Limitation on Redemption
Section 4.02. Optional Redemption
Section 4.03. Partial Redemption
Section 4.04. Notice of Redemption to Owners
Section 4.05. Payment Upon Redemption
Section 4.06. Effect of Redemption
ARTICLE V
PAYING AGENT/REGISTRAR
Section 5.01. Appointment of Initial Paying
Agent/Registrar
Section 5.02. Qualifications
Section 5.03. Maintaining Paying Agent/Registrar
Section 5.04. Termination
Section 5.05. Notice of Change to Owners
Section 5.06. Agreement to Perform Duties and
Functions
Section 5.07. Delivery of Records to Successor
ARTICLE VI
FORM OF THE CERTIFICATES
Section
6.01. Form Generally
Section 6.02. Form of Certificates
Section 6.03. CUSIP Registration
Section 6.04. Legal Opinion
Section 6.05. Municipal Bond Insurance
ARTICLE VII
SALE OF THE CERTIFICATES; CONTROL
AND DELIVERY OF THE CERTIFICATES
Section
7.01. Sale of Certificates
Section 7.02. Control and Delivery of Certificates
ARTICLE VIII
CREATION OF FUNDS AND ACCOUNTS;
DEPOSIT OF PROCEEDS; INVESTMENTS
Section
8.01. Creation of Funds
Section 8.02. Interest and Sinking Fund
Section 8.03. Construction Fund
Section 8.04. Security of Funds
Section 8.05. Deposit of Proceeds
Section 8.06. Investments
Section 8.07. Investment Income
ARTICLE IX
PARTICULAR REPRESENTATIONS AND COVENANTS
Section
9.01. Payment of the Certificates
Section 9.02. Other Representations and Covenants
Section 9.03. Federal Tax Matters
ARTICLE X
DEFAULT AND REMEDIES
Section
10.01. Events of Default
Section 10.02. Remedies for Default
Section 10.03. Remedies Not Exclusive
ARTICLE XI
DISCHARGE AND DEFEASANCE
Section
11.01. Discharge and Defeasance by Payment
Section 11.02. Discharge and Defeasance by
Deposit
ARTICLE XII
AMENDMENTS; FURTHER PROCEDURES; AND SEVERABILITY
Section
12.01. Amendments
Section 13.03. Severability
EXECUTION
AN ORDINANCE OF
THE CITY COUNCIL OF THE CITY OF BASTROP, TEXAS, AUTHORIZING THE ISSUANCE
AND SALE OF CITY OF BASTROP, TEXAS, COMBINATION TAX AND REVENUE CERIIFICAI'ES
OF OBLIGATION, SERIES 2003; PROVIDING FOR THE SECURITY FOR AND PAYMENT'
OF SAID CERTIFICATES; PRESCRIBING THE FORM OF SAID CERTIFICATES; AWARDING
THE SALE THEREOF; APPROVING THE OFFICIAL STATEMENT; AND ENACTING OTHER
PROVISIONS RELATING TO THE SUBJECT
WHEREAS, the City Council (the "City, Council")
of the City of Bastrop, Texas (the "City"), by resolution
adopted on July 22, 2003, directed publication of notice of the City's
intention to issue a maximum principal amount not to exceed $3,025,000
certificates of obligation of the City for the purposes hereinafter
set forth;
WHEREAS,
such notice was published in the manner and to the extent required
by law;
WHEREAS,
there has not been filed with the City Secretary or any other officer
of the City a petition protesting the issuance of such certificates
of obligation and requesting an election on same: and
WHEREAS,
it is affirmatively found and determined that the City is authorized
to proceed with the issuance and sale of such certificates of obligation
as authorized by the Constitution and laws of the State of Texas,
including. particularly. Tex. Loc. Gov't Code Ann. ch. 271. subch.
C, and Tex. Govt Code ch. 1502;
WHEREAS,
it is officially found, determined and declared that the meeting at
which this Ordinance has been adopted was open to the public and public
notice of the date, hour, place and subject of said meeting, including
this Ordinance, was given, all as required by the applicable provisions
of Tex. Gov't Code Ann. ch. 551; Now, Therefore
BE IT ORDAINED
BY THE CITY COUNCIL OF THE CITY OF BASTROP:
ARTICLE I
DEFINITIONS AND
OTHER PRELIMINARY MATTERS
Section 1.01. Definitions.
Unless otherwise expressly
provided or unless the context clearly requires otherwise, in this
Ordinance the following terms shall have the meanings specified below:
"Certificate"
means any of the Certificates.
"Certificates"
means the City's certificates of obligation entitled "City of
Bastrop, Texas, Combination Tax and Revenue Certificates of Obligation,
Series 2003" authorized to be issued by Section 3.01 of this
Ordinance.
"Closing Date"
means the date of the initial delivery of and payment for the Certificates.
"Code" means the Internal Revenue Code of 1986, as amended,
including applicable regulations, published rulings and court decisions
relating thereto.
"Construction Fund"
means the construction fund established by Section 8.01(a) of this
Ordinance.
"Designated Payment/Transfer
Office" means (i) with respect to the initial Paying Agent/Registrar
named herein, its corporate trust off-ice in Irving, Texas, and (ii)
with respect to any successor Paying Agent/Registrar, the office of
such successor designated and located as may be agreed upon by the
City and such successor.
"Event of Default"
means any Event of Default as defined in Section 10.01 of this Ordinance.
"Initial Certificate" means the Certificate described in
Section 3.04(d) and 6.02(d).
"Interest and Sinking
Fund" means the interest and sinking fund established by Section
8.01 (a) of this Ordinance.
"Interest Payment
Date" means the date or dates upon which interest on the Certificates
is scheduled to be paid until the maturity or prior redemption of
the Certificates, such dates being February 1 and August I of each
year commencing August 1, 2005.
"Ordinance" means
this Ordinance.
"Original Issue Date"
means the date designated as the date of the Certificates in Section
3.02(a) of this Ordinance.
"Owner" means
the person who is the registered owner of a Certificate or Certificates,
as shown in the Register.
"Paying Agent/Registrar"
means TIB-The Independent BankersBank, any successor thereto or an
entity which is appointed as and assumes the duties of paying agent/registrar
as provided in this Ordinance.
"Purchaser" means
the person, firm or entity initially purchasing the Certificates from
the City and which is designated in Section 7.01 of this Ordinance.
"Record Date"
means the last business day of the month next preceding an Interest
Payment Date. "Register" means the Register specified in
Section 3.06(a) of this Ordinance.
"Special Payment Date"
means the new date established for payment of interest on the Certificates
in the event of a nonpayment of interest on a scheduled payment date,
and for 30 days thereafter, as described in Section 3.03(b).
"Special Record Date"
means the new record date established for payment of interest on the
Certificates in the event of a nonpayment of interest on a scheduled
payment date, and for 30 days thereafter, as described in Section
3.03(b).
"Surplus Revenues" means the revenues of the City's waterworks
and sewer system, not to exceed $1,000, available after deduction
of the reasonable expenses of said System and the payment of all debt
service, reserve and other requirements with respect to all of the
City's revenue bonds and other obligations, now outstanding or hereafter
issued, that are payable in whole or in part from a pledge of all
or part of the revenues of such system.
"Unclaimed Payments"
means money deposited with the Paying Agent/Registrar for the payment
of principal, redemption premium, if any, or interest on the Certificates
as the same become due and payable or money set aside for the payment
of Certificates duly called for redemption prior to maturity, and
remaining unclaimed for 90 days after the applicable payment or redemption
date.
Section
1.02. Other Definitions.
The terms "City Council"
and "City" shall have the meaning assigned in the preamble
to this Ordinance.
Section
1.03. Findings.
The declarations, determinations
and findings declared, made and found in the preamble to this Ordinance
are hereby adopted, restated and made a part of the operative provisions
hereof.
Section
1.04. Table of Contents, Titles and Headings.
The table of contents,
titles and headings of the Articles and Sections of this Ordinance
have been inserted for convenience of reference only and are not to
be considered a part hereof and shall not in any way modify or restrict
any of the terms or provisions hereof and shall never be considered
or given any effect in construing this Ordinance or any provision
hereof or in ascertaining intent, if any question of intent should
arise.
Section
1.05. Interpretation.
(a) Unless the context
requires otherwise, words of the masculine gender shall be construed
to include correlative words of the feminine and neuter genders and
vice versa, and words of the singular number shall be construed to
include correlative words of the plural number and vice versa.
(b) This Ordinance and
all the terms and provisions hereof shall be liberally construed to
effectuate the purposes set forth herein to sustain the validity of
this Ordinance.
(c) Unless expressly provided
otherwise, all references to article and section numbers herein shall
be to the article and section numbers of this Ordinance.
ARTICLE II
SECURITY FOR THE
CERTIFICATES; APPROPRIATION
Section 2.01. Tax Levy for Payment of
the Certificates.
(a) The City Council hereby
declares and covenants that it will provide and levy a tax legally
and fully sufficient for payment of the Certificates, it having been
determined that the existing and available taxing authority of the
City for such purpose is adequate to permit a legally sufficient tax
in consideration of all other outstanding obligations of the City.
(b) In order to provide
for the payment of the debt service requirements on the Certificates,
being (i) the interest on the Certificates and (ii) a sinking fund
for their payment at maturity or a sinking fund of two percent per
annum (whichever amount is the greater), there is hereby levied for
the current year and each succeeding year thereafter, while the Certificates
or interest thereon remain outstanding and unpaid, a tax within legal
limitations on each $100 valuation of taxable property in the City
that is sufficient to pay such debt service requirements, full allowance
being made for delinquencies and costs of collection.
(c) The tax levied by this
Section shall be assessed and collected each year and applied to the
payment of the debt service requirements on the Certificates, and
the tax shall not be diverted to any other purpose.
Section
2.02. Revenue Pledge.
The Certificates are additionally
secured by and shall be payable from a pledge of the Surplus Revenues.
Section
2.03. Perfection of Security Interest.
Chapter 1208, Texas Government
Code applies to the issuance of the Certificates and the pledge of
the taxes and revenues granted by the City under Sections 2.01 and
2.02 of this Ordinance, and such pledge, therefore, is valid, effective,
and perfected. If Texas law is amended at any time while the Certificates
are outstanding and unpaid such that the pledge of the taxes or revenues
granted by the City under Section 2.01 of this Ordinance is to be
subject to the filing requirements of Chapter 9, Texas Business and
Commerce Code, then in order to preserve to the registered owners
of the Certificates of the Certificates the perfection of the security
interest in said pledge, the City agrees to take such measures as
it determines are reasonable and necessary under Texas law to comply
with the applicable provisions of Chapter 9, Business and Commerce
Code and enable a filing to perfect the security interest in said
pledge to occur.
Section
2.04. Appropriation.
There is hereby appropriated
from funds of the City lawfully available for such purpose and on
hand a sum of money sufficient to pay the principal and interest to
become due and payable with respect to the Certificates on August
1, 2005.
ARTICLE III
AUTHORIZATION;
GENERAL TERMS
AND PROVISIONS REGARDING THE CERTIFICATES
Section
3.01. Authorization.
The City's certificates
of obligation to be designated "City of Bastrop, Texas, Combination
Tax and Revenue Certificates of Obligation, Series 2003," are
hereby authorized to be issued and delivered in accordance with the
Constitution and laws of the State of Texas in the aggregate principal
amount of $3,025,000 for the public purpose of paying contractual
obligations to be incurred for additions, improvements and extensions
to the City's combined waterworks and sewer system, acquiring right-of-way
and relocating utilities within the City for State Highway 71, and
renovating the City's existing main fire station.
Section
3.02. Date, Denomination, Maturities, Numbers and Interest.
(a) The Certificates shall
have the Original Issue Date of September 1, 2003, shall be in fully
registered form, without coupons, in the denomination of $5,000 or
any integral multiple thereof, and shall be numbered separately from
one upward, excepting the initial Certificate, which shall be numbered
T- 1, as hereinafter provided, or such other designation acceptable
to the City and the Paying Agent/Registrar.
(b) The Certificates shall
mature on August 1 in the years and in the principal amounts and interest
rates set forth below, interest on each Certificate accruing on the
basis of a 360-day year of twelve 30-day months from the Closing Date
or the most recent Interest Payment Date to which interest has been
paid or provided for at the per annum rates of interest, payable semiannually
on February 1 and August 1 of each year until the principal amount
shall have been paid or provision for such payment shall have been
made, commencing August 1, 2005 as follows:
| Year |
Principal
Amount |
Interest
Rate |
| 2006 |
$100,000 |
4.750% |
| 2007 |
$105,000 |
4.750% |
| 2008 |
$110,000 |
4.750% |
| 2009 |
$115,000 |
4.750% |
| 2010 |
$125,000 |
4.750% |
| 2011 |
$130,000 |
4.750% |
| 2012 |
$135,000 |
4.750% |
| 2013 |
$140,000 |
4.750% |
| 2014 |
$150,000 |
4.750% |
| 2015 |
$155,000 |
4.750% |
| 2016 |
$160,000 |
4.750% |
| 2017 |
$170,000 |
4.750% |
| 2018 |
$1,430,000 |
4.750% |
Section
3.03. Medium, Method and Place of Payment.
(a) The principal of, premium,
if any, and interest on the Certificates shall be paid in lawful money
of the United States of America as provided in this Section.
(b) Interest on the Certificates
shall be payable to the Owners whose names appear in the Register
at the close of business on the Record Date; provided, however, that
in the event of nonpayment of interest on a scheduled Interest Payment
Date, and for 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 (the
"Special Payment Date", which shall be at least 15 days
after the Special Record Date) shall be sent at least five business
days prior to the Special Record Date by United States mail, first
class postage prepaid, to the address of each Owner of a Certificate
appearing on the books of the Paying Agent/Registrar at the close
of business on the last business day next preceding the date of mailing
of such notice.
(c) Interest on the Certificates
shall be paid by check (dated as of the Interest Payment Date) and
sent by the Paying Agent/Registrar to the person entitled to such
payment by United States mail, first class postage prepaid, to the
address of such person as it appears in the Register or by such other
customary banking arrangements acceptable to the Paying Agent/Registrar
and the person to whom interest is to be paid; provided, however,
that such person shall bear all risk and expenses of such other customary
banking arrangements.
(d) The principal of each
Certificate shall be paid to the person in whose name such Certificate
is registered on the due date thereof (whether at the maturity date
or the date of prior redemption thereof) upon presentation and surrender
of such Certificate at the Designated Payment/Transfer Office.
(e) If a date for the payment
of the principal of or interest on the Certificates is Saturday, Sunday,
legal holiday, or a day on which banking institutions in the city
in which the Designated Payment/Transfer Office 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 a Saturday, Sunday,
legal holiday, or day on which such banking institutions are required
or 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.
(f) Subject to Title 6,
Texas Property Code, as amended, Unclaimed Payments remaining unclaimed
for three years after the applicable payment or redemption date shall
be paid by the Paying Agent/Registrar to the City, to be used for
any lawful purpose. Thereafter, neither the City, the Paying Agent/Registrar,
nor any other person shall be liable or responsible to any Owners
of such Certificates for any further payment of such unclaimed moneys
or on account of any such Certificates, subject to any applicable
escheat, abandoned property, or similar law.
Section
3.04. Execution and Initial Registration.
(a) The Certificates shall
be executed on behalf of the City by the Mayor and City Secretary
of the City, by their manual or facsimile signatures, and the official
seal of the City shall be impressed or placed in facsimile thereon.
Such facsimile signatures on the Certificates shall have the same
effect as if each of the Certificates had been signed manually and
in person by each of said officers, and such facsimile seal on
the Certificates shall have the same effect as if the official seal
of the City had been manually impressed upon each of the Certificates.
(b) In the event that any
officer of the City whose manual or facsimile signature appears on
the Certificates ceases to be such officer before the authentication
of such Certificates or before the delivery thereof, such manual or
facsimile signature nevertheless shall be valid and sufficient for
all purposes as if such officer had remained in such office.
(c) Except as provided
below, no Certificate shall be valid or obligatory for any purpose
or be entitled to any security or benefit of this Ordinance unless
and until there appears thereon the Certificate of Paying Agent/Registrar
substantially in the form provided in this Ordinance, duly authenticated
by manual execution by an officer or duly authorized representative
of the Paying Agent/Registrar. It shall not be required that the same
authorized representative of the Paying Agent/Registrar sign the Certificate
of Paying Agent/Registrar on all of the Certificates. In lieu of the
executed Certificate of Paying Agent/Registrar described above, the
Initial Certificate delivered on the Closing Date shall have attached
thereto the Comptroller's Registration Certificate substantially in
the form provided in this Ordinance, manually executed by the Comptroller
of Public Accounts of the State of Texas or by his duly authorized
agent, which certificate shall be evidence that the Initial Certificate
has been duly approved by the Attorney General of the State of Texas
and that it is a valid and binding obligation of the City, and has
been registered by the Comptroller of Public Accounts of the State
of Texas.
(d) Immediately prior
to the Closing, the Paying Agent/Registrar shall insert the Closing
Date at the place provided therefor in the Initial Certificate. On
the Closing Date, one Initial Certificate representing the entire
principal amount of the Certificates, payable in stated installments
to the Purchaser or its designee, such Initial Certificate to be executed
by manual or facsimile signature of the Mayor and City Secretary of
the City, approved by the Attorney General of the State of Texas,
and registered and manually signed by the Comptroller of Public Accounts
of the State of Texas, will be delivered to the Purchaser. Upon payment
for the Initial Certificate, if requested by the Purchaser, or thereafter
if requested by an Owner of the Initial Certificate, the Paying Agent/Registrar
shall cancel the Initial Certificate and deliver definitive Certificates
to the Purchaser or such Owner, in the aggregate principal amount
of all of the Certificates then outstanding and registered in the
name of such the Purchaser or such Owner. The Paying Agent/Registrar
shall insert the Closing Date in all Certificates delivered pursuant
to this Order.
Section
3.05. Ownership.
(a) The City, the Paying
Agent/Registrar and any other person may treat the person in whose
name any Certificate is registered as the absolute owner of such Certificate
for the purpose of making and receiving payment of the principal thereof
and premium, if any, thereon, for the further purpose of making and
receiving payment of the interest thereon (subject to the provisions
herein that interest is to be paid to the person in whose name the
Certificate is registered on the Record Date or Special Record Date,
as applicable), and for all other purposes, whether or not such Certificate
is overdue, and neither the City nor the Paying Agent/Registrar shall
be bound by any notice or knowledge to the contrary.
(b) AII payments made to
the person deemed to be the Owner of any Certificate in accordance
with this Section shall be valid and effectual and shall discharge
the liability of the City and the Paying Agent/Registrar upon such
Certificate to the extent of the sums paid.
Section 3.06. Registration, Transfer and Exchange.
(a) So long as any Certificates
remain outstanding, the City shall cause the Paying Agent/Registrar
to keep at the Designated Payment/Transfer Office a register (the
"Register") in which, subject to such reasonable regulations
as it may prescribe, the Paying Agent/Registrar shall provide for
the registration and transfer of Certificates in accordance with this
Ordinance.
(b) Registration of any
Certificate may be transferred in the Register only upon the presentation
and surrender thereof at the Designated Payment/Transfer Office for
transfer of registration and cancellation, together with proper written
instruments of assignment, in form and with guarantee of signatures
satisfactory to the Paying Agent/Registrar, evidencing assignment
of the Certificates, or any portion thereof in any integral multiple
of $5,000, to the assignee or assignees thereof, and the right of
such assignee or assignees thereof to have the Certificate or any
portion thereof registered in the name of such assignee or assignees.
No transfer of any Certificate shall be effective until entered in
the Register. Upon assignment and transfer of any Certificate or portion
thereof, a new Certificate or Certificates will be issued by the Paying
Agent/Registrar in conversion and exchange for such transferred and
assigned Certificate. To the extent possible the Paying Agent/Registrar
will issue such new Certificate or Certificates in not more than three
business days after receipt of the Certificate to be transferred in
proper form and with proper instructions directing such transfer.
(c) Any Certificate may
be converted and exchanged only upon the presentation and surrender
thereof at the Designated Payment/Transfer Office, together with a
written request therefor duly executed by the registered owner or
assignee or assignees thereof, or its or their duly authorized attorneys
or representatives, with guarantees of signatures satisfactory to
the Paying Agent/Registrar, for a Certificate or Certificates of the
same maturity and interest rate and in any authorized denomination
and in an aggregate principal amount equal to the unpaid principal
amount of the Certificate presented for exchange. If a portion of
any Certificate is redeemed prior to its scheduled maturity as provided
herein, a substitute Certificate or Certificates having the same maturity
date, bearing interest at the same rate, in the denomination or denominations
of any integral multiple of $5,000 at the request of the registered
owner, and in an aggregate principal amount equal to the unredeemed
portion thereof, will be issued to the registered owner upon surrender
thereof for cancellation. To the extent possible, anew Certificate
or Certificates shall be delivered by the Paying Agent/Registrar to
the Owner of the Certificate or Certificates in not more than three
business days after receipt of the Certificate to be exchanged in
proper form and with proper instructions directing such exchange.
(d) Each Certificate issued
in exchange for any Certificate or portion thereof assigned, transferred
or converted shall have the same principal maturity date and bear
interest at the same rate as the Certificate for which it is being
exchanged. Each substitute Certificate shall bear a letter and/or
number to distinguish it from each other Certificate. The Paying Agent/Registrar
shall convert and exchange the Certificates as provided herein, and
each substitute Certificate delivered in accordance with this Section
shall constitute an original contractual obligation of the City and
shall be entitled to the benefits and security of this Ordinance to
the same extent as the Certificate or Certificates in lieu of which
such substitute Certificate is delivered.
(e) The City will pay the
Paying Agent/Registrar's reasonable and customary charge for the initial
registration or any subsequent transfer, exchange or conversion of
Certificates, but the Paying Agent/Registrar will require the Owner
to pay a sum sufficient to cover any tax or other governmental charge
that is authorized to be imposed in connection with the registration,
transfer, exchange or conversion of a
Certificate. In addition, the City hereby covenants with the Owners
of the Certificates that it will (1) pay the reasonable and standard
or customary fees and charges of the Paying Agent/Registrar for its
services with respect to the payment of the principal of and interest
on the Certificates, when due, and (ii) pay the fees and charges of
the Paying Agent/Registrar for services with respect to the transfer,
registration, conversion and exchange of Certificates as provided
herein.
(f) Neither the City nor
the Paying Agent/Registrar shall be required to transfer or exchange
any Certificate called for redemption, in whole or in part, within
45 days of the date fixed for redemption; provided, however, such
limitation shall not be applicable to an exchange by the Owner of
the uncalled balance of a Certificate.
Section 3.07. Cancellation and
Authentication.
(a) All Certificates paid
or redeemed before scheduled maturity in accordance with this Ordinance,
and all Certificates in lieu of which exchange Certificates or replacement
Certificates are authenticated and delivered in accordance with this
Ordinance, shall be canceled and destroyed upon the making of proper
records regarding such payment, redemption, exchange or replacement.
The Paying Agent/Registrar shall periodically furnish the City with
certificates of destruction of such Certificates.
(b) Each substitute Certificate
issued pursuant to the provisions of Sections 3.06 and 3.09 of this
Ordinance, in conversion of and exchange for or replacement of any
Certificate or Certificates issued under this Ordinance, shall have
printed thereon a Paying Agent/Registrar's Authentication Certificate,
in the form hereinafter set forth. An authorized representative of
the Paying Agent/Registrar shall, before the delivery of any such
Certificate, manually sign and date such Certificate, and no such
Certificate shall be deemed to be issued or outstanding unless such
Certificate is so executed. No additional ordinances, orders, or resolutions
need be passed or adopted by the City Council or any other body or
person so as to accomplish the foregoing conversion and exchange or
replacement of any Certificate or portion thereof, and the Paying
Agent/Registrar shall provide for the printing, execution, and delivery
of the substitute Certificates in the manner prescribed herein. Pursuant
to Title 9, Tex. Gov't Code Ann., as amended, and particularly Chapter
1201, Subchapter D thereof, the duty of conversion and exchange or
replacement of Certificates as aforesaid is hereby imposed upon the
Paying Agent/Registrar, and, upon the execution of the above Paying
Agent/Registrar's Authentication Certificate, the converted and exchanged
or replaced Certificates shall be valid, incontestable, and enforceable
in the same manner and with the same effect as the Initial Certificate
which was originally delivered pursuant to this Ordinance, approved
by the Attorney General, and registered by the Comptroller of Public
Accounts.
(c) Certificates issued
in conversion and exchange or replacement of any other Certificate
or portion thereof, (i) shall be issued in fully registered form,
without interest coupons, with the principal of and interest on such
Certificates to be payable only to the registered owners thereof,
(ii) may be redeemed prior to their scheduled maturities, (iii) may
be transferred and assigned, (iv) may be converted and exchanged for
other Certificates, (v) shall have the characteristics, (vi) shall
be signed and sealed, and (vii) shall be payable as to principal of
and interest, all as provided, and in the manner required or indicated,
in the Form of Certificates set forth in this Ordinance.
Section 3.08. Replacement Certificates.
(a) Upon the presentation
and surrender to the Paying Agent/Registrar, at the Designated Payment/Transfer
Office, of a mutilated Certificate, the Paying Agent/Registrar shall
authenticate and deliver in exchange therefor a replacement Certificate
of like tenor and principal amount, bearing a number not contemporaneously
outstanding. The City or the Paying Agent/ Registrar may require the
Owner of such Certificate to pay a sum sufficient to cover any tax
or other governmental charge that is authorized to be imposed in connection
therewith and any other expenses connected therewith.
(b) In the event that any
Certificate is lost, apparently destroyed or wrongfully taken, the
Paying Agent/Registrar, pursuant to the applicable laws of the State
of Texas and in the absence of notice or knowledge that such Certificate
has been acquired by a bona fide purchaser, shall authenticate and
deliver a replacement Certificate of like tenor and principal amount,
bearing a number not contemporaneously outstanding, provided that
the Owner first:
(c) If, after the delivery
of such replacement Certificate, a bona fide purchaser of the original
Certificate in lieu of which such replacement Certificate was issued
presents for payment such original Certificate, the City and the Paying
Agent/Registrar shall be entitled to recover such replacement Certificate
from the person to whom it was delivered or any person taking therefrom,
except a bona fide purchaser, and shall be entitled to recover upon
the security or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the City or the Paying Agent/Registrar
in connection therewith.
(d) In the event that any
such mutilated, lost, apparently destroyed or wrongfully taken Certificate
has become or is about to become due and payable, the Paying Agent/Registrar,
in its discretion, instead of issuing a replacement Certificate, may
pay such Certificate if it has become due and payable or may pay such
Certificate when it becomes due and payable.
(e) Each replacement Certificate
delivered in accordance with this Section shall constitute an original
contractual obligation of the City and shall be entitled to the benefits
and security of this Ordinance to the same extent as the Certificate
or Certificates in lieu of which such replacement Certificate is delivered.
ARTICLE IV
REDEMPTION OF CERTIFICATES
BEFORE MATURITY
Section 4.01. Limitation on Redemption.
The Certificates shall
be subject to redemption before scheduled maturity only as provided
in this Article IV.
Section
4.02. Optional Redemption.
(a) The City reserves the
option to redeem the Certificates, in whole or in part, before their
scheduled maturity date, on the first anniversary date of the Closing
Date or on any date thereafter (such redemption date or dates to be
fixed by the City) at a price equal to the principal amount of the
Certificates called for redemption plus accrued interest from the
most recent interest payment date on which interest has been paid
or duly provided for to the redemption date.
(b) The City, at least
forty-five (45) days before the redemption date (unless a shorter
period shall be satisfactory to the Paying Agent/Registrar), shall
notify the Paying Agent/Registrar of such redemption date and of the
principal amount of Certificates to be redeemed.
Section
4.03. Partial Redemption.
(a) If less than all of
the Certificates are to be redeemed pursuant to Section 4.02(a), the
City shall determine the maturities and amounts thereof to be redeemed
and shall direct the Paying Agent/Registrar to call by lot Certificates,
or portions thereof within such maturity and in such principal amounts,
for redemption.
(b) A portion of a single
Certificate of a denomination greater than $5,000 may be redeemed,
but only in a principal amount equal to $5,000 or any integral multiple
thereof. The Paying Agent/Registrar shall treat each $5,000 portion
of the Certificate as though it were a single Certificate for purposes
of selection for redemption.
(c) Upon surrender of any
Certificate for redemption in part, the Paying Agent/Registrar, in
accordance with Section 3.06 , shall authenticate and deliver in exchange
a Certificate or Certificates in an aggregate principal amount equal
to the unredeemed portion of the Certificate so surrendered.
(d) The Paying Agent/Registrar
shall promptly notify the City in writing of the principal amount
to be redeemed of any Certificate as to which only a portion thereof
is to be redeemed.
Section
4.04. Notice of Redemption to Owners.
(a) The Paying Agent/Registrar
shall give notice of any redemption of Certificates by sending notice
by United States mail, first class postage prepaid, not less than
thirty (30) days before the date fixed for redemption, to the Owner
of each Certificate (or part thereof) to be redeemed, at the address
shown on the Register.
(b) The notice shall state the redemption date, the redemption price,
the place at which the Certificates are to be surrendered for payment,
and, if less than all the Certificates outstanding are to be redeemed,
an identification of the Certificates or portions thereof to be redeemed.
(c) Any notice given as
provided in this Section shall be conclusively presumed to have been
duly given, whether or not the Owner receives such notice.
Section
4.05. Payment Upon Redemption.
(a) Before or on each redemption
date, the Paying Agent/Registrar shall make provision for the payment
of the Certificates to be redeemed on such date by setting aside and
holding in trust an amount from the Interest and Sinking Fund or otherwise
received by the Paying Agent/Registrar from the City sufficient to
pay the redemption price of such Certificates.
(b) Upon presentation and
surrender of any Certificate called for redemption at the Designated
Payment/Transfer Office on or after the date fixed for redemption,
the Paying Agent/Registrar shall pay the redemption price of such
Certificate to the date of redemption from the money set aside for
such purpose.
Section
4.06. Effect of Redemption.
(a) Notice of redemption
having been given as provided in Section 4.04 , the Certificates or
portions thereof called for redemption shall become due and payable
on the date fixed for redemption and, unless the City defaults in
the payment of the redemption price thereof, such Certificates or
portions thereof shall cease to bear interest from and after the date
fixed for redemption, whether or not such Certificates are presented
and surrendered for payment on such date.
(b) If any Certificate
or portion thereof called for redemption is not so paid upon presentation
and surrender of such Certificate for redemption, such Certificate
or portion thereof shall continue to bear interest at the rate stated
on the Certificate until paid or until due provision is made for the
payment of same.
ARTICLE V
PAYING AGENT /
REGISTRAR
Section 5.01. Appointment of Initial Paying
Agent/Registrar.
(a) The City hereby appoints
TIB-The Independent BankersBank, as its registrar and transfer agent
to keep such books or records and make such transfers and registrations
under such reasonable regulations as the City and the Paying Agent/Registrar
may prescribe; and the Paying Agent/Registrar shall make such transfer
and registrations as herein provided. It shall be the duty of the
Paying Agent/Registrar to obtain from the Owners and record in the
Register the address of such Owner of each Certificate to which payments
with respect to the Certificates shall be mailed, as provided herein.
The City or its designee shall have the right to inspect the Register
during regular business hours of the Paying Agent/Registrar, but otherwise
the Paying Agent/Registrar shall keep the Registration Books confidential
and, unless otherwise required by law, shall not permit their inspection
by any other entity.
(b) The City hereby further
appoints the Paying Agent/Registrar to act as the paying agent for
paying the principal of and interest on the Certificates. The Paying
Agent/Registrar shall keep proper records
of all payments made by the City and the Paying Agent/Registrar with
respect to the Certificates, and of all conversions, exchanges and
replacements of such Certificates, as provided in this Ordinance.
(c) The execution and delivery
of a Paying Agent/Registrar Agreement, specifying the duties and responsibilities
of the City and the Paying Agent/Registrar, is hereby approved with
such changes as may be approved by the Mayor of the City, and the
Mayor and City Secretary of the City are hereby authorized to execute
such agreement.
Section
5.02. Qualifications.
Each Paying Agent/Registrar
shall be (i) a commercial bank, trust company, or other entity duly
qualified and legally authorized under applicable law, (ii) authorized
under such laws to exercise trust powers, (iii) subject to supervision
or examination by a federal or state governmental authority, and (iv)
a single entity.
Section
5.03. Maintaining Paying Agent/Registrar.
(a) At all times while
any Certificates are outstanding, the City will maintain a Paying
Agent/Registrar that is qualified under Section 5.02 of this Ordinance.
(b) If the Paying Agent/Registrar
resigns or otherwise ceases to serve as such, the City will promptly
appoint a replacement.
Section
5.04. Termination.
The City reserves the right
to terminate the appointment of any Paying Agent/Registrar by delivering
to the entity whose appointment is to be terminated a certified copy
of a resolution of the City (i) giving notice of the termination of
the appointment and of the Paying Agent/Registrar Agreement, stating
the effective date of such termination, and (ii) appointing a successor
Paying Agent/Registrar; provided that no such termination shall be
effective until a successor Paying Agent/Registrar has accepted the
duties of Paying Agent/Registrar for the Certificates.
Section
5.05. Notice of Change to Owners.
Promptly upon each change
in the entity serving as Paying Agent/Registrar, the City will cause
notice of the change to be sent to each Owner by United States mail,
first class postage prepaid, at the address in the Register, stating
the effective date of the change and the name of the replacement Paying
Agent/Registrar and the mailing address of its Designated Payment/Transfer
Office.
Section
5.06. Agreement to Perform Duties and Functions.
By accepting the appointment
as Paying Agent/Registrar, the Paying Agent/Registrar is deemed to
have agreed to the provisions of this Ordinance and that it will perform
the duties and functions of Paying Agent/Registrar prescribed hereby.
Section 5.07. Delivery of Records
to Successor.
If a Paying Agent/Registrar
is replaced, such Paying Agent/Registrar, promptly upon the appointment
of the successor, will deliver the Register (or a copy thereof) and
all other pertinent books and records relating to the Certificates
to the successor Paying Agent/Registrar.
ARTICLE VI
FORM OF THE CERTIFICATES
Section 6.01. Form Generally.
(a) The Certificates, including
the Registration Certificate of the Comptroller of Public Accounts
of the State of Texas, the Certificate of the Paying Agent/Registrar,
and the Assignment form to appear on each of the Certificates, (i)
shall be substantially in the form set forth in this Article, with
such appropriate insertions, omissions, substitutions, and other variations
as are permitted or required by this Ordinance, and (ii) may have
such letters, numbers, or other marks of identification (including
identifying numbers and letters of the Committee on Uniform Securities
Identification Procedures of the American Bankers Association) and
such legends and endorsements (including any reproduction of an opinion
of counsel) thereon as, consistently herewith, may be determined by
the City or by the officers executing such Certificates, as evidenced
by their execution thereof.
(b) Any portion of the
text of any Certificates may be set forth on the reverse side thereof,
with an appropriate reference thereto on the face of the Certificates.
(c) The Certificates shall
be printed, lithographed, or engraved, and may be produced by any
combination of these methods or produced in any other manner, all
as determined by the officers executing such Certificates, as evidenced
by their execution thereof.
Section
6.02. Form of Certificates.
The form of Certificates,
including the form of the Registration Certificate of the Comptroller
of Public Accounts of the State of Texas, the form of Certificate
of the Paying Agent/Registrar and the form of Assignment appearing
on the Certificates, shall be substantially as follows:
(a) [Form of Certificate]
REGISTERED
No._________ |
|
REGISTERED
$___________ |
| |
United
States of America
State of Texas
CITY OF BASTROP, TEXAS
COMBINATION TAX AND REVENUE
CERTIFICATE OF OBLIGATION
SERIES 2003 |
|
| Interest
Rate |
Maturity
Rate |
Original
Issue Date |
Closing
Date |
CUSIP
Number |
| |
|
September
1, 2003 |
|
|
The City of Bastrop (the
"City") in the County of Bastrop, State of Texas, for value
received, hereby promises to pay to __________________________________|
or registered assigns, on the Maturity Date specified above, the sum
of
_____________________________________________________DOLLARS
unless this Certificate
shall have been sooner called for redemption and the payment of the
principal hereof shall have been paid or provision for such payment
shall have been made, and to pay interest on the unpaid principal
amount hereof from the later of the Closing Date specified above or
the most recent interest payment date to which interest has been paid
or provided for until such principal amount shall have been paid or
provided for, 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
to be paid semiannually on February 1 and August 1 of each year, commencing
August 1, 2005.
The principal of this Certificate
shall be payable without exchange or collection charges in lawful
money of the United States of America upon presentation and surrender
of this Certificate at the corporate trust office in Irving, Texas
(the "Designated Payment/Transfer Office"), of the Paying
Agent/Registrar executing the registration certificate appearing hereon,
or, with respect to a successor Paying Agent/Registrar, at the Designated
Payment/Transfer Office of such successor. Interest on this Certificate
is payable by check dated as of the interest payment date, mailed
by the Paying Agent/Registrar to the registered owner at the address
shown on the registration books kept by the Paying Agent/Registrar
or by such other customary banking arrangements acceptable to the
Paying Agent/Registrar, requested by, and at the risk and expense
of, the person to whom interest is to be paid. For the purpose of
the payment of interest on this Certificate, the registered owner
shall be the person in whose name this Certificate is registered at
the close of business on the "Record Date," which shall
be the last business day of the month next preceding such interest
payment date; provided, however, that in the event of nonpayment of
interest on a scheduled interest payment date, and for 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 (the "Special Payment Date",
which shall be 15 days after the Special Record Date) shall be sent
at least five business days prior to the Special Record Date by United
States mail, first class postage prepaid, to the address of each registered
owner of a Certificate appearing on the books of the Paying Agent/Registrar
at the close of business on the last business day preceding the date
of mailing such notice.
If a date for the payment
of the principal of or interest on the Certificates is a Saturday,
Sunday, legal holiday, or a day on which banking institutions in the
city in which the Designated Payment/Transfer Office 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 a Saturday,
Sunday, legal holiday, or day on which such 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.
This Certificate is one
of a series of fully registered certificates of obligation specified
in the title hereof issued in the aggregate principal amount of $3,025,000
(herein referred to as the "Certificates"), issued pursuant
to a certain Ordinance of the City Council of the City (the "Ordinance"),
for the public purpose of paying contractual obligations to be incurred
for additions, improvements and extensions to the City's combined
waterworks and sewer system, acquiring right-of-way and relocating
utilities within the City for State Highway 71, and renovating the
City's existing main fire station.
The Certificates and the
interest thereon are payable from the levy of a direct and continuing
ad valorem tax, within the limit prescribed by law, against all taxable
property in the City and by a limited pledge of certain Surplus Revenues
of the City's waterworks and sewer system, all as provided in the
Ordinance.
The City has reserved the option to redeem the Certificates before
their respective scheduled maturity, in whole or in part, in integral
multiples of $5,000, on the first anniversary date of the Closing
Date or on any date thereafter, at a price equal to the principal
amount of the Certificates so called for redemption plus accrued interest
to the redemption date. If less than all of the Certificates are to
be redeemed, the City shall determine the amounts thereof to be redeemed
and shall direct the Paying Agent/Registrar to call by lot Certificates,
or portions thereof within such maturity or maturities and in such
amounts, for redemption.
Notice of such redemption
or redemptions shall be sent by United States mail, first class postage
prepaid, not less than 30 days before the date fixed for redemption,
to the registered owner of each of the Certificates to be redeemed
in whole or in part. Notice having been so given, the Certificates
or portions thereof designated for redemption shall become due and
payable on the redemption date specified in such notice, and from
and after such date, notwithstanding that any of the Certificates
or portions thereof so called for redemption shall not have been surrendered
for payment, interest on such Certificates or portions thereof shall
cease to accrue.
As provided in the Ordinance, and subject to certain limitations therein
set forth, this Certificate is transferable upon surrender of this
Certificate for transfer at the Designated Payment/Transfer Office,
with such endorsement or other evidence of transfer as is acceptable
to the Paying Agent/Registrar, and, thereupon, one or more new fully
registered Certificates of the same stated maturity, of authorized
denominations, bearing the same rate of interest. and for the same
aggregate principal amount will be issued to the designated transferee
or transferees.
Neither the City nor the
Paying Agent/Registrar shall be required to transfer or exchange any
Certificate called for redemption, in whole or in part, within 45
days of the date fixed for redemption; provided, however, such limitation
shall not be applicable to an exchange by the Owner of the uncalled
balance of a Certificate.
The City, the Paying Agent/Registrar,
and any other person may treat the person in whose name this Certificate
is registered as the owner hereof for the purpose of receiving payment
as herein provided (except interest shall be paid to the person in
whose name this Certificate is registered on the Record Date or Special
Record Date, as applicable) and for all other purposes, whether or
not this Certificate be overdue, and neither the City nor the Paving
Agent/Registrar shall be affected by notice to the contrary.
IT IS HEREBY CERTIFIED
AND RECITED that the issuance of this Certificate and the
series of which it is a part is duly authorized by law; that all acts,
conditions and things required to be done precedent to and in the
issuance of the Certificates have been properly done and performed
and have happened in regular and due time, form and manner, as required
by law; and that the total indebtedness of the City, including the
Certificates, does not exceed any constitutional or statutory limitation.
IN
WITNESS WHEREOF this Certificate has been duly executed on
behalf of the City under its official seal, in accordance with law.
Tom Scott, Mayor, City of Bastrop, Texas
Teresa Miertschin, City Secretary, City of Bastrop, Texas
[Form of Certificate
of Paying Agent/Registrar
CERTIFICATE OF PAYING AGENT/REGISTRAR
This is one of the Certificates referred to in the within mentioned
Ordinance. The series of Certificates of which this Certificate is
a part was originally issued as one Initial Certificate which was
approved by the Attorney General ofthe State of Texas and registered
by the Comptroller of Public Accounts of the State of Texas.
TIB-THE INDEPENDENT BANKERS
BANK
as Paving Agent/Registrar
Dated: ____________
By:_______________
Authorized Signatory
(c) [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
Certificate
and all rights hereunder and hereby irrevocably constitutes and appoints
___________________attorney to transfer the within Certificate on
the books kept for registration hereof, with full power of substitution
in the premises.
Dated:________________
___________________________________________________
NOTICE: The signature on this Assignment must correspond with the
name of the registered owner as it appears on the face of the within
Certificate in every particular and must be guaranteed in a manner
acceptable to the Paying Agent/Registrar.
Signature Guaranteed By:
______________________________________________
Authorized Signatory
(d) Initial Certificate Insertions.
(i)The Initial Certificate shall be in the form set forth in paragraph
(a) of this Section,
except that:
A. immediately under
the name of the Certificate, the headings "Interest Rate"
and "Maturity Date" shall both be completed with the words
"As Shown Below" and "CUSIP Number ___________"
deleted;
B. in the first paragraph:
the words "on the
Maturity Date specified above" shall be deleted and the following
will be inserted: "on August 1 in the years, in the principal
installments and bearing interest at the per annum rates set forth
in the following schedule:
| Years |
Principal
Installments |
Interest
Rates |
(Information to be inserted
from Section 3.02(b) hereof.)
C. In the second paragraph
of the Initial Certificate, "initial" shall be inserted
before "Paying Agent/Registrar" in the first sentence, "executing
the registration certificate appearing hereon," shall be deleted
and an additional sentence shall be
added to the paragraph as follows: "The initial Paying Agent/Registrar
is TIB-The Independent BankersBank.";
D. the Initial Certificate
shall be numbered T-1.
(ii) The following Registration
Certificate of Comptroller of Public Accounts shall appear on the
Initial Certificate in lieu of the Certificate of Paying Agent/Registrar:
REGISTRATION
CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS |
OFFICE
OF THE COMPTROLLER
OF PUBLIC ACCOUNTS |
REGISTER
NO._________________ |
| THE
STATE OF TEXAS |
|
I HEREBY CERTIFY
THAT there
is on file and of record in my office a certificate to the effect
that the Attorney General of the State of Texas has approved this
Certificate, and that this Certificate has been registered this day
by me.
WITNESS MY SIGNATURE
AND SEAL OF OFFICE this_________________________.
[SEAL]
_________________________________________
Comptroller of Public Accounts of the State of Texas
Section
6.03. CUSIP Registration.
The City may secure identification
numbers through the CUSIP Service Bureau Division of Standard &
Poor's Corporation, and may authorize the printing of such numbers
on the face of the Certificates. It is expressly provided, however,
that the presence or absence of CUSIP numbers on the Certificates
shall be of no significance or effect as regards the legality thereof
and neither the City nor the attorneys approving said Certificates
as to legality are to be held responsible for CUSIP numbers incorrectly
printed on the Certificates.
Section
6.04. Legal Opinion.
The approving legal opinion
of Fisher & Newsom, P.C., Bond Counsel, may be printed on the
back of each Certificate, over the certification of the City Secretary,
which may be executed in facsimile; provided that the absence of such
opinion or certification, or both, shall not affect the validity of
the Certificates.
Section 6.05. Municipal Bond Insurance.
If municipal bond guaranty
insurance is obtained with respect to the Certificates, the Certificates,
including the Initial Certificate, may bear an appropriate legend,
as provided by the insurer.
ARTICLE VII
SALE OF THE CERTIFICATES;
CONTROL AND DELIVERY OF THE CERTIFICATES
Section
7.01. Sale of Certificates.
(a) The Certificates are
hereby officially sold and awarded to TIB-The Independent BankersBank,
in accordance with the terms and provisions of that certain Purchase
Contract relating to the Certificates between the City and the Purchaser
and dated the date of the passage of this Order. The form and content
of such Purchase Contract are hereby approved, and the Mayor of the
City is hereby authorized and directed to execute and deliver such
Purchase Contract. It is hereby officially found, determined and declared
that the terms of this sale are the most advantageous reasonably obtainable.
The Certificates shall initially be registered in the name of the
Purchaser or its designee.
(b) All officers of the
City are authorized to do any and all things to execute and deliver
any and all documents, certificates or other instruments necessary
or required for the issuance of any policy or policies of municipal
bond insurance relating to the Certificates. The ordinance requirements
and accompanying commitments for such insurance are hereby approved
and made a part of this Ordinance by reference. To the extent permitted
by applicable law, the City will comply with all notice and other
applicable requirements of the insurer issuing the municipal bond
insurance policy and financial guaranty insurance in connection with
the issuance of the Certificates, as such requirements may be in the
effect and transmitted to Bond Counsel with such insurer's commitment
to issue such insurance.
(c) All officers of the
City are authorized to execute such documents, certificates and receipts
as they may deem appropriate in order to consummate the delivery of
the Certificates in accordance with the Purchase Contract.
(d) The obligation of the
Purchaser to accept delivery of the Certificates is subject to the
Purchaser's being furnished with the final, approving opinion of Fisher
& Newsom, P.C., Bond Counsel for the City, which opinion shall
be dated and delivered the Closing Date.
Section
7.02. Control and Delivery of Certificates.
(a) The Mayor of the City
is hereby authorized to have control of the Initial Certificate and
all necessary records and proceedings pertaining thereto pending investigation,
examination and approval of the Attorney General of the State of Texas,
registration by the Comptroller of Public Accounts of the State of
Texas, and registration with, and initial exchange or transfer by,
the Paying Agent/Registrar.
(b) After registration
by the Comptroller of Public Accounts of the State of Texas, delivery
of the Certificates shall be made to the Purchaser under and subject
to the general supervision and direction of the Mayor of the City,
against receipt by the City of all amounts due to the City under the
terms of sale.
ARTICLE VIII
CREATION OF FUNDS
AND ACCOUNTS; DEPOSIT OF PROCEEDS; INVESTMENTS
Section 8.01. Creation of Funds.
(a) The City hereby establishes the following special funds or accounts:
(i) the City of Bastrop, Texas, Combination Tax and Revenue Certificates
of
Obligation, Series 2003, Interest and Sinking Fund (the "Interest
and Sinking Fund"); and
(ii) the City of Bastrop, Texas, Combination Tax and Revenue Certificates
of Obligation, Series 2003, Construction Fund (the "Construction
Fund").
(b) The Interest and Sinking Fund and the Construction Fund shall
be maintained at an official depository of the City.
Section
8.02. Interest and Sinking Fund.
(a) The taxes levied and
revenues pledged under Article II shall be deposited to the credit
of the Interest and Sinking Fund at such times and in such amounts
as necessary for the timely payment of the principal of and interest
on the Certificates.
(b) Money on deposit in
the Interest and Sinking Fund shall be used to pay the principal of
and interest on the Certificates as such become due and payable.
Section 8.03. Construction
Fund.
(a) Money on deposit in
the Construction Fund, including investment earnings thereof, shall
be used for the purposes specified in Section 3.01 of this Ordinance.
(b) All amounts remaining
in the Construction Fund after the accomplishment of the purposes
for which the Certificates are hereby issued, including investment
earnings of the Construction Fund, shall be deposited into the Interest
and Sinking Fund.
Section
8.04. Security of Funds.
All moneys on deposit in
the funds referred to in this Ordinance shall be secured in the manner
and to the fullest extent required by the laws of the State of Texas
for the security of public funds, and moneys on deposit in such funds
shall be used only for the purposes permitted by this Ordinance.
Section
8.05. Deposit of Proceeds.
(a) All amounts received
on the Closing Date as accrued interest on the Certificates from the
Original Issue Date to the Closing Date, and premium, if any, shall
be deposited to the Interest and Sinking Fund.
(b) The remainder of the proceeds of the Certificates shall be deposited
to the Construction Fund and used for the purposes specified in Section
3.01 hereof and for paying the costs of issuance with respect to the
Certificates.
Section
8.06. Investments.
(a) Money in the funds
established by this Ordinance, at the option of the City, may be invested
in such securities or obligations as permitted under applicable law.
(b) Any securities or obligations
in which money is so invested shall be kept and held in trust for
the benefit of the Owners and shall be sold and the proceeds of sale
shall be timely applied to the making of all payments required to
be made from the fund from which the investment was made.
Section
8.07. Investment Income.
Interest and income derived
from investment of any fund created by this Ordinance shall be credited
to such fund.
ARTICLE IX
PARTICULAR REPRESENTATIONS
AND COVENANTS
Section 9.01. Payment of the Certificates.
While any of the Certificates
are outstanding and unpaid, there shall be made available to the Paying
Agent/Registrar, out of the Interest and Sinking Fund, money sufficient
to pay the interest on and the principal of the Certificates, as applicable,
as will accrue or mature on each applicable Interest Payment Date.
Section
9.02. Other Representations and Covenants.
(a) The City will faithfully
perform at all times any and all covenants, undertakings, stipulations,
and provisions contained in this Ordinance and in each Certificate;
the City will promptly pay or cause to be paid the principal of, interest
on, and premium, if any, with respect to, each Certificate on the
dates and at the places and manner prescribed in such Certificate;
and the City will, at the times and in the manner prescribed by this
Ordinance, deposit or cause to be deposited the amounts of money specified
by this Ordinance.
(b) The City is duly authorized
under the laws of the State of Texas to issue the Certificates; all
action on its part for the creation and issuance of the Certificates
has been duly and effectively taken; and the Certificates in the hands
of the Owners thereof are and will be valid and enforceable obligations
of the City in accordance with their terms.
Section
9.03. Federal Tax Matters.
(a) The City hereby represents
that the proceeds of the Certificates are needed at this time for
the purposes specified in Section 3.01 hereof; that it is not reasonably
expected that the proceeds of the Certificates or money deposited
in the Interest and Sinking Fund will be used or invested in a manner
that would cause the Certificates to be or become "arbitrage
bonds," within the meaning of Section 148 of the
Code; and that, except for the Interest and Sinking Fund, no other
funds or accounts have been established or pledged to the payment
of the Certificates.
(b) The City will not take
any action or fail to take any action with respect to the investment
of the proceeds of the Certificates or any other funds of the City,
including amounts received from the investment of any of the foregoing,
if such action or inaction, based upon the facts, estimates, and circumstances
known on the Closing Date, would result in constituting the Certificates
"arbitrage bonds," within the meaning of Section 148 of
the Code, and the City will not take any deliberate action motivated
by arbitrage that would have such result.
(c) The City will not take
any action or fail to take any action which action or omission would
(1) result in the interest on the Certificates being includable in
gross income for federal tax purposes; (ii) result in the Certificates
being treated as "private activity bonds" within the meaning
of Section 141 (a) of the Code; or (iii) result in the Certificates
being treated as "federally guaranteed" within the meaning
of Section 149(b) of the Code; or (iv) result in the Certificates
being treated as "hedge bonds" within the meaning of Section
149(g) of the Code.
(d) The City will comply
with the provisions of Section 148(f) of the Code (relating to paying
certain excess earnings of investment proceeds of the Certificates
to the United States) and the regulations promulgated thereunder.
This covenant includes the maintenance of records regarding investments
acquired with the proceeds by or on behalf of the City adequate to
calculate the City's rebate liability.
(e) It is the understanding
of the City that the covenants contained herein are intended to assure
compliance with the regulations and rulings issued by the Internal
Revenue Service. In the event that regulations or rulings are hereafter
issued which modify or expand provisions of the Code, as applicable
to the Certificates, the City will not be required to comply with
any covenant contained herein to the extent that such failure to comply,
in the opinion of nationally-recognized bond counsel, will not adversely
affect the exclusion from gross income of interest on the Certificates
under Section 103 of the Code. In the event that regulations or rulings
are hereafter issued which impose additional requirements which are
applicable to the Certificates, the City agrees to comply with the
additional requirements to the extent necessary, in the opinion of
nationally-recognized bond counsel, to preserve the exclusion from
gross income of interest on the Certificates for federal tax purposes
under Section 103 of the Code.
(f) Proper officers of
the City charged with the responsibility of issuing the Certificates
are hereby directed to make, execute and deliver certifications as
to facts, estimates and circumstances in existence as of the Closing
Date and stating whether there are any facts, estimates or circumstances
that would materially change the City's current expectations.
(g) The covenants and representations
made or required by this Section are for the benefit of the Owners
and may be relied upon by the Owners and Bond Counsel for the City.
(h) The Certificates are
hereby designated "qualified tax-exempt obligations" for
the purposes of section 265(b)(3) of the Code. In this regard, neither
the City nor any of its subordinate entities, if any, reasonably expect
to issue in excess of $10,000,000 aggregate amount of tax-exempt obligations
[other than obligations not taken into account pursuant to section
265(b)(3)(C)(ii)] during the calendar year in which the Certificates
are issued, and the City hereby covenants not to designate more than
$10,000,000 aggregate amount of tax-exempt obligations during the
calendar year in which the Certificates are issued.
(i) The covenants set forth in subsections (b), (c), (d) and (e) of
this Section shall survive the later of the defeasance or discharge
of the Certificates.
ARTICLE X
DEFAULT AND REMEDIES
Section 10.01. Events of Default.
Each of the following occurrences
or events for the purpose of this Ordinance is hereby declared to
be an "Event of Default," to-wit:
(1) the failure to make
payment of the principal of or interest on any of the Certificates
when the same becomes due and payable; or
(ii) default in the performance
or observance of any other covenant, agreement or obligation of the
City, the failure to perform which materially, adversely affects the
rights of the Owners, including but not limited to, their prospect
or ability to be repaid in accordance with this Ordinance, and the
continuation thereof for a period of 60 days after notice of such
default is given by any Owner to the City.
Section
10.02. Remedies for Default.
(a) Upon the happening
of any Event of Default, then and in every case any Owner or an authorized
representative thereof, including but not limited to, a trustee or
trustees therefor, may proceed against the City for the purpose of
protecting and enforcing the rights of the Owners under this Ordinance,
by mandamus or other suit, action or special proceeding in equity
or at law, in any court of competent jurisdiction, for any relief
permitted by law, including the specific performance of any covenant
or agreement contained herein, or thereby to enjoin any act or thing
that may be unlawful or in violation of any right of the Owners hereunder
or any combination of such remedies.
(b) It is provided that
all such proceedings shall be instituted and maintained for the equal
benefit of all Owners of Certificates then outstanding.
Section
10.03. Remedies Not Exclusive.
(a) No remedy herein conferred
or reserved is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or under
the Certificates or now or hereafter existing at law or in equity;
provided, however, that notwithstanding any other provision of this
Ordinance, the right to accelerate the debt evidenced by the Certificates
shall not be available as a remedy under this Ordinance.
(b) The exercise of any
remedy herein conferred or reserved shall not be deemed a waiver of
any other available remedy.
ARTICLE XI
DISCHARGE AND DEFEASANCE
Section 11.01. Discharge and Defeasance
by Payment.
When any Certificate or
Certificates shall have been paid in full as to principal and interest,
or when any Certificate or Certificates shall have become due and
payable, whether at maturity or otherwise, and the City shall have
provided for the payment of the entire amount due or to become due
on such Certificate or Certificates by depositing with the Paying
Agent/Registrar, for payment of such Certificate or Certificates then
outstanding, the entire amount due or to become due thereon, and the
City shall also have paid or caused to be paid all sums payable with
respect to such Certificate or Certificates under this Ordinance,
and shall have made proper arrangements for payment of the compensation
due or to become due the Paying Agent/Registrar with respect to such
Certificate or Certificates, then the Certificate or Certificates
thus paid or for which provision for payment is thus made shall be
deemed paid and retired and shall no longer be regarded as outstanding
and unpaid, and the Paying Agent/Registrar, upon receipt of a letter
of instructions from the City requesting the same, shall discharge
and release the lien of this Ordinance with respect to such Certificate
or Certificates and execute and deliver to the City such releases
or other instruments as shall be requisite to release the lien hereof.
Section
11.02. Discharge and Defeasance by Deposit.
(a) The City may discharge
its obligation to pay the principal of and interest on all or any
portion of the Certificates and its obligation to pay other sums payable
or to become payable under this Ordinance by the City, including the
compensation due or to become due the Paying Agent/Registrar, by complying
with the following provisions:
