HomeMy WebLinkAboutOrdinance 23244-06-2018 ORDINANCE NO. 23244-06-2018
AN ORDINANCE AUTHORIZING THE ISSUANCE OF THE "CITY OF FORT WORTH,
TEXAS, SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2018 (FORT WORTH
PUBLIC IMPROVEMENT DISTRICT NO. 17 (ROCK CREEK RANCH) ROADWAY
IMPROVEMENT PROJECT)"; AND APPROVING AND AUTHORIZING RELATED
AGREEMENTS
WHEREAS, (1)the City of Fort Worth, Texas(the "City"),pursuant to and in accordance
with the terms, provisions and requirements of the Public Improvement District Assessment Act,
Subchapter A of Chapter 372, Texas Local Government Code (the "PID Act"), has previously
established the Fort Worth Public Improvement District No. 17 (Rock Creek Ranch) (the
"District"),pursuant to Resolution No. 4724-12-2016 adopted by the City Council of the City(the
"Council") on December 13, 2016; (2) the authorization creating the District became effective on
December 16, 2016 upon publication of Resolution No. 4724-12-2016 in the Fort Worth Star-
Telegram, a newspaper of general circulation in the City and the District; and (3) no written
protests of the District from any owners of record of property within the District were filed with
the City Secretary within 20 days after the date of publication of such notice; and
WHEREAS, (1) the City Council previously adopted a Service and Assessment Plan (the
"Service and Assessment Plan") for the District pursuant to Ordinance 22832-08-2017 adopted
on August 15, 2017; (2) levied the Major Improvement Special Assessments (as defined in the
Service and Assessment Plan; and (3) issued its bonds designated "City of Fort Worth, Texas
Special Assessment Revenue Bonds, Series 2017 (Fort Worth Public Improvement District No. 17
(Rock Creek Ranch) Major Improvement Project)" payable from and secured by the Major
Improvement Special Assessments; and
WHEREAS, pursuant to the PID Act, on May 18, 2018, the Council published notice of a
public hearing in the Fort Worth Star-Telegram, a newspaper of general circulation in the City and
the District, and held such public hearing on June 5, 2018, regarding the levy of Roadway
Improvement Special Assessments (as defined in the Service and Assessment Plan) within the
District, and on such date, the Council adopted Ordinance No. _-_-2018 (the "Roadway
Improvement Assessment Ordinance"); and
WHEREAS, in the Roadway Improvement Assessment Ordinance, the Council approved
and accepted an update to the Service and Assessment Plan (the "Service and Assessment Plan
Update")and levied the Roadway Improvement Special Assessments against the Assessment Roll
for the Western Improvement Area of the District (as such terms are defined and described in the
Service and Assessment Plan Update). Capitalized terms used in this preamble and not otherwise
defined shall have the meaning assigned thereto in the Service and Assessment Plan Update; and
WHEREAS, the Council has found and determined that it is in the best interests of the
City to issue its bonds to be designated "City of Fort Worth, Texas Special Assessment Revenue
Bonds, Series 2018 (Fort Worth Public Improvement District No. 17 (Rock Creek Ranch)
Roadway Improvement Project)" (the "Bonds"), such Bonds to be payable from and secured by
the Pledged Revenues, as defined in the Indenture (defined below); and
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WHEREAS, the City is authorized by the PID Act to issue the Bonds for the purpose of
(i)paying a portion of the costs of the Roadway Improvements within the Western Improvement
Area of the District, (ii) paying a portion of the interest on the Bonds during and after the period
of acquisition and construction of the Roadway Improvements, (iii)funding a reserve fund for the
payment of principal of and interest on the Bonds, and (iv) paying the costs of issuance of the
Bonds; and
WHEREAS, in connection with the issuance of the Bonds, the City has determined that
the Roadway Improvements are located within the District and confer a special benefit on the
Western Improvement Area of the District; and
WHEREAS, the Council has found and determined to approve (i) the issuance of the
Bonds to finance the Roadway Improvements, (ii) the form, terms and provisions of an Indenture
securing the Bonds authorized hereby, (iii) the form, terms and provisions of a Bond Purchase
Agreement (defined below) between the City and the purchaser of the Bonds, (iv) a Limited
Offering Memorandum (defined below), and (v) a Continuing Disclosure Agreement (defined
below); and
WHEREAS, the meeting at which this Ordinance is considered is open to the public as
required by law, and the public notice of the time, place and purpose of said meeting was given as
required by Chapter 551, Texas Government Code, as amended;
NOW,THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF FORT WORTH, TEXAS, THAT:
Section 1. Findings. The findings and determinations set forth in the preamble hereof
are hereby incorporated by reference for all purposes as if set forth in full herein.
Section 2. Approval of Issuance of Bonds and Indenture of Trust.
(a) The issuance of the Bonds in the principal amount of$5,155,000 for the purpose of(i)
paying a portion of the costs of the Roadway Improvements within the Western Improvement Area
of the District, (ii) paying a portion of the interest on the Bonds during and after the period of
acquisition and construction of the Roadway Improvements, (iii) funding a reserve fund for the
payment of principal of and interest on the Bonds, and (iv) paying the costs of issuance of the
Bonds, is hereby authorized and approved.
(b) The Bonds shall be issued and secured under that certain Indenture of Trust (the
"Indenture") dated as of June 1, 2018, between the City and BOKF, NA, as trustee (the
"Trustee"), with such changes as may be necessary or desirable to carry out the intent of this
Ordinance and as may be approved jointly by the Chief Financial Officer / Director of Financial
Management Services and the City Manager, or any designee of the City Manager, such approval
to be evidenced by the execution and delivery of the Indenture,which Indenture is hereby approved
in substantially final form attached hereto as Exhibit A and incorporated herein as a part hereof
for all purposes. The City Manager of the City is hereby authorized and directed to execute the
Indenture and the City Secretary is hereby authorized and directed to attest such signature of the
City Manager.
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(c) The Bonds shall be dated, shall mature on the date or dates and in the principal amount
or amounts, shall bear interest, shall be subject to redemption and shall have such other terms and
provisions as set forth in the Indenture. The Bonds shall be in substantially the form set forth in
the Indenture, with such insertions, omissions and modifications as may be required to conform
the form of Bond to the actual terms of the Bonds. The Bonds shall be payable from and secured
by the Pledged Revenues (as defined in the Indenture) and other assets of the Trust Estate (as
defined in the Indenture) pledged to the Bonds and shall never be payable from ad valorem taxes
or any other funds or revenues of the City.
Section 3. Sale of Bonds; Approval of Bond Purchase Agreement. The Bonds shall be
sold to Stifel, Nicolaus & Company, Incorporated (the "Underwriter") at the price and on the
terms and provisions set forth in that certain Bond Purchase Agreement (the "Bond Purchase
Agreement"), dated on or about the date hereof, between the City and the Underwriter, attached
hereto as Exhibit B and incorporated herein as a part hereof for all purposes, which terms of sale
are declared to be in the best interest of the City. The form, terms and provisions of the Bond
Purchase Agreement are hereby authorized and approved and the City Manager of the City is
hereby authorized and directed to execute and deliver the Bond Purchase Agreement. The City
Manager's signature on the Bond Purchase Agreement may be attested by the City Secretary.
Section 4. Limited Offering Memorandum. The form and substance of the Preliminary
Limited Offering Memorandum for the Bonds and any addenda, supplement or amendment thereto
and the final Limited Offering Memorandum (the "Limited Offering Memorandum") in
substantially the form presented to, considered, and authorized at the meeting of May 15, 2018
(Resolution 4939-05-2018)are hereby in all respects approved and adopted. The Limited Offering
Memorandum,with such appropriate variations as shall be approved jointly by the Chief Financial
Officer/ Director of Financial Management Services and the City Manager, or his designee, and
the Underwriter, may be used by the Underwriter in the offering and sale of the Bonds. The use
and distribution of the Preliminary Limited Offering Memorandum in the offering of the Bonds is
hereby ratified, approved and confirmed. Notwithstanding the approval and delivery of such
Preliminary Limited Offering Memorandum and Limited Offering Memorandum by the Council,
the Council, including staff and appointed officials, are not responsible for and proclaims no
specific knowledge of the information contained in the Preliminary Limited Offering
Memorandum and Limited Offering Memorandum pertaining to the Roadway Improvements,the
Developer or its financial ability, any builders, any landowners, or the appraisal of the property in
the District.
Section 5. Continuiniz Disclosure Agreement. The Continuing Disclosure Agreement
(the "Continuing Disclosure Agreement") between the City, HTS Continuing Disclosure
Services, a Division of Hilltop Securities, Inc., and Municap, Inc., is hereby authorized and
approved in substantially final form attached hereto as Exhibit C and incorporated herein as a part
hereof for all purposes and the City Manager of the City is hereby authorized and directed to
execute and deliver such Continuing Disclosure Agreement with such changes as may be required
to carry out the purpose of this Ordinance and approved by the City Manager, such approval to be
evidenced by the execution thereby.
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Section 6. Additional Actions. The City Manager, any designee of the City Manager,
the Chief Financial Officer / Director of Financial Management Services and the City Secretary
are hereby authorized and directed to take any and all actions on behalf of the City necessary or
desirable to carry out the intent and purposes of this Ordinance and to issue the Bonds in
accordance with the terms of this Ordinance. The City Manager, any designee of the City
Manager, the Chief Financial Officer / Director of Financial Management Services and the City
Secretary are hereby authorized and directed to execute and deliver any and all certificates,
agreements,notices, instruction letters, requisitions, and other documents which may be necessary
or advisable in connection with the sale, issuance and delivery of the Bonds and the carrying out
of the purposes and intent of this Ordinance,and the Chief Financial Officer/Director of Financial
Management Services and any designee of the City Manager are hereby designated as a special
Acting Assistant City Manager for the limited purpose of executing such certificates, agreements,
notices, instruction letters, requisitions, and other documents on behalf of the City.
Section 7. Severability. If any Section, paragraph, clause or provision of this
Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability of such Section, paragraph, clause or provision shall not affect any of the
remaining provisions of this Ordinance.
Section 8. Effective Date. This Ordinance is passed on one reading as authorized by
Texas Government Code, Section 1201.028, and shall be effective immediately upon its passage
and adoption.
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AND IT IS SO ORDAINED.
APPROVED AS TO FORM AND LEGALITY: ATTEST:
Cf 1, '
Ul f
6i
Deni
nior Assistant City Attorney Aonald Gonzales,Assist6njCity Secretary
M&C: G-19296
........FO....R.
Adopted and Effective: June 5, 2018 ox
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 6/5/2018 - Ordinance Nos. 23244-06-2018, 23. 245-06-2018,
23246-06-2018, & 23247-06:2018
DATE: Tuesday, June 5, 2018 REFERENCE NO.: G-19296
LOG NAME: 13ROC1< CREEK RANCH PID 2018BOND
SUBJECT:
Adopt Ordinance Authorizing Issuance of the City of Fort Worth, Texas Special Assessment Revenue
Bonds, Series 2018 (Fort Worth Public Improvement District No. 17 (Rock Creek Ranch) Road
Improvement Project) (Bonds) for the Purpose of Paying a Portion of the Costs of the Road Improvements
within the PID, Paying a Portion of the Interest on the Bonds During and After the Period of Acquisition and
Construction of the Road Improvements, Funding a Reserve for the Payment of Principal and Interest on
the Bonds, and Paying the Cost of Issuance of the Bonds; Authorizing Execution of All Related Documents;
Ordaining Related Matters and Adopt Appropriation Ordinances (ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council:
1. Adopt the attached ordinance (a) authorizing the issuance and approving the sale of Bonds in the
principal amount set forth in the attached ordinance for the purpose of(i) paying a portion of the costs of
the Road Improvements within the PID; (ii) paying a portion of the interest on the Bonds during and after
the period of acquisition and construction of the Road Improvements; (iii) funding a reserve for the
payment of principal and interest on the Bonds; (iv) paying the cost of issuance of the Bonds; (b)
approving and authorizing the execution of the Indenture of Trust setting forth the terms of the Bonds and
securing the pledge of assessments to the payment thereof; (c) approving and authorizing the execution
of the Bond Purchase Agreement, pursuant to which Stifel, Nicolaus & Co., Inc. agree to purchase the
Bonds from the City; (d) authorizing and approving the use of the Preliminary Limited Offering
Memorandum and Final Offering Memorandum in connection with the pricing and sale of the Bonds and
(e) authorizing and approving the execution of the Continuing Disclosure Agreement pursuant to which the
City undertakes to make certain disclosure with respect to the Bonds as required by the Securities and
Exchange Commission Rule 15c2-12;
2. Adopt the attached ordinance increasing estimated receipts and appropriations in the Series 2018
Rock Creek Ranch PID Road Improvement Project Fund by $5,512,350, subject to the sale of special
assessment revenue bonds and receipt of proceeds, to provide $5,040,096 in funding for road related
improvements and up to $472,255 to pay for bond underwriting fees, cost of issuance;
3. Adopt the attached ordinance increasing, subject to the sale of special assessment revenue bonds and
receipt of proceeds, estimated receipts and appropriations in the Rock Creek Ranch PID Debt Service
Fund by up to $517,930.00 in the Bond Reserve Account, to fund the required reserve and by up to
$682,715.13 in the Capitalized Interest Account, to fund the payment of interest on the bonds during and
after the period of acquisition and construction of the road improvements; and
4. Adopt the attached ordinance increasing estimated receipts and appropriations in the Rock Creek PID
Operating Fund by $45,000, to provide for funding admin expenses.
Logname: 13ROCK CREEK RANCH_PID_2018BOND Page I of 3
DISCUSSION:
The purpose of this Mayor and Council Communication (M&C) is to approve the issuance and sale of the
Bonds that will allow the City of Fort Worth (City) to fund major road improvements associated with Fort
Worth Public Improvement District No. 17 (Rock Creek Ranch).
Staff is recommending that these bonds be sold to Stifel, Nicolaus & Co., Inc. pursuant to a bond
purchase agreement resulting from a negotiated sale process conducted as a public underwriting. The
Bonds will have the terms set forth in the Indenture of Trust attached to the ordinance and will be non-
rated 19-year bonds to match the timing of the assessments' annual installments of the
assessment. Bonds will be sold only to Qualified Institutional Investors upon execution of an Investor
Letter attached to the Preliminary Limited Offering Memorandum. The purpose of the fully funded debt
service reserve fund is to manage unforeseen payment delinquencies and timing of foreclosure
proceedings.
Proceeds from the sale of the Bonds will be used to pay the cost of road improvements and of bond
issuance and to fund the required reserve and capitalized interest accounts. The approximate costs for
each are presented in the table below:
Use of Bond Proceeds F Amount
Authorized Road Improvements (Bond Proceeds) $3,747,100.81
Other Fund Deposits:
Debt Service Reserve Requirement $517,930.00
Capitalized Interest
682,715.13 _
Cost of Issuance, Underwriting, Organizing District
472,254.06 _
Other Uses of Funds
Deposit to Admin Expense 45,000.00
Total 5,465,000
The exact amount of the costs of issuance, capitalized interest and reserve will fluctuate slightly based on
the final terms of sale. Appropriations will be limited to the amounts actually received and needed for
each identified purpose.
FISCAL INFORMATION / CERTIFICATION:
The Director of Finance certifies that upon adoption of the actions provided within this Mayor and Council
Communication, the sale of the City of Fort Worth, Texas, Special Assessment Revenue Bonds, Series
2018 (Fort Worth Public Improvement District No. 17 (Rock Creek Ranch) Road Improvement Project), will
proceed as necessary to provide funding of the Road Improvements outlined in the Fort Worth Public
Improvement District No. 17 (Rock Creek Ranch) Service and Assessment Plan.
FUND IDENTIFIERS (FIDs):
TO
Logname: 13ROCK CREEK RANCH_PID_2018BOND Page 2 of 3
Fund Department ccoun Project ctivity Budget Reference # moun
I ID ID IProgram
( Year (Chartfield 2)
FROM
Fund Department ccoun Project JProgram ctivity Budget Reference # moun
ID ID Year Chartfield 2
CERTIFICATIONS:
Submitted for City Manager's Office by: Jay Chapa (5804)
Originating Department Head: Aaron Bovos (8517)
Additional Information Contact: Alex Laufer (2268)
Logname: 13ROCK CREEK RANCH_PID 2018BOND Page 3 of 3
Exhibit A
Indenture of Trust
INDENTURE OF TRUST
By and Between
CITY OF FORT WORTH, TEXAS
and
BOKF, NA,
as Trustee
DATED AS OF JUNE 1, 2018
SECURING
$5,155,000
CITY OF FORT WORTH, TEXAS,
SPECIAL ASSESSMENT REVENUE BONDS, SERIES 2018
(FORT WORTH PUBLIC IMPROVEMENT DISTRICT NO, 17 (ROCK CREEK RANCH)
ROADWAY IMPROVEMENT PROJECT)
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS,FINDINGS AND INTERPRETATION.................................................4
Section1.1 Definitions..............................................................................................................4
Section1.2 Findings................................................................................................................13
Section 1.3 Table of Contents,Titles and Headings...............................................................13
Section 1.4 Interpretation........................................................................................................13
ARTICLE2 THE BONDS......................................................................................................................13
Section 2.1 Security for the Bonds..........................................................................................13
Section 2.2 Limited Obligations. ............................................................................................13
Section 2.3 Authorization for Indenture..................................................................................14
Section 2.4 Contract with Owners and Trustee.......................................................................14
ARTICLE 3 AUTHORIZATION; GENERAL TERMS AND PROVISIONS REGARDING
THEBONDS..................................................................................................................14
Section 3.1 Authorization. ......................................................................................................14
Section 3.2 Date, Denomination, Maturities,Numbers and Interest.......................................14
Section 3.3 Conditions Precedent to Delivery of Bonds.........................................................15
Section 3.4 Medium, Method and Place of Payment..............................................................15
Section 3.5 Execution and Registration of Bonds...................................................................16
Section3.6 Ownership............................................................................................................17
Section 3.7 Registration,Transfer and Exchange...................................................................17
Section3.8 Cancellation. ........................................................................................................18
Section 3.9 Temporary Bonds.................................................................................................18
Section 3.10 Replacement Bonds..............................................................................................18
Section 3.11 Book-Entry Only System.....................................................................................19
Section 3.12 Successor Securities Depository: Transfer Outside Book-Entry-Only
System..................................................................................................................20
Section 3.13 Payments to Cede & Co.......................................................................................20
ARTICLE 4 REDEMPTION OF BONDS BEFORE MATURITY....................................................20
Section 4.1 Limitation on Redemption. ..................................................................................20
Section 4.2 Mandatory Sinking Fund Redemption.................................................................21
Section 4.3 Optional Redemption...........................................................................................22
Section 4.4 Extraordinary Optional Redemption....................................................................22
Section 4.5 Partial Redemption...............................................................................................22
Section 4.6 Notice of Redemption to Owners.........................................................................23
Section 4.7 Payment Upon Redemption. ................................................................................23
Section 4.8 Effect of Redemption...........................................................................................24
ARTICLE5 FORM OF THE BONDS ..................................................................................................24
Section5.1 Form Generally. ...................................................................................................24
Section 5.2 CUSIP Registration..............................................................................................24
Section5.3 Legal Opinion. .....................................................................................................24
ARTICLE 6 FUNDS AND ACCOUNTS...............................................................................................25
Section 6.1 Establishment of Funds and Accounts.................................................................25
Section 6.2 Initial Deposits to Funds and Accounts................................................................26
Section 6.3 Pledged Revenue Fund.........................................................................................27
Section6.4 Bond Fund............................................................................................................28
Section6.5 Project Fund.........................................................................................................28
Section6.6 Redemption Fund.................................................................................................29
Section6.7 Reserve Fund........................................................................................................29
Section 6.8 Rebate Fund: Rebate Amount..............................................................................31
Section 6.9 Administrative Fund.............................................................................................31
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Section 6.10 Developer Contribution Fund. .............................................................................31
Section 6.11 Investment of Funds.............................................................................................33
Section 6.12 Security of Funds.................................................................................................33
Section 6.13 Disbursements to Brewer Road Project Costs......................................................34
ARTICLE 7 COVENANTS....................................................................................................................34
Section 7.1 Confirmation of Special Assessments..................................................................34
Section 7.2 Collection and Enforcement of Special Assessments. .........................................34
Section 7.3 Against Encumbrances.........................................................................................34
Section 7.4 Records, Accounts, Accounting Reports..............................................................35
Section 7.5 Covenants to Maintain Tax-Exempt Status..........................................................35
ARTICLE 8 LIABILITY OF CITY.......................................................................................................39
ARTICLE 9 THE TRUSTEE.................................................................................................................40
Section 9.1 Trustee as Registrar and Paying Agent................................................................40
Section 9.2 Trustee Entitled to Indemnity...............................................................................40
Section 9.3 Responsibilities of the Trustee.............................................................................40
Section 9.4 Property Held in Trust.............................................................
Section 9.5 Trustee Protected in Relying on Certain Documents...........................................44
Section9.6 Compensation.......................................................................................................44
Section 9.7 Permitted Acts......................................................................................................45
Section 9.8 Resignation of Trustee. ........................................................................................45
Section 9.9 Removal of Trustee..............................................................................................45
Section 9.10 Successor Trustee.................................................................................................45
Section 9.11 Transfer of Rights and Property to Successor Trustee.........................................46
Section 9.12 Merger, Conversion or Consolidation of Trustee.................................................46
Section 9.13 Trustee to File Continuation Statements..............................................................47
Section 9.14 Accounts, Periodic Reports and Certificates........................................................47
Section 9.15 Construction of Indenture. ...................................................................................47
ARTICLE 10 MODIFICATION OR AMENDMENT OF THIS INDENTURE...............................47
Section 10.1 Amendments Permitted........................................................................................47
Section10.2 Owners' Meetings................................................................................................48
Section 10.3 Procedure for Amendment with Written Consent of Owners..............................48
Section 10.4 Effect of Supplemental Indenture. .......................................................................49
Section 10.5 Endorsement or Replacement of Bonds Issued After Amendments. ...................49
Section 10.6 Amendatory Endorsement of Bonds....................................................................49
Section 10.7 Waiver of Default...............................................
Section 10.8 Execution of Supplemental Indenture..................................................................49
ARTICLE 11 DEFAULT AND REMEDIES........................................................................................49
Section 11.1 Events of Default. ................................................................................................50
Section 11.2 Immediate Remedies for Default. ........................................................................50
Section 11.3 Restriction on Owner's Action.............................................................................51
Section 11.4 Application of Revenues and Other Moneys After Default.................................51
Section 11.5 Effect of Waiver...................................................................................................52
Section 11.6 Evidence of Ownership of Bonds. .......................................................................52
Section11.7 No Acceleration. ..................................................................................................53
Section11.8 Mailing of Notice.................................................................................................53
Section 11.9 Exclusion of Bonds..............................................................................................53
ARTICLE 12 GENERAL COVENANTS AND REPRESENTATIONS............................................53
Section 12.1 Representations as to Pledged Revenues. ............................................................53
Section 12.2 Accounts, Periodic Reports and Certificates........................................................54
Section12.3 General.................................................................................................................54
ARTICLE 13 SPECIAL COVENANTS................................................................................................54
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Section 13.1 Further Assurances; Due Performance.................................................................54
Section 13.2 Additional Obligations; Other Obligations or Other Liens..................................54
Section 13.3 Books of Record...................................................................................................55
ARTICLE 14 PAYMENT AND CANCELLATION OF THE BONDS AND
SATISFACTION OF THE INDENTURE...................................................................55
Section 14.1 Trust Irrevocable..................................................................................................55
Section 14.2 Satisfaction of Indenture. .....................................................................................55
Section 14.3 Bonds Deemed Paid.............................................................................................55
ARTICLE15 MISCELLANEOUS........................................................................................................56
Section 15.1 Benefits of Indenture Limited to Parties..............................................................56
Section 15.2 Successor is Deemed Included in All References to Predecessor........................56
Section 15.3 Execution of Documents and Proof of Ownership by Owners............................56
Section 15.4 Waiver of Personal Liability. ...............................................................................56
Section 15.5 Notices to and Demands on City and Trustee......................................................57
Section 15.6 Partial Invalidity...................................................................................................58
Section 15.7 Applicable Laws. .................................................................................................58
Section 15.8 Payment on Business Day....................................................................................58
Section15.9 Counterparts.........................................................................................................59
Section 15.10 Contracts with Companies Engaged in Business with Iran, Sudan or
Foreign Terrorist Organization Prohibited (S.B. 252 85`h Texas
Legislature). .........................................................................................................59
Section 15.11 No Boycott of Israel.............................................................................................59
Section15.12 Form 1295............................................................................................................59
EXHIBIT A: Form of Bond
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INDENTURE OF TRUST
THIS INDENTURE, dated as of June 1, 2018 is by and between the CITY OF FORT WORTH,
TEXAS (the "City"), and BOKF, NA, a national banking association, as trustee (together with its
successors, the "Trustee"). Capitalized terms used in the preambles, recitals and granting clauses and not
otherwise defined shall have the meanings assigned thereto in ARTICLE 1.
WHEREAS, a petition was submitted by the Petitioner and filed with the City Secretary of the
City (the "City Secretary") pursuant to the Public Improvement District Assessment Act, Texas Local
Government Code, Chapter 372, as amended (the "PID Act"), requesting the creation of a public
improvement district located within the corporate limits of the City to be known as Fort Worth Public
Improvement District No. 17 (Rock Creek Ranch) (the "District"); and
WHEREAS, the petition contained the signature of the owner of taxable property representing
more than fifty percent of the appraised value of taxable real property liable for assessment within the
District, as determined by the then current ad valorem tax rolls of the Tarrant Central Appraisal District,
and the signature of the record owner of real taxable real property that constitutes more than fifty percent
of the area of all taxable property that is liable for assessment by the District; and
WHEREAS, on December 6, 2016, after due notice, the City Council of the City (the "City
Council") held the public hearing in the manner required by law on the advisability of the improvement
projects and services described in the petition as required by Section 372.009 of the PID Act and on
December 13, 2016, the City Council made the findings required by Section 372.009(b) of the PID Act
and, by Resolution No. 4724-12-2016, adopted by the City Council, authorized the District in accordance
with its finding as to the advisability of the improvement projects and services; and
WHEREAS, on December 16, 2016, the City published notice of its authorization of the District
in the Fort Worth Star Telegram, a newspaper of general circulation in the City; and
WHEREAS, no written protests of the District from any owners of record of property within the
District were filed with the City Secretary within 20 days after December 16, 2016; and
WHEREAS, on September 14, 2017, the City issued the City of Fort Worth, Texas, Special
Assessment Revenue Bonds, Series 2017 (Fort Worth Public Improvement District No. 17 (Rock Creek
Ranch) Major Improvement Project), dated August 15, 2017 (the "Major Improvement Bonds"), which
bonds were secured by a separate assessment on each of the Eastern Improvement Area and the Western
Improvement Area parcels pursuant to Ordinance No. 22832-08-2017 and the Service and Assessment
Plan; and
WHEREAS, the "Trust Estate" securing the Major Improvement Bonds is not available to secure
the Bonds hereinafter defined, and
WHEREAS, on May 15, 2018, the City Council, pursuant to Section 372.016 of the PID Act,
adopted Resolution No. 4937-05-2018 approving preliminary updated assessment rolls for the District,
directing that the City Secretary make the same available for inspection, and directing City staff that
notice be mailed to the property owners in the District and published in a newspaper of general
circulation; and
WHEREAS, on May 18, 2018, the City Council, pursuant to Section 372.016(b) of the PID Act,
published notice of a public hearing (the "Assessment Hearing") in the Fort Worth Star Telegram, a
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newspaper of general circulation in the City, to consider the proposed updated Assessment Roll and
updated Service and Assessment Plan and the levy of the Roadway Improvement Special Assessments on
property in the District; and
WHEREAS, the City Council, pursuant to Section 372.016(c) of the PID Act, mailed notice of
the Assessment Hearing to consider the proposed updated Assessment Roll and the updated Service and
Assessment Plan and the levy of Roadway Improvement Special Assessments on property in the District
to the last known address of the owners of the property liable for the Roadway Improvement Special
Assessments; and
WHEREAS, the City Council convened the Assessment Hearing on June 5, 2018, and at such
public hearing all persons who appeared, or requested to appear, in person or through a representative
acting on their behalf, were given the opportunity to contend for or contest the proposed updated
Assessment Roll and the Roadway Improvement Special Assessments, and to offer testimony pertinent to
any issue presented on the amount of the Roadway Improvement Special Assessment, the allocation of
Roadway Improvement Costs, the purposes of the Roadway Improvement Special Assessment, the
special benefits of the Roadway Improvement Special Assessment, and the penalties and interest on
annual installments and on delinquent annual installments of the Roadway Improvement Special
Assessment; and
WHEREAS, at the Assessment Hearing, there were no written objections or evidence submitted
to the City Secretary in opposition to the updated Service and Assessment Plan, the allocation of
Roadway Improvement Costs, the revised Assessment Roll, or the levy of the Roadway Improvement
Special Assessments; and
WHEREAS, on June 5, 2018, the City Council closed the Assessment Hearing, and, after
considering all written and documentary evidence presented at the hearing, including all written
comments and statements filed with the City, the City approved and accepted the updated Service and
Assessment Plan in conformity with the requirements of the PID Act and adopted the Assessment
Ordinance and therein approved the revised Assessment Roll and levied the Roadway Improvement
Special Assessments; and
WHEREAS, the City Council is authorized by the PID Act to issue its revenue bonds payable
from the Roadway Improvement Special Assessments for the purpose of (i) paying a portion of the
Roadway Improvement Costs, (ii) paying capitalized interest on the Bonds during and after the period of
acquisition and construction of the Roadway Improvements, (iii) funding a reserve fund for payment of
principal and interest on the Bonds, and (iv) paying costs of issuance; and
WHEREAS, the District is divided into an Eastern Improvement Area and Western Improvement
Area; and
WHEREAS, the Roadway Improvement Special Assessment is being levied solely on property in
the Western Improvement Area; and
WHEREAS, the Roadway Improvements are a component of the larger Brewer Road Project,
which includes the Roadway Improvements, roadway improvements benefitting the University Property,
and certain roadway improvements outside of the District; and
WHEREAS, that portion of the Brewer Road Project consisting of(1) Roadway Improvements is
being financed by the Bonds and certain lawfully available funds contributed by the City (the "City
Contribution: Intra-District" as defined below); (2) University Roadway Improvements is being financed
by a contribution made by the Developer and held by the Trustee under the University Property
Improvement Account created under this Indenture; and (3) all other roadway improvements is being
financed by a contribution made by the Developer and held by the Trustee under the Chisholm Trail
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Ranch Improvement Account created under this Indenture, together with certain lawfully funds of the
City (the "City Contribution: Outside-District,"as defined below); and
WHEREAS, while the Roadway Improvement Account, the University Property Improvement
Account, and the Chisholm Trail Property Improvement Account are being funded at Closing from
proceeds of the Bonds, and from contributions from the Developer, the City Contribution is being paid by
the City on a "pay-as-you-go" basis subject to the approval of a Certificate for Payment pursuant to the
procedures described herein;
WHEREAS, funds held in the Accounts in the Developer Fund are not pledged to the payment of
the Bonds hereunder and are not a part of the Trust Estate; and
WHEREAS, funds held by the City for the "pay-as-you-go" contributions are not pledged to the
payment of the Bonds hereunder and are not a part of the Trust Estate; and
WHEREAS, the City Council now desires to issue revenue bonds, in accordance with the PID
Act, such bonds to be entitled "City of Fort Worth, Texas, Special Assessment Revenue Bonds, Series
2018 (Fort Worth Public Improvement District No. 17 (Rock Creek Ranch) Roadway Improvement
Project)" (the "Bonds"), such Bonds being payable solely from the Roadway Improvement Special
Assessments and other funds pledged under this Indenture to the payment of the Bonds and for the
purposes set forth in the preamble of this Indenture; and
WHEREAS, the Trustee has agreed to accept the trusts herein created upon the terms set forth in
this Indenture;
NOW, THEREFORE, the City, in consideration of the foregoing premises and acceptance by the
Trustee of the trusts herein created, of the purchase and acceptance of the Bonds by the Owners thereof,
and of other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby GRANT, CONVEY, PLEDGE, TRANSFER, ASSIGN, and DELIVER to the
Trustee for the benefit of the Owners, a security interest in all of the moneys, rights and properties
described in the Granting Clauses hereof, as follows (collectively, the"Trust Estate"):
FIRST GRANTING CLAUSE
The Pledged Revenues and all moneys and investments held in the Pledged Funds including any
contract or any evidence of indebtedness related thereto or other rights of the City to receive any of such
moneys or investments, whether now existing or hereafter coming into existence, and whether now or
hereafter acquired; and,
SECOND GRANTING CLAUSE
Any and all other property or money of every name and nature which is, from time to time
hereafter by delivery or by writing of any kind, conveyed, pledged, assigned or transferred, to the Trustee
as additional security hereunder by the City or by anyone on its behalf or with its written consent, and the
Trustee is hereby authorized to receive any and all such property or money at any and all times and to
hold and apply the same subject to the terms thereof;
TO HAVE AND TO HOLD the Trust Estate, whether now owned or hereafter acquired, unto the
Trustee and its successors or assigns;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the benefit of all
present and future Owners of the Bonds from time to time issued under and secured by this Indenture, and
for enforcement of the payment of the Bonds in accordance with their terms, and for the performance of
and compliance with the obligations, covenants, and conditions of this Indenture;
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PROVIDED, HOWEVER, that if and to the extent Roadway Improvement Special Assessments
have been prepaid, the lien on real property associated with such Roadway Improvement Special
Assessments prepayment shall be released from the Trust Estate and shall no longer constitute a part of
the Trust Estate;
PROVIDED, FURTHER, HOWEVER, if the City or its assigns shall well and truly pay, or cause
to be paid, the principal or Redemption Price of and the interest on all the Bonds at the times and in the
manner stated in the Bonds, according to the true intent and meaning thereof, then this Indenture and the
rights hereby granted shall cease, terminate and be void; otherwise this Indenture is to be and remain in
full force and effect;
IN ADDITION, the Bonds are special obligations of the City payable solely from the Pledged
Revenues, as and to the extent provided in this Indenture. The Bonds do not give rise to a charge against
the general credit or taxing powers of the City and are not payable except as provided in this Indenture.
Notwithstanding anything to the contrary herein, the Owners of the Bonds shall never have the right to
demand payment thereof out of any funds of the City other than the Pledged Revenues. The City shall
have no legal or moral obligation to pay for the Bonds out of any funds of the City other than the Pledged
Revenues.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that all Bonds
issued and secured hereunder are to be issued, authenticated, and delivered and the Trust Estate hereby
created, assigned, and pledged is to be dealt with and disposed of under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses, and purposes as hereinafter expressed, and
the City has agreed and covenanted, and does hereby agree and covenant, with the Trustee and with the
respective Owners from time to time of the Bonds as follows:
ARTICLE 1
DEFINITIONS,FINDINGS AND INTERPRETATION
Section 1.1 Definitions.
Unless otherwise expressly provided or unless the context clearly requires otherwise in this
Indenture, the following terms shall have the meanings specified below:
"Account" means any of the accounts established pursuant to Section 6.1 of this Indenture.
"Additional Interest" means the 0.50% additional interest charged on the Roadway Improvement
Special Assessments pursuant to Section 372,018 of the PID Act and described in Section IV.H of the
Service and Assessment Plan.
"Additional Obligations" means any bonds or obligations, other than the Major Improvement
Bonds and the Roadway Improvement Bonds, and include specifically, any installment contracts,
reimbursement agreements, temporary note or time warrant, secured in whole or in part by an assessment
levied against property within the District in accordance with the PID Act.
"Administrative Fund" means that Fund established by Section 6.1 and administered pursuant to
Section 6.9 hereof.
"Administrative Expenses" means the administrative, organizational, maintenance and operation
costs and expenses associated with, or incident to, the administration, organization, maintenance and
operation of the District, including, but not limited to, the costs or anticipated costs of (i) direct and
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contracted costs incurred by the City, including legal counsel, engineers, accountants, financial advisors,
investment bankers or other consultants and advisors, (ii) creating and organizing the District and
preparing the Assessment Rolls, (iii) computing, levying, collecting and transmitting the Assessments or
the Annual Installments thereof, (iv) maintaining the record of Assessments, including payments,
reallocations and/or cancellations of the Assessments or Annual Installments thereof, (v) investing or
depositing the Assessments or other monies, (vi) complying with the PID Act, arbitrage rebate
requirements and/or securities disclosure requirements, (vii) paying the paying agent/registrar's and
trustee's fees and expenses (including the fees and expenses of its legal counsel) related to the Bonds, and
(viii) City costs of administering the construction of the Authorized Improvements. Administrative
Expenses shall also include the administrative costs and expenses of issuing, making debt service
payments on, and redeeming Bonds; provided, however, that for the avoidance of doubt, Administrative
Expenses do not include payment of the actual principal of, redemption premium, if any, and interest on
Bonds. Annual Administrative Expenses collected and not expended shall be carried forward and applied
to reduce Administrative Expenses in subsequent years to avoid over collection.
"Administrator" means an officer or employee of the City or third party designee of the City who
is not an officer or employee thereof, who shall have the responsibilities provided in the Service and
Assessment Plan, this Indenture, or any other agreement or document approved by the City related to the
duties and responsibilities of the administration of the District.
"Annual Debt Service" means, for each Bond Year, the sum of (i) the interest due on the
Outstanding Bonds in such Bond Year, assuming that the Outstanding Bonds are retired as scheduled
(including by reason of Sinking Fund Installments), and (ii) the principal amount of the Outstanding
Bonds due in such Bond Year(including any Sinking Fund Installments due in such Bond Year).
"Annual Installment" means, collectively, with respect to each Assessed Parcel, each annual
payment of (i) the Roadway Improvement Special Assessments as shown on the Assessment Roll
attached to the Service and Assessment Plan and related to the Roadway Improvements; (ii)
Administrative Expenses, and (iii) the Additional Interest collected pursuant to Section IV.H of the
Service and Assessment Plan and deposited to the Delinquency and Prepayment Reserve Account as
described in Section 6.7 herein.
"Annual Service Plan Update" means the annual review and update of the Service and
Assessment Plan required by the PID Act and the Service and Assessment Plan.
"Applicable Laws" means the PID Act, and all other laws or statutes, rules, or regulations, and
any amendments thereto, of the State of Texas or of the United States, by which the City and its powers,
securities, operations, and procedures are, or may be, governed or from which its powers may be derived.
"Assessed Parcel" means each parcel within the Western Improvement Area of the District upon
which a Roadway Improvement Special Assessment has been levied by the Assessment Ordinance in
accordance with the updated Service and Assessment Plan.
"Assessment Hearing" has the meaning set forth in the recitals.
"Assessment Ordinance" means Ordinance No. =06-2018 adopted by the City Council on June
5, 2018, that levied the Roadway Improvement Special Assessments on the Assessed Parcels in the
Western Improvement Area of the District.
"Assessment Roll" means, collectively, the revised Assessment Roll attached as Appendix A-1
to the updated Service and Assessment Plan or any other Assessment Roll in an amendment or
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supplement to the Service and Assessment Plan or in an Annual Service Plan Update, showing the total
amount of the Roadway Improvement Special Assessment against each Assessed Parcel in the District
related to the Bonds and the Roadway Improvements, as updated, modified, or amended from time to
time in accordance with the terms of the Service and Assessment Plan and the PID Act.
"Authorized Denomination" means $100,000 and any integral multiple of $5,000 in excess of
$100,000, or a smaller denomination, if any, resulting from a partial redemption of Bonds as determined
in accordance with Section 4.5 hereof or as a result of any partial defeasance of the Bonds.
"Bond" means any of the Bonds.
"Bond Counsel" means, collectively, Kelly Hart & Hallman LLP and McCall, Parkhurst &
Horton L.L.P., or any other attorney or firm of attorneys designated by the City that are nationally
recognized for expertise in rendering opinions as to the legality and tax-exempt status of securities issued
by public entities.
"Bond Date" means the date designated as the initial date of the Bonds by Section 3.2(a) of this
Indenture.
"Bond Fund" means the Fund established pursuant to Section 6.1 and administered as provided in
Section 6.4.
"Bond Ordinance" means Ordinance No. ;06-2018 adopted by the City Council on June 5,
2018 authorizing the issuance of the Bonds pursuant to this Indenture.
"Bond Reserve Account" means the Account within the Reserve Fund established pursuant to
Section 6.1.
"Bond Reserve Account Requirement" means the least of: (i) Maximum Annual Debt Service on
the Bonds as of the date of issuance, (ii) 125% of average Annual Debt Service on the Bonds as of the
date of issuance, or (iii) 10% of the proceeds of the Bonds; provided, however, that such amount shall be
reduced by the amount of any transfers made pursuant to Section 6.7(c); and provided further that as a
result of (1) a mandatory sinking fund redemption pursuant to Section 4.2, (2) an optional redemption
pursuant to Section 4.3 or (3) an extraordinary optional redemption pursuant to Section 4.4, the Bond
Reserve Account Requirement shall be reduced by a percentage equal to the pro rata principal amount of
Bonds redeemed by such redemption divided by the total principal amount of the Outstanding Bonds
prior to such redemption. As of the date of delivery of the Bonds, the Bond Reserve Account
Requirement is $463,000 which is an amount equal to Maximum Annual Debt Service on the Bonds as of
the date of issuance.
"Bond Year" means the one-year period beginning on October 1 in each year and ending on
September 30 in the following year.
"Bonds" means the City's bonds authorized to be issued by Section 3.1 of this Indenture entitled
"City of Fort Worth, Texas, Special Assessment Revenue Bonds, Series 2018 (Fort Worth Public
Improvement District No. 17 (Rock Creek Ranch) Roadway Improvement Project)".
"Brewer Road Project" means the Roadway Improvements and the Outside-District Roadway
Improvements.
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"Business Day" means any day other than a Saturday, Sunday or legal holiday in the State of
Texas observed as such by the City or the Trustee, or any national holiday observed by the Trustee.
"Capitalized Interest Account" means the Account within the Bond Fund established pursuant to
Section 6.1.
"Certificate for Payment" means, collectively, the Certificate for Payment: Intra-District Costs
and the Certificate for Payment: Outside-District Costs.
"Certificate for Payment: Intra-District Costs" means a certificate substantially in the form of
Exhibit D-1 attached to the Financing Agreement or otherwise approved by the Developer and the City
Representative executed by a Person approved by the City Representative, delivered to the City
Representative and the Trustee specifying the amount of work performed and the costs to be paid for the
Roadway Improvements and the University Roadway Improvements from the Roadway Improvement
Account, the University Property Improvement Account, the District Project Management Account and/or
the University Project Management Account, as applicable, and specifying amounts to be paid by the City
from the City Contribution: Intra-District, in each case, as further described in the Financing Agreement
and Section 6.13(a).
"Certificate for Payment: Outside-District Costs" means a certificate substantially in the form of
Exhibit D-2 attached to the Financing Agreement or otherwise approved by the Developer, WM CTR,
and the City Representative executed by a Person approved by the City Representative, delivered to the
City Representative and the Trustee specifying the amount of work performed and the costs to be paid for
the Outside-District Roadway Improvements from the Chisholm Trail Ranch Improvement Account, as
applicable, and specifying amounts to be paid by the City from the City Contribution: Outside-District, in
each case, as further described in the Financing Agreement and Section 6.13(b) herein.
"Chisholm Trail Ranch Improvement Account" means the Account within the Developer
Contribution Fund established pursuant to Section 6.1. Money on deposit in the Chisholm Trail Ranch
Improvement Account shall be used solely for the purposes of paying the Outside-District Roadway
Improvements Costs. The Chisholm Trail Ranch Improvement Account shall be funded prior to the
Closing Date in accordance with the terms of the Financing Agreement.
"City Certificate" means a certificate or written instructions signed by the City Representative
and delivered to the Trustee.
"City Contribution" is defined in the Financing Agreement, and means lawfully available funds,
including the proceeds of any tax note or other obligation,of the City to be disbursed by the City pursuant
to the terms of the Financing Agreement, but which are not held under this Indenture and which are not
pledged to the benefit of the Owners as part of the Trust Estate. The City Contribution refers collectively
to the City Contribution: Intra-District and the City Contribution: Outside-District, as such terms are
defined in the Financing Agreement. For the avoidance of doubt, the City Contribution will not be
secured by assessments levied in the District, including the Roadway Improvement Special Assessments.
"City Contribution: Intra-District" is defined in the Financing Agreement and means that portion
of the City Contribution to be applied to the payment of Roadway Improvement Costs.
"City Contribution: Outside-District" is defined in the Financing Agreement and means that
portion of the City Contribution to be applied to the payment of Outside-District Roadway Improvement
Costs.
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"City Representative" means any official or agent of the City authorized by the City Council to
undertake the action referenced herein. As of the date hereof, the City Manager, the Chief Financial
Officer/ Director of Financial Management Services and/or their respective designees are the authorized
City Representatives.
"Closing Date" means the date of the initial delivery of and payment for the Bonds.
"Code" means the Internal Revenue Code of 1986, as amended, including applicable regulations,
published rulings and court decisions.
"Costs of Issuance Account" means the Account within the Project Fund established pursuant to
Section 6.1.
"Defeasance Securities" means Investment Securities then authorized by applicable law for the
investment of funds to defease public securities.
"Delinquency and Prepayment Reserve Account" means the reserve account established in
accordance with Section 6.1.
"Delinquency and Prepayment Reserve Requirement" means an amount equal to 5.5% of the
principal amount of the Outstanding Bonds which will be funded from revenues received from the
payment of Roadway Improvement Special Assessments deposited to the Pledged Revenue Fund.
"Delinquent Collection Costs" means the costs related to the foreclosure on an Assessed Parcel
and the costs of collection of a delinquent Roadway Improvement Special Assessment, including
penalties and reasonable attorney's fees actually paid, but excluding amounts representing interest and
penalty interest.
"Designated Payment/Transfer Office" means (i) with respect to the initial Paying
Agent/Registrar named in this Indenture, the transfer/payment office located in Fort Worth, Texas, or
such other location designated by the Paying Agent/Registrar 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.
"Developer" means Walton Development & Management TX, LLC, a Delaware limited liability
company, and each entity's respective successors and assigns.
"Developer Contribution Fund"means the Fund created pursuant to Section 6.1.
"District Administration Account" means the Account within the Administration Fund
established pursuant to Section 6.1.
"District Project Management Account" means the Account within the Project Fund established
pursuant to Section 6.1.
"DTC" shall mean The Depository Trust Company of New York, New York, or any successor
securities depository.
"DTC Participant" shall mean brokers and dealers, banks, trust companies, clearing corporations,
and certain other organizations on whose behalf DTC was created to hold securities to facilitate the
clearance and settlement of securities transactions among DTC Participants.
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"Eastern Improvement Area" is identified and depicted in Table II-C in the Service and
Assessment Plan.
"Financing Agreement" means that certain Financing Agreement and Limited Amendment to PID
Reimbursement Agreement — City of Fort Worth / Rock Creek Ranch / Chisholm Trail Ranch — Brewer
Road Project, by and among the City, the Developer, and WM CTR,entered into as of May 16, 2018.
"Foreclosure Proceeds" means the proceeds, including interest and penalty interest, received by
the City from the enforcement of the Roadway Improvement Special Assessments against any Assessed
Parcel or Assessed Parcels, whether by foreclosure of lien or otherwise, but excluding and net of all
Delinquent Collection Costs.
"Fund"means any of the funds established pursuant to Section 6.1 of this Indenture.
"Indenture" means this Indenture of Trust as originally executed or as it may be from time to time
supplemented or amended by one or more indentures supplemental hereto and entered into pursuant to the
applicable provisions hereof.
"Independent Financial Consultant" means any consultant or firm of such consultants appointed
by the City who, or each of whom: (i) is judged by the City, as the case may be, to have experience in
matters relating to the issuance and/or administration of the Bonds; (ii) is in fact independent and not
under the domination of the City; (iii) does not have any substantial interest, direct or indirect, with or in
the City, or any owner of real property in the District, or any real property in the District; and (iv) is not
connected with the City as an officer or employee of the City, but who may be regularly retained to make
reports to the City.
"Initial Bond" means the Initial Bond as set forth in Exhibit A to this Indenture.
"Interest Payment Date" means the date or dates upon which interest on the Bonds is scheduled to
be paid until their respective dates of maturity or prior redemption, such dates being on March 1 and
September 1 of each year, commencing March 1, 2019.
"Investment Securities" means those authorized investments described in the City's official
investment policy as approved by the City Council from time to time, and eligible for the investment of
public funds by the Public Funds Investment Act, Chapter 2256, Texas Government Code, as amended.
"Maximum Annual Debt Service" means the largest Annual Debt Service for any Bond Year
after the calculation is made through the final maturity date of any Outstanding Bonds.
"Outstanding" means, as of any particular date when used with reference to Bonds, all Bonds
authenticated and delivered under this Indenture except (i) any Bond that has been canceled by the
Trustee (or has been delivered to the Trustee for cancellation) at or before such date, (ii) any Bond for
which the payment of the principal or Redemption Price of and interest on such Bond shall have been
made as provided in ARTICLE 4, and (iii) any Bond in lieu of or in substitution for which a new Bond
shall have been authenticated and delivered pursuant to Section 3.10 herein.
"Outside-District Roadway Improvements" means those roadway improvements benefitting
property outside of the District and being funded by the Chisholm Trail Ranch Improvement Account and
by the City Contribution: Outside-District. FOR THE AVOIDANCE OF DOUBT, THE PROPERTY
BENEFITTED BY THE OUTSIDE-DISTRICT ROADWAY IMPROVEMENTS IS NON-
BENEFITTED PROPERTY (AS DEFINED IN THE SERVICE AND ASSESSMENT PLAN) AND
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NO ASSESSMENT REVENUES (INCLUDING THE PROCEEDS OF ANY BONDS SECURED
THEREBY) WILL BE USED, DIRECTLY OR INDIRECTLY, TO PAY THE COSTS OF ANY
SUCH IMPROVEMENTS.
"Outside-District Roadway Improvement Costs" means the costs of the Outside-District Roadway
Improvements.
"Owner" means the Person who is the registered owner of a Bond or Bonds, as shown in the
Register, which shall be Cede & Co., as nominee for DTC, so long as the Bonds are in book-entry only
form and held by DTC as securities depository in accordance with Section 3.11 herein.
"Paying Agent/Registrar" means initially the Trustee, or any successor thereto as provided in this
Indenture.
"Person" or "Persons" means any individual, corporation, partnership, limited liability company,
joint venture, association, joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Petitioner" means, collectively, Walton Texas LP, a Texas limited partnership; WUSF 4 Rock
Creek, LP, a Texas limited partnership; and WUSF 5 Rock Creek, LP, a Texas limited partnership.
"PID Act" means Texas Local Government Code, Chapter 372, Improvement Districts in
Municipalities and Counties, Subchapter A, Public Improvement Districts, as amended.
"PID Reimbursement Agreement" means the "PID Reimbursement Agreement - Fort Worth
Public Improvement District No. 17 (Rock Creek Ranch)" between the City and the Developer relating to
the Bonds, effective as of August 15, 2017, as amended in part by the Financing Agreement, which
provides, in part, for the deposit of proceeds from the issuance and sale of the Bonds and the payment of
costs of Roadway Improvements within in the District, the issuance of bonds, the reimbursement of costs
to the Developer from the proceeds of the Bonds for funds advanced by the Developer and used to pay
costs of Roadway Improvements and other matters related thereto.
"Pledged Funds" means the Pledged Revenue Fund, the Bond Fund, the Project Fund, the
Reserve Fund, and the Redemption Fund.
"Pledged Revenue Fund" means that fund established pursuant to Section 6.1 and administered
pursuant to Section 6.3 herein.
"Pledged Revenues" means the sum of (i) Roadway Improvement Assessment Revenue
(excluding the portion of the Annual Installments collected for the payment of Administrative Expenses
and Delinquent Collection Costs), (ii) the moneys held in any of the Pledged Funds, and (iii) any
additional revenues that the City may pledge to the payment of Bonds.
"Prepayment" means the payment of all or a portion of a Roadway Improvement Special
Assessment before the due date thereof.
"Principal and Interest Account" means the Account within the Bond Fund established pursuant
to Section 6.1.
"Project Fund" means that fund established pursuant to Section 6.1 and administered pursuant to
Section 6.5 herein.
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"Purchaser" means the initial purchaser of the Bonds.
"Rebate Amount"has the meaning set forth in section 1.148-1(b) of the Regulations.
"Rebate Fund" means that fund established pursuant to Section 6.1 and administered pursuant to
Section 6.8 herein.
"Record Date" means the close of business on the fifteenth calendar day (whether or not a
Business Day) of the month next preceding an Interest Payment Date.
"Redemption Fund" means that fund established pursuant to Section 6.1 and administered
pursuant to Section 6.6 herein.
"Redemption Price" means, as applicable, the price determined in accordance with the provisions
of Section 4.2, Section 4.3 or Section 4.4, as applicable.
"Register" means the register specified in ARTICLE 3 of this Indenture.
"Reserve Fund" means that fund established pursuant to Section 6.1 and administered in Section
6.7 herein.
"Roadway Improvement Account" means the Account within the Project Fund established
pursuant to Section 6.1.
"Roadway Improvement Assessment Revenue" means monies collected by or on behalf of the
City from any one or more of the following: (i) an Annual Installment, (ii) a Prepayment, and (iii)
Foreclosure Proceeds.
"Roadway Improvement Costs" means the Actual Costs, as defined in the Service and
Assessment Plan (excluding Administrative Expenses), of the Roadway Improvements. FOR THE
AVOIDANCE OF DOUBT, THE ROADWAY IMPROVEMENT COSTS DO NOT INCLUDE
THE OUTSIDE-DISTRICT ROADWAY IMPROVEMENT COSTS.
"Roadway Improvement Special Assessments" means the aggregate Roadway Improvement
Special Assessments (as defined in the Service and Assessment Plan) levied on the Western Improvement
Area shown on the Assessment Roll. The singular of such term means the assessment levied against an
Assessed Parcel, as shown on the Assessment Roll, subject to reallocation upon the subdivision of an
Assessed Parcel or reduction according to the provisions of the Service and Assessment Plan and the PID
Act. FOR THE AVOIDANCE OF DOUBT, THE TERM "ROADWAY IMPROVEMENT
SPECIAL ASSESSMENTS" DOES NOT INCLUDE ANY OTHER SUBSEQUENT
ASSESSMENTS LEVIED IN THE DISTRICT.
"Roadway Improvements" means the improvements authorized by the PID Act which (1) will
benefit the Assessed Parcels, (2) are defined as "Roadway Improvements" in the Service and Assessment
Plan, and (3) are more particularly described in Section III of the Service and Assessment Plan. The
Roadway Improvements are being funded by the Bonds and the City Contribution: Intra-District.
"Service and Assessment Plan" means the document, including the Assessment Roll, which is
attached as Exhibit A to the Assessment Ordinance, as may be updated, amended and supplemented from
time to time.
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"Sinking Fund Installment" means the amount of money to redeem or pay at maturity the
principal of Bonds payable from such installments at the times and in the amounts provided in Section 4.2
herein.
"Stated Maturity" means the date the Bonds, or any portion of the Bonds, as applicable are
scheduled to mature without regard to any redemption or prepayment.
"Supplemental Indenture" means an indenture which has been duly executed by the Trustee and
the City Representative pursuant to an ordinance adopted by the City Council and which indenture
amends or supplements this Indenture, but only if and to the extent that such indenture is specifically
authorized hereunder.
"Tax Certificate"means the Certificate as to Tax Exemption delivered by the City on the Closing
Date for the Bonds setting forth the facts, estimates and circumstances in existence on the Closing Date
which establish that it is not expected that the proceeds of the Bonds will be used in a manner that would
cause the interest on such Bonds to be included in the gross income of the Owners thereof for Federal
income tax purposes.
"Trust Estate" means the Trust Estate described in the granting clauses of this Indenture.
"Trustee" means BOKF, NA, a national banking association, and its successors, and any other
corporation or association that may at any time be substituted in its place, as provided in ARTICLE 9,
such entity to serve as Trustee and Paying Agent/Registrar for the Bonds.
"University Improvement Costs" means the costs of the University Roadway Improvements.
"University Property" is defined in the Service and Assessment Plan.
"University Project Management Account" means the Account within the Developer Contribution
Fund established pursuant to Section 6.1.
"University Property Improvement Account" means the Account within the Developer
Contribution Fund established pursuant to Section 6.1. Money on deposit in the University Property
Improvement Account shall be used solely for the purposes of paying the costs of University Roadway
Improvements associated with the University Property (as defined in the Service and Assessment Plan).
The University Property Improvement Account shall be funded prior to the Closing Date in accordance
with the terms of the Financing Agreement.
"University Roadway Improvements" has the meaning set forth in the Service and Assessment
Plan. FOR THE AVOIDANCE OF DOUBT, THE UNIVERSITY PROPERTY IS NON-
BENEFITTED PROPERTY (AS DEFINED IN THE SERVICE AND ASSESSMENT PLAN) AND
NO ASSESSMENT REVENUES (INCLUDING THE PROCEEDS OF ANY BONDS SECURED
THEREBY) WILL BE USED, DIRECTLY OR INDIRECTLY, TO PAY THE COSTS OF ANY
UNIVERSITY ROADWAY IMPROVEMENTS.
"Western Improvement Area" is identified and depicted in Table Il-B in the Service and
Assessment Plan.
"WM CTR" means WM Sub CTR LP, a Texas limited partnership, which is the entity
responsible for the development of that portion of the Brewer Road Project outside of the District at the
Chisholm Trail Ranch development.
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Section 1.2 Findings.
The declarations, determinations and findings declared, made and found in the preamble to this
Indenture are hereby adopted, restated and made a part of the operative provisions hereof.
Section 1.3 Table of Contents,Titles and Headings.
The table of contents, titles, and headings of the Articles and Sections of this Indenture 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 Indenture or any provision hereof or in ascertaining intent, if any question of
intent should arise.
Section 1.4 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) Words importing persons include any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, unincorporated organization or
government or agency or political subdivision thereof.
(c) Any reference to a particular Article or Section shall be to such Article or Section of this
Indenture unless the context shall require otherwise.
(d) This Indenture and all the terms and provisions hereof shall be liberally construed to
effectuate the purposes set forth herein to sustain the validity of this Indenture.
ARTICLE 2
THE BONDS
Section 2.1 Security for the Bonds.
The Bonds, as to both principal and interest, are and shall be equally and ratably secured by and
payable from a first lien on and pledge of the Trust Estate.
The lien on and pledge of the Pledged Revenues shall be valid and binding and fully perfected
from and after the Closing Date, without physical delivery or transfer of control of the Pledged Revenues,
the filing of this Indenture or any other act; all as provided in Texas Government Code, Chapter 1208, as
amended, which applies to the issuance of the Bonds and the pledge of the Pledged Revenues granted by
the City under this Indenture, and such pledge is therefore valid, effective and perfected. If Texas law is
amended at any time while the Bonds are Outstanding such that the pledge of the Pledged Revenues
granted by the City under this Indenture is to be subject to the filing requirements of Texas Business and
Commerce Code, Chapter 9, as amended, then in order to preserve to the registered owners of the Bonds
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 Texas Business
and Commerce Code, Chapter 9, as amended, and enable a filing to perfect the security interest in said
pledge to occur.
Section 2.2 Limited Obligations.
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The Bonds are special and limited obligations of the City, payable solely from and secured solely
by the Trust Estate, including the Pledged Revenues and the Pledged Funds; and the Bonds and any other
obligations incurred by the City under the terms of this Indenture shall never be payable out of funds
raised or to be raised by taxation or from any other revenues,properties or income of the City.
Section 2.3 Authorization for Indenture.
The terms and provisions of this Indenture and the execution and delivery hereof by the City to
the Trustee have been duly authorized by the Bond Ordinance. The City has ascertained and it is hereby
determined and declared that the execution and delivery of this Indenture is necessary to carry out and
effectuate the purposes set forth in the preambles of this Indenture and that each and every covenant or
agreement herein contained and made is necessary, useful or convenient in order to better secure the
Bonds and is a contract or agreement necessary, useful and convenient to carry out and effectuate the
purposes herein described.
Section 2.4 Contract with Owners and Trustee.
(a) The purposes of this Indenture are to establish a lien and the security for, and to prescribe
the minimum standards for the authorization, issuance, execution and delivery of, the Bonds and to
prescribe the rights of the Owners, and the rights and duties of the City and the Trustee.
(b) In consideration of the purchase and acceptance of any or all of the Bonds by those who
shall purchase and hold the same from time to time, the provisions of this Indenture shall be a part of the
contract of the City with the Owners, and shall be deemed to be and shall constitute a contract among the
City, the Owners, and the Trustee.
ARTICLE 3
AUTHORIZATION; GENERAL TERMS AND PROVISIONS REGARDING THE BONDS
Section 3.1 Authorization.
The Bonds are hereby authorized to be issued and delivered in accordance with the Constitution
and laws of the State of Texas, including particularly the PID Act, The Bonds shall be issued in the
aggregate principal amount of $5,155,000 for the purpose of (i) paying a portion of the Roadway
Improvement Costs, (ii)paying capitalized interest on the Bonds during and for approximately 28 months
after the period of acquisition and construction of the Roadway Improvements, (iii) funding a reserve
fund for payment of principal and interest on the Bonds, and (iv) paying the costs of issuance of the
Bonds. The payment of capitalized interest pursuant to clause (ii) above will not exceed the limitations
contained in Section 1201.042 of the Texas Government Code, as amended.
Section 3.2 Date, Denomination, Maturities, Numbers and Interest.
(a) The Bonds shall be dated June 1, 2018 (the "Bond Date") and shall be issued in
Authorized Denominations. The Bonds shall be in fully registered form, without coupons, and shall be
numbered separately from R-1 upward, except the Initial Bond, which shall be numbered T-1.
(b) Interest shall accrue and be paid on each Bond from the later of the date of initial delivery
of the Bonds or the most recent Interest Payment Date to which interest has been paid or provided for, at
the rate per annum set forth below until the principal thereof has been paid on the maturity date specified
below or otherwise provided for. Such interest shall be payable semiannually on March 1 and September
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I of each year, commencing March 1, 2019 computed on the basis of a 360-day year of twelve 30-day
months.
(c) The Bonds shall mature on September 1 in the years and in the principal amounts and
shall bear interest as set forth below:
Year Principal Amount Interest Rate
2027 $1,605,000 5.000%
2032 $1,550,000 5.000%
2037 $2,000,000 5.000%
(d) The Bonds shall be subject to mandatory sinking fund redemption, optional redemption,
and extraordinary optional redemption prior to maturity as provided in ARTICLE 4 herein, and shall
otherwise have the terms,tenor, denominations, details, and specifications as set forth in the form of Bond
set forth in Exhibit A to this Indenture.
Section 3.3 Conditions Precedent to Delivery of Bonds.
The Bonds shall be executed by the City and delivered to the Trustee, whereupon the Trustee
shall authenticate the Bonds and, upon payment of the purchase price of the Bonds, shall deliver the
Bonds upon the order of the City, but only upon delivery to the Trustee of:
(a) a copy of the executed Assessment Ordinance;
(b) a copy of the executed Bond Ordinance;
(c) a copy of the executed Financing Agreement;
(d) a copy of this Indenture executed by the Trustee and the City; and
(e) a City Certificate directing the authentication and delivery of the Bonds, describing the
Bonds to be authenticated and delivered, designating the purchasers to whom the Bonds are to be
delivered, stating the purchase price of the Bonds and stating that all items required by this Section are
therewith delivered to the Trustee in form and substance satisfactory to the City.
Section 3.4 Medium, Method and Place of Payment.
(a) Principal of and interest on the Bonds shall be paid in lawful money of the United States
of America, as provided in this Section.
(b) Interest on the Bonds shall be payable to the Owners thereof as shown in the Register at
the close of business on the relevant Record Date; provided,however,that in the event of nonpayment of
interest on a scheduled Interest 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 Trustee, 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 fifteen
(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 Owner of a Bond
appearing on the books of the Trustee at the close of business on the last Business Day preceding the date
of mailing such notice.
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(c) Interest on the Bonds shall be paid by check, dated as of the Interest Payment Date, and
sent, first class United States mail, postage prepaid, by the Paying Agent/Registrar to each Owner at the
address of each as such appears in the Register or by such other customary banking arrangement
acceptable to the Paying Agent/Registrar and the Owner; provided,however, the Owner shall bear all risk
and expense of such other banking arrangement.
(d) The principal of each Bond shall be paid to the Owner of such Bond on the due date
thereof, whether at the maturity date or the date of prior redemption thereof, upon presentation and
surrender of such Bond at the Designated Payment/Transfer Office of the Paying Agent/Registrar.
(e) If the date for the payment of the principal of or interest on the Bonds shall be a Saturday,
Sunday, legal holiday, or day on which banking institutions in the city where the Designated
Payment/Transfer Office of the Paying Agent/Registrar is located are required or authorized by law or
executive order to close, the date for such payment shall be the next succeeding day that is not a Saturday,
Sunday, legal holiday, or day on which banking institutions are required or authorized to close, and
payment on such date shall for all purposes be deemed to have been made on the due date thereof as
specified in Section 3.2 of this Indenture.
(f) Unclaimed payments of amounts due hereunder shall be segregated in a special account
and held in trust, uninvested by the Paying Agent/Registrar, for the account of the Owner of the Bonds to
which such unclaimed payments pertain. Subject to any escheat, abandoned property, or similar law of
the State of Texas, any such payments remaining unclaimed by the Owners entitled thereto for two (2)
years after the applicable payment or redemption date shall be applied to the next payment or payments
on such Bonds thereafter coming due and,to the extent any such money remains after the retirement of all
Outstanding Bonds, shall be paid to the City to be used for any lawful purpose. Thereafter, none of the
City, the Paying Agent/Registrar, or any other Person shall be liable or responsible to any holders of such
Bonds for any further payment of such unclaimed moneys or on account of any such Bonds, subject to
any applicable escheat law or similar law of the State of Texas, including the provisions of Title 6 of the
Texas Property Code, as amended.
Section 3.5 Execution and Registration of Bonds.
(a) The Bonds shall be executed on behalf of the City by the Mayor, City Attorney and City
Secretary, 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 Bonds shall have the same effect as if each
of the Bonds had been signed manually and in person by each of said officers, and such facsimile seal on
the Bonds shall have the same effect as if the official seal of the City had been manually impressed upon
each of the Bonds.
(b) In the event that any officer of the City whose manual or facsimile signature appears on
the Bonds ceases to be such officer before the authentication of such Bonds 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 Bond shall be valid or obligatory for any purpose or be
entitled to any security or benefit of this Indenture unless and until there appears thereon the Certificate of
Trustee substantially in the form provided herein,duly authenticated by manual execution by an officer or
duly authorized signatory of the Trustee. It shall not be required that the same officer or authorized
signatory of the Trustee sign the Certificate of Trustee on all of the Bonds. In lieu of the executed
Certificate of Trustee described above, the Initial Bond delivered at the Closing Date shall have attached
thereto the Comptroller's Registration Certificate substantially in the form provided herein, manually
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executed by the Comptroller of Public Accounts of the State of Texas, or by her duly authorized agent,
which certificate shall be evidence that the Initial Bond has been duly approved by the Attorney General
of the State of Texas, is a valid and binding obligation of the City, and has been registered by the
Comptroller of Public Accounts of the State of Texas, including the provisions of Title 6 of the Texas
Property Code, as amended.
(d) On the Closing Date, one Initial Bond representing the entire principal amount of all
Bonds, payable in stated installments to the Purchaser, or its designee, executed with the manual or
facsimile signatures of the Mayor and the City Secretary, approved by the Attorney General, and
registered and manually signed by the Comptroller of Public Accounts, will be delivered to the Purchaser
or its designee. Upon payment for the Initial Bond, the Trustee shall cancel the Initial Bond and deliver
to DTC on behalf of the Purchaser one registered definitive Bond for each year of maturity of the Bonds,
in the aggregate principal amount of all Bonds for such maturity,registered in the name of Cede&Co., as
nominee of DTC.
Section 3.6 Ownership.
(a) The City, the Trustee, the Paying Agent/Registrar and any other Person may treat the
Person in whose name any Bond is registered as the absolute owner of such Bond for the purpose of
making and receiving payment as provided herein (except interest shall be paid to the Person in whose
name such Bond is registered on the relevant Record Date) and for all other purposes, whether or not such
Bond is overdue, and neither the City nor the Trustee, nor the Paying Agent/Registrar, shall be bound by
any notice or knowledge to the contrary.
(b) All payments made to the Owner of any Bond shall be valid and effectual and shall
discharge the liability of the City, the Trustee and the Paying Agent/Registrar upon such Bond to the
extent of the sums paid.
Section 3.7 Registration,Transfer and Exchange.
(a) So long as any Bond remains Outstanding, the City shall cause the Paying
Agent/Registrar to keep at the Designated Payment/Transfer Office a Register in which, subject to such
reasonable regulations as it may prescribe, the Paying Agent/Registrar shall provide for the registration
and transfer of Bonds in accordance with this Indenture. The Paying Agent/Registrar represents and
warrants that it will file and maintain a copy of the Register with the City, and shall cause the Register to
be current with all registration and transfer information as from time to time may be applicable.
(b) A Bond shall be transferable only upon the presentation and surrender thereof at the
Designated Payment/Transfer Office of the Paying Agent/Registrar with such endorsement or other
evidence of transfer as is acceptable to the Paying Agent/Registrar. No transfer of any Bond shall be
effective until entered in the Register.
(c) The Bonds shall be exchangeable upon the presentation and surrender thereof at the
Designated Payment/Transfer Office of the Paying Agent/Registrar for a Bond or Bonds 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 Bond presented for exchange. The Trustee is hereby
authorized to authenticate and deliver Bonds exchanged for other Bonds in accordance with this Section.
(d) The Trustee is hereby authorized to authenticate and deliver Bonds transferred or
exchanged in accordance with this Section. A new Bond or Bonds will be delivered by the Paying
Agent/Registrar, in lieu of the Bond being transferred or exchanged, at the Designated Payment/Transfer
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Office, or sent by United States mail, first class, postage prepaid, to the Owner or his designee. Each
transferred Bond delivered by the Paying Agent/Registrar 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
Indenture to the same extent as the Bond or Bonds in lieu of which such transferred Bond is delivered.
(e) Each exchange Bond 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 Indenture to the
same extent as the Bond or Bonds in lieu of which such exchange Bond is delivered.
(f) No service charge shall be made to the Owner for the initial registration, subsequent
transfer, or exchange for a different Authorized Denomination of any of the Bonds. The Paying
Agent/Registrar, however, may 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, or
exchange of a Bond.
(g) Neither the City nor the Paying Agent/Registrar shall be required to issue, transfer, or
exchange any Bond or portion thereof called for redemption prior to maturity within forty-five (45) days
prior to the date fixed for redemption; provided, however, such limitation shall not be applicable to an
exchange by the Owner of the uncalled principal balance of a Bond.
Section 3.8 Cancellation.
All Bonds paid or redeemed before scheduled maturity in accordance with this Indenture, and all
Bonds in lieu of which exchange Bonds or replacement Bonds are authenticated and delivered in
accordance with this Indenture, shall be cancelled, and proper records shall be made regarding such
payment, redemption, exchange, or replacement. The Paying Agent/Registrar shall dispose of cancelled
Bonds in accordance with the records retention requirements of the Trustee.
Section 3.9 Temporary Bonds.
(a) Following the delivery and registration of the Initial Bond and pending the preparation of
definitive Bonds, the proper officers of the City may execute and, upon the City's request, the Trustee
shall authenticate and deliver, one or more temporary Bonds that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any Authorized Denominations, substantially of the tenor of the
definitive Bonds in lieu of which they are delivered, without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers of the City executing such
temporary Bonds may determine, as evidenced by their signing of such temporary Bonds.
(b) Until exchanged for Bonds in definitive form, such Bonds in temporary form shall be
entitled to the benefit and security of this Indenture.
(c) The City, without unreasonable delay, shall prepare, execute and deliver to the Trustee
the Bonds in definitive form; thereupon, upon the presentation and surrender of the Bond or Bonds in
temporary form to the Paying Agent/Registrar, the Paying Agent/Registrar shall cancel the Bonds in
temporary form and the Trustee shall authenticate and deliver in exchange therefor a Bond or Bonds of
the same maturity and series, in definitive form, in the Authorized Denomination, and in the same
aggregate principal amount, as the Bond or Bonds in temporary form surrendered. Such exchange shall
be made without the making of any charge therefor to any Owner.
Section 3.10 Replacement Bonds.
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(a) Upon the presentation and surrender to the Paying Agent/Registrar of a mutilated Bond,
the Trustee shall authenticate and deliver in exchange therefor a replacement Bond 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 Bond 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 Bond is lost, apparently destroyed or wrongfully taken, the Trustee,
pursuant to the applicable laws of the State of Texas and in the absence of notice or knowledge that such
Bond has been acquired by a bona fide purchaser, shall authenticate and deliver a replacement Bond of
like tenor and principal amount bearing a number not contemporaneously outstanding, provided that the
Owner first complies with the following requirements:
(1) furnishes to the Paying Agent/Registrar satisfactory evidence of his or her
ownership of and the circumstances of the loss,destruction or theft of such Bond;
(2) furnishes such security or indemnity as may be required by the Paying
Agent/Registrar and the Trustee to save them and the City harmless;
(3) pays all expenses and charges in connection therewith, including, but not limited
to, printing costs, legal fees, fees of the Trustee and the Paying Agent/Registrar and any
tax or other governmental charge that is authorized to be imposed; and
(4) satisfies any other reasonable requirements imposed by the City and the Trustee.
(c) After the delivery of such replacement Bond, if a bona fide purchaser of the original
Bond in lieu of which such replacement Bond was issued presents for payment such original Bond, the
City and the Paying Agent/Registrar shall be entitled to recover such replacement Bond 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, the Paying Agent/Registrar or the Trustee in connection therewith.
(d) In the event that any such mutilated, lost, apparently destroyed or wrongfully taken Bond
has become or is about to become due and payable, the Paying Agent/Registrar, in its discretion, instead
of issuing a replacement Bond, may pay such Bond if it has become due and payable or may pay such
Bond when it becomes due and payable.
(e) Each replacement Bond delivered in accordance with this Section shall constitute an
original additional contractual obligation of the City and shall be entitled to the benefits and security of
this Indenture to the same extent as the Bond or Bonds in lieu of which such replacement Bond is
delivered.
Section 3.11 Book-Entry Only System.
(a) The Bonds shall initially be issued in book-entry-only form and shall be deposited with
DTC, which is hereby appointed to act as the securities depository therefor, in accordance with the letter
of representations from the City to DTC. On the Closing Date the definitive Bonds shall be issued in the
form of a single typewritten certificate for each maturity thereof registered in the name of Cede &Co., as
nominee for DTC.
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(b) With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the
City and the Paying Agent/Registrar shall have no responsibility or obligation to any DTC Participant or
to any Person on behalf of whom such a DTC Participant holds an interest in the Bonds. Without limiting
the immediately preceding sentence, the City and the Paying Agent/Registrar shall have no responsibility
or obligation with respect to (i) the accuracy of the records of DTC, Cede &Co. or any DTC Participant
with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC Participant or any other
Person, other than an Owner, as shown on the Register, of any notice with respect to the Bonds, including
any notice of redemption, or (iii) the payment to any DTC Participant or any other Person, other than an
Owner, as shown in the Register of any amount with respect to principal of, premium, if any, or interest
on the Bonds. Notwithstanding any other provision of this Indenture to the contrary, the City and the
Paying Agent/Registrar shall be entitled to treat and consider the Person in whose name each Bond is
registered in the Register as the absolute owner of such Bond for the purpose of payment of principal of,
premium, if any, and interest on Bonds, for the purpose of giving notices of redemption and other matters
with respect to such Bond, for the purpose of registering transfer with respect to such Bond, and for all
other purposes whatsoever. The Paying Agent/Registrar shall pay all principal of, premium, if any, and
interest on the Bonds only to or upon the order of the respective Owners as shown in the Register, as
provided in this Indenture, and all such payments shall be valid and effective to fully satisfy and discharge
the City's obligations with respect to payment of principal of, premium, if any, and interest on the Bonds
to the extent of the sum or sums so paid. No Person other than an Owner, as shown in the Register, shall
receive a Bond certificate evidencing the obligation of the City to make payments of amounts due
pursuant to this Indenture. Upon delivery by DTC to the Paying Agent/Registrar of written notice to the
effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the
provisions in this Indenture with respect to interest checks or drafts being mailed to the registered owner
at the close of business on the relevant Record Date, the word "Cede & Co." in this Indenture shall refer
to such new nominee of DTC.
Section 3.12 Successor Securities Depository: Transfer Outside Book-Entry Only System.
In the event that the City determines that DTC is incapable of discharging its responsibilities
described herein and in the letter of representations from the City to DTC, the City shall (i) appoint a
successor securities depository, qualified to act as such under Section 17A of the Securities and Exchange
Act of 1934, as amended, notify DTC and DTC Participants of the appointment of such successor
securities depository and transfer one or more separate Bonds to such successor securities depository; or
(ii) notify DTC and DTC Participants of the availability through DTC of certificated Bonds and cause the
Paying Agent/Registrar to transfer one or more separate registered Bonds to DTC Participants having
Bonds credited to their DTC accounts. In such event, the Bonds shall no longer be restricted to being
registered in the Register in the name of Cede & Co., as nominee of DTC, but may be registered in the
name of the successor securities depository, or its nominee, or in whatever name or names Owners
transferring or exchanging Bonds shall designate,in accordance with the provisions of this Indenture.
Section 3.13 Payments to Cede &Co.
Notwithstanding any other provision of this Indenture to the contrary, so long as any Bonds are
registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal of,
premium, if any, and interest on such Bonds, and all notices with respect to such Bonds shall be made and
given, respectively, in the manner provided in the blanket letter of representations from the City to DTC.
ARTICLE 4
REDEMPTION OF BONDS BEFORE MATURITY
Section 4.1 Limitation on Redemption.
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The Bonds shall be subject to redemption before their scheduled maturity only as provided in this
ARTICLE 4.
Section 4.2 Mandatory Sinking Fund Redemption.
(a) The Bonds are subject to mandatory sinking fund redemption prior to their respective
maturities and will be redeemed by the City in part at a Redemption Price equal to the principal amount
thereof plus accrued and unpaid interest thereon to the date set for redemption from moneys available for
such purpose in the Principal and Interest Account of the Bond Fund pursuant to ARTICLE 6 of the
Indenture, on the dates and in the Sinking Fund Installment amounts as set forth in the following
schedule:
Term Bonds Maturing September 1,2027
Redemption Date(9/1) Sinking Fund Installment($)
2021 195,000
2022 205,000
2023 220,000
2024 230,000
2025 240,000
2026 250,000
2027* 265,000
* maturity
Term Bonds Maturing September 1,2032
_Redemption Date (9/1) Sinking Fund Installment($)
2028 280,000
2029 295,000
2030 310,000
2031 325,000
2032* 340,000
* maturity
Term Bonds Maturing September 1,2037
R_ edemption Date(9/1) Sinking Fund Installment($)
2033 360,000
2034 380,000
2035 400,000
2036 420,000
2037* 440,000
* maturity
(b) At least forty-five (45) days prior to each sinking fund redemption date, the Trustee shall
select a principal amount of Bonds of such maturity equal to the Sinking Fund Installment amount of such
Bonds to be redeemed, shall call such Bonds for redemption on such scheduled mandatory redemption
date, and shall give notice of such redemption, as provided in Section 4.6.
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(c) The principal amount of Bonds of a stated maturity required to be redeemed on any
redemption date pursuant to subparagraph(a) of this Section shall be reduced, at the option of the City,by
the principal amount of any Bonds of such maturity which, at least forty-five (45) days prior to the
sinking fund redemption date shall have been acquired by the City at a price not exceeding the principal
amount of such Bonds plus accrued unpaid interest to the date of purchase thereof, and delivered to the
Trustee for cancellation.
(d) The principal amount of Bonds required to be redeemed on any redemption date pursuant
to subparagraph (a) of this Section shall be reduced on a pro rata basis among Sinking Fund Installments
by the principal amount of any Bonds which, at least forty-five (45) days prior to the sinking fund
redemption date, shall have been redeemed pursuant to the optional redemption or extraordinary optional
redemption provisions hereof and not previously credited to a mandatory sinking fund redemption.
Section 4.3 Optional Redemption.
Subject to the provisions of Section 4.6(d) and Section 4.6(e), the City reserves the right and
option to redeem Bonds before their scheduled maturity dates, in whole or in part,on any date on or after
September 1, 2027, at the redemption price of 100% of the principal amount plus accrued interest to the
date of redemption.
Section 4.4 Extraordinary Optional Redemption.
Notwithstanding any provision in this Indenture to the contrary, but subject to the provisions of
Section 4.6(d), the City reserves the right and option to redeem Bonds before their respective scheduled
maturity dates, in whole or in part, on any business day, at a Redemption Price of 100% of the principal
amount of such Bonds, or portions thereof, to be redeemed plus accrued interest to the date of redemption
from amounts on deposit in the Redemption Fund as a result of Prepayments (including related transfers
to the Redemption Fund as provided in Section 6.7(c)) or any other transfers to the Redemption Fund
under the terms of this Indenture. The City direction for such redemption shall include details with regard
to a corresponding reduction in the Bond Reserve Account Requirement, as contemplated by the
definition thereof.
Section 4.5 Partial Redem tp ion.
(a) If less than all of the Bonds are to be redeemed pursuant to Section 4.2, Bonds shall be
redeemed by random selection. If less than all of the Bonds within a maturity are to be redeemed, such
Bonds shall be called by random selection. Each Bond shall be treated as representing the number of
Bonds that is obtained by dividing the principal amount of such Bond by the smallest Authorized
Denomination for such Bond.
(b) If less than all of the Bonds are to be redeemed pursuant to either Section 4.3 or Section
4.4, Bonds shall be redeemed by any method selected by the Trustee that results in a pro rata reduction of
the Outstanding maturities. If less than all of the Bonds within a maturity are to be redeemed, such Bonds
shall be called by random selection. Each Bond shall be treated as representing the number of Bonds that
is obtained by dividing the principal amount of such Bond by the smallest Authorized Denomination for
such Bond.
(c) A portion of a single Bond of a denomination equal to or greater than $100,000 may be
redeemed, but only in a principal amount of $100,000 or any integral of $5,000 in excess thereof;
provided, however, that the Trustee shall treat each$5,000 portion of such Bond in excess of$100,000 as
though it were a single bond for purposes of selection for redemption. A portion of a single Bond of a
denomination less than $100,000 may be redeemed, but only in a principal amount of at least $5,000 or
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any integral of $5,000 in excess thereof. After giving effect to a partial redemption described herein, a
Bond in the principal amount equal to the unredeemed portion,but not less than$5,000,may be issued.
(d) Upon surrender of any Bond for redemption in part, the Trustee in accordance with
Section 3.7 of this Indenture, shall authenticate and deliver and exchange the Bond or Bonds in an
aggregate principal amount equal to the unredeemed portion of the Bond so surrendered, such exchange
being without charge.
Section 4.6 Notice of Redemption to Owners.
(a) The Trustee shall give notice of any redemption of Bonds by sending notice by first class
United States mail, postage prepaid, not less than 30 days before the date fixed for redemption, to the
Owner of each Bond or portion thereof to be redeemed, at the address shown in the Register.
(b) The notice shall state the redemption date, the Redemption Price, the place at which the
Bonds are to be surrendered for payment, and, if less than all the Bonds Outstanding are to be redeemed,
and subject to Section 4.5 hereof, an identification of the Bonds or portions thereof to be redeemed, any
conditions to such redemption and that on the redemption date, if all conditions, if any, to such
redemption have been satisfied, such Bond shall become due and payable.
(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.
(d) The City has the right to rescind any optional redemption or extraordinary optional
redemption described in Section 4.3 or Section 4.4 by written notice to the Trustee on or prior to the date
fixed for redemption. Any notice of redemption shall be cancelled and annulled if for any reason funds
are not available and deposited with the Trustee on the Business Day prior to the date fixed for
redemption for the payment in full of the Bonds then called for redemption, and such cancellation shall
not constitute an Event of Default under this Indenture. The Trustee shall mail notice of rescission of
redemption in the same manner notice of redemption was originally provided.
(e) With respect to any optional redemption of the Bonds, unless the Trustee has received
funds sufficient to pay the Redemption Price of the Bonds to be redeemed before giving of a notice of
redemption, the notice may state the City may condition redemption on the receipt of such funds by the
Trustee on or before the date fixed for the redemption, or on the satisfaction of any other prerequisites set
forth in the notice of redemption. If a conditional notice of redemption is given and such prerequisites to
the redemption and sufficient funds are not received, the notice shall be of no force and effect, the City
shall not redeem the Bonds and the Trustee shall give notice, in the manner in which the notice of
redemption was given,that the Bonds have not been redeemed.
Section 4.7 Payment Upon Redemption.
(a) The Trustee shall make provision for the payment of the Bonds to be redeemed on such
date by setting aside and holding in trust an amount from the Redemption Fund or otherwise received by
the Trustee from the City and shall use such funds solely for the purpose of paying the Redemption Price
on the Bonds being redeemed.
(b) Upon presentation and surrender of any Bond called for redemption at the designated
corporate trust office of the Trustee on or after the date fixed for redemption, the Trustee shall pay the
Redemption Price on such Bond to the date of redemption from the moneys set aside for such purpose.
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Section 4.8 Effect of Redemption.
Notice of redemption having been given as provided in, and not otherwise rescinded as provided
by, Section 4.6 of this Indenture, the Bonds or portions thereof called for redemption shall become due
and payable on the date fixed for redemption provided that funds for the payment of the Redemption
Price of such Bonds or the principal of and interest on such Bonds, as applicable, to the date fixed for
redemption are on deposit with the Trustee; thereafter, such Bonds or portions thereof shall cease to bear
interest from and after the date fixed for redemption, whether or not such Bonds are presented and
surrendered for payment on such date.
ARTICLE 5
FORM OF THE BONDS
Section 5.1 Form Generally.
(a) The Bonds, including the Registration Certificate of the Comptroller of Public Accounts
of the State of Texas to appear on the Initial Bond, and the Certificate of the Trustee and the Assignment
to appear on each of the Bonds, (i) shall be substantially in the form set forth in Exhibit A to this
Indenture with such appropriate insertions, omissions, substitutions, and other variations as are permitted
or required by this Indenture, 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 Bonds, as evidenced by their execution thereof.
(b) Any portion of the text of any Bonds may be set forth on the reverse side thereof, with an
appropriate reference thereto on the face of the Bonds.
(c) The definitive Bonds shall be typewritten,printed, lithographed, or engraved, and may be
produced by any combination of these methods or produced in any other similar manner, all as
determined by the officers executing such Bonds, as evidenced by their execution thereof.
(d) The Initial Bond submitted to the Attorney General of the State of Texas may be
typewritten and photocopied or otherwise reproduced.
Section 5.2 CUSIP Registration.
The City may secure identification numbers through the CUSIP Service Bureau Division of
Standard & Poor's Corporation, New York, New York, and may authorize the printing of such numbers
on the face of the Bonds. It is expressly provided, however, that the presence or absence of CUSIP
numbers on the Bonds shall be of no significance or effect as regards the legality thereof; and,none of the
City, the Trustee, or the attorneys approving said Bonds as to legality are to be held responsible for
CUSIP numbers incorrectly printed on the Bonds. The City prohibits any Bond to be issued in a
denomination of less than an Authorized Denomination and further prohibits the assignment of a CUSIP
number to any Bond with a denomination of less than an Authorized Denomination and any attempt to
accomplish either of the foregoing shall be void and of no effect. The Trustee may include in any
redemption notice a statement to the effect that the CUSIP numbers on the Bonds have been assigned by
an independent service and are included in such notice solely for the convenience of the Owners of the
Bonds and that neither the City nor the Trustee shall be liable for any inaccuracies of such numbers.
Section 5.3 Legal Opinion.
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The approving legal opinion of Bond Counsel may be printed on or attached to each Bond over
the certification of the City Secretary of the City,which may be executed in facsimile.
ARTICLE 6
FUNDS AND ACCOUNTS
Section 6.1 Establishment of Funds and Accounts.
(a) Creation of Funds. The following Funds are hereby created and established under this
Indenture:
(1) Pledged Revenue Fund;
(2) Bond Fund;
(3) Project Fund;
(4) Reserve Fund;
(5) Redemption Fund;
(6) Rebate Fund;
(7) Administrative Fund;
(8) Developer Contribution Fund; and
(b) Creation of Accounts.
(1) The following Accounts are hereby created and established within the Bond
Fund:
(A) Capitalized Interest Account; and
(B) Principal and Interest Account.
(2) The following Accounts are hereby created and established within the Reserve
Fund:
(A) Bond Reserve Account; and
(B) Delinquency and Prepayment Reserve Account.
(3) The following Accounts are hereby created and established within the Project
Fund:
(A) Roadway Improvement Account;
(B) Costs of Issuance Account;and
(C) District Project Management Account.
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(4) The following Account is hereby created and established under the
Administrative Fund:
(A) District Administration Account.
(5) The following accounts are hereby created and established under the Developer
Contribution Fund:
(i) University Property Improvement Account;
(ii) Chisholm Trail Ranch Improvement Account; and
(iii) University Project Management Account.
(c) Each Fund and Account created within such Fund shall be only established as needed and
maintained by the Trustee separate and apart from all other funds and accounts of the City. The Pledged
Funds shall constitute trust funds which shall be held in trust by the Trustee as part of the Trust Estate
solely for the benefit of the Owners of the Bonds. The Developer Contribution Fund shall constitute a
separate trust fund which shall be held in trust by the Trustee solely for the benefit of the City. Amounts
on deposit in the Funds and Accounts shall be used solely for the purposes set forth herein. FOR THE
AVOIDANCE OF DOUBT, NEITHER THE DEVELOPER CONTRIBUTION FUND NOR ANY
ACCOUNTS THEREUNDER ARE PLEDGED FUNDS, AND THE AMOUNTS DEPOSITED
THEREUNDER ARE NOT PLEDGED AS SECURITY FOR THE PAYMENT OF THE BONDS.
(d) Interest earnings and profit on each respective Fund and Account established by this
Indenture shall be applied or withdrawn for the purposes of such Fund or Account as specified below.
Section 6.2 Initial Deposits to Funds and Accounts.
(a) The proceeds from the sale of the Bonds shall be paid to the Trustee and deposited or
transferred by the Trustee as follows:
(1) to the Capitalized Interest Account: $564,902.08;
(2) to the Bond Reserve Account: $463,000.00;
(3) to the District Administration Account: $45,000.00;
(4) to the Costs of Issuance Account: $269,099.97;
(5) to the Roadway Improvement Account: $3,664,030.35; and
(6) to the District Project Management Account: $83,070.46.
(b) Funds received from the Developer in the amount of$650,106.96 shall be deposited into
the University Property Improvement Account.
(c) Funds received from the Developer in the amount of$7,885.54 shall be deposited into the
University Project Management Account.
(d) Funds received from WM CTR, or from the Developer on behalf of WM CTR, in the
amount of$635,002.31 shall be deposited into the Chisholm Trail Ranch Improvement Account.
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Section 6.3 Pledged Revenue Fund.
(a) On or before February 1 of each year while the Bonds are Outstanding, beginning
February 1, 2019, the City shall deposit or cause to be deposited the Pledged Revenues (which excludes,
for the avoidance of doubt that portion of the Annual Installments collected for the payment of
Administrative Expenses, and Delinquent Collection Costs, which shall be deposited pursuant to Section
6.9 hereof) into the Pledged Revenue Fund. Specifically, except as set forth in Section 6.3(d), the
Pledged Revenues shall be deposited to the Pledged Revenue Fund to be used in the following order of
priority: (i)first, amounts sufficient to pay debt service on the Bonds next coming due, as described in
Section 6.3(b), (ii) second, to the Bond Reserve Account in an amount to cause the amount in the Bond
Reserve Account to equal the Bond Reserve Account Requirement as described in Section 6.7(a) and
Section 6.7(g), (iii) third, to pay other costs of the Roadway Improvements, and (iv)fourth, to pay other
costs permitted by the PID Act. Notwithstanding the foregoing, if any funds remain on deposit in the
Pledged Revenue Fund after the transfers required by clauses (i) and (ii) above are made, the City shall
have the option, in its sole and absolute discretion, to transfer such excess funds into the Redemption
Fund to redeem Bonds as provided in ARTICLE 4. The City or the Administrator on behalf of the City
shall direct the Trustee with respect to the portions of the Pledged Revenues to be deposited pursuant to
Section 6.3(d) as Additional Interest,Prepayments or Foreclosure Proceeds.
(b) From time to time as needed to pay the obligations relating to the Bonds,but no later than
five (5) Business Days before each Interest Payment Date, the Trustee shall withdraw from the Pledged
Revenue Fund and transfer to the Principal and Interest Account, an amount, taking into account any
amounts then on deposit in such Principal and Interest Account and any expected transfers from the
Capitalized Interest Account to the Principal and Interest Account, such that the amount on deposit in the
Principal and Interest Account equals the principal (including any Sinking Fund Installments)and interest
due on the Bonds on the next Interest Payment Date.
(c) If, after the foregoing transfers and any transfer from the Reserve Fund as provided in
Section 6.7 herein,there are insufficient funds to make the payments provided in paragraph (b) above, the
Trustee shall apply the available funds in the Principal and Interest Account first to the payment of
interest,then to the payment of principal(including any Sinking Fund Installments)on the Bonds.
(d) Notwithstanding Section 6.3(a)above:
(1) the Trustee shall deposit Additional Interest to the Pledged Revenue Fund and
shall transfer such Additional Interest to the Delinquency and Prepayment Reserve
Account or as otherwise directed by Section 6.7(a)hereof;
(2) the Trustee shall deposit Prepayments to the Pledged Revenue Fund and as soon
as practicable after such deposit shall transfer such Prepayments to the Redemption Fund;
(3) the Trustee shall deposit Foreclosure Proceeds to the Pledged Revenue Fund and
as soon as practicable after such deposit shall transfer Foreclosure Proceeds first to the
Reserve Fund, to restore any transfers from the applicable account of the Reserve Fund
made with respect to the Assessed Parcel or Assessed Parcels to which the Foreclosure
Proceeds relate, and second, to the Redemption Fund.
(e) After satisfaction of the requirement to provide for the payment of the principal and
interest on the Bonds and to fund any deficiency that may exist in the Reserve Fund, the City may direct
the Trustee by City Certificate to apply Roadway Improvement Special Assessments for any lawful
purposes permitted by the PID Act for which Roadway Improvement Special Assessments may be paid.
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(f) Any Roadway Improvement Special Assessments remaining after satisfying the
foregoing payments may be used for any lawful purpose for which Roadway Improvement Special
Assessments may be used under the PID Act.
Section 6.4 Bond Fund.
(a) On each Interest Payment Date, the Trustee shall withdraw from the Principal and
Interest Account and transfer to the Paying Agent/Registrar the principal (including any Sinking Fund
Installments) and interest then due and payable on the Bonds, less any amount to be used to pay interest
on the Bonds on such Interest Payment Date from the Capitalized Interest Account as provided below.
(b) If amounts in the Principal and Interest Account are insufficient for the purposes set forth
in paragraph (a) above, the Trustee shall withdraw from the Accounts of the Reserve Fund amounts to
cover the amount of such insufficiency in the order described in Section 6.7(e) hereof. Amounts so
withdrawn from the Reserve Fund shall be deposited in the Principal and Interest Account and transferred
to the Paying Agent/Registrar.
(c) Moneys in the Capitalized Interest Account shall be used for the payment of interest on
the Bonds on the following dates and in the following amounts:
Date Amount
3/1/2019 178,277.08
9/1/2019 128,875.00
3/1/2020 128,875.00
9/1/2020 128,875.00
Any amounts on deposit to the Capitalized Interest Account after the payment of interest on the
dates and in the amounts listed above shall be transferred, at the direction of the City, to the Roadway
Improvement Account of the Project Fund, or to the Redemption Fund to be used to redeem Bonds and
the Capitalized Interest Account shall be closed. The payment of capitalized interest pursuant to clause
(ii) above will not exceed the limitations contained in Section 1201.042 of the Texas Government Code,
as amended.
Section 6.5 Project Fund.
(a) Money on deposit in the Accounts of the Project Fund shall be used for the purposes
specified in Section 3.1 hereof.
(b) Disbursements from the Costs of Issuance Account of the Project Fund shall be made by
the Trustee to pay costs of issuance of the Bonds pursuant to one or more City Certificates.
Disbursements from the Roadway Improvement Account shall be made pursuant to Section 6.13(a).
(c) Except as provided in Section 6.5(e) and Section 6.5(g), money on deposit in the
Roadway Improvement Account shall be used solely to pay the Roadway Improvement Costs.
(d) Except as set forth in Section 6.5(e) and Section 6.5(g), money on deposit in the District
Project Management Account shall be used to pay that portion of the Roadway Improvement Costs
consisting of the applicable portion of the Project Management Fee (as defined in the Service and
Assessment Plan).
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(e) If the City Representative determines in his or her sole discretion that amounts then on
deposit in the Roadway Improvement Account or the District Project Management Account are not
expected to be expended for purposes thereof due to the abandonment, or constructive abandonment, of
the Roadway Improvements, such that, in the opinion of the City Representative, it is unlikely that the
amounts in such Account will ever be expended for the purposes thereof, the City Representative shall
file a City Certificate with the Trustee which identifies the amounts then on deposit in the Roadway
Improvement Account or District Project Management Account, as applicable, that are not expected to be
used for purposes thereof. If such City Certificate is so filed, the amounts identified on the City
Certificate on deposit in the Roadway Improvement Account and/or the District Project Management
Account, as applicable, shall be transferred to the Redemption Fund to redeem Bonds on the earliest
practicable date after notice of redemption has been provided in accordance with the Indenture.
(f) In making any determination pursuant to this Section, the City Representative may
conclusively rely upon a certificate of an Independent Financial Consultant.
(g) Upon the filing of a City Certificate stating that all Roadway Improvements have been
completed and that all Roadway Improvement Costs have been paid, or that any such costs are not
required to be paid from the Roadway Improvement Account and/or the District Project Management
Account pursuant to a Certificate for Payment, the Trustee (i) shall transfer the amount, if any, remaining
within such Account to the Principal and Interest Account or to the Redemption Fund as directed by the
City Representative in a City Certificate filed with the Trustee, and (ii) shall close the Project Fund.
(h) Upon a determination by the City Representative that all costs of issuance of the Bonds
have been paid, any amounts remaining in the Costs of Issuance Account shall be transferred to the
Roadway Improvement Account and used to pay Roadway Improvement Costs or to the Principal and
Interest Account of the Bond Fund and used to pay interest on the Bonds, as directed by the City in a City
Certificate filed with the Trustee, and the Costs of Issuance Account shall be closed.
Section 6.6 Redemption Fund.
The Trustee shall cause to be deposited to the Redemption Fund from the Pledged Revenue Fund
an amount sufficient to redeem Bonds as provided in Section 4.3 and Section 4.4 on the dates specified
for redemption as provided in Section 4.3 and Section 4.4. Amounts on deposit in the Redemption Fund
shall be used and withdrawn by the Trustee to redeem Bonds as provided in Article IV.
Section 6.7 Reserve Fund.
(a) The City agrees with the Owners of the Bonds to accumulate, and when accumulated
maintain in the Bond Reserve Account, an amount equal to not less than the Bond Reserve Account
Requirement. All amounts deposited in the Bond Reserve Account shall be used and withdrawn by the
Trustee for the purpose of making transfers to the Principal and Interest Account as provided in this
Indenture. The Trustee will transfer from the Pledged Revenue Fund on March 1 of each year,
commencing March 1, 2019, an amount equal to the Additional Interest into the Delinquency and
Prepayment Reserve Account until the Delinquency and Prepayment Reserve Requirement has been
accumulated in the Delinquency and Prepayment Reserve Account; provided, however, that at any time
the amount on deposit in the Delinquency and Prepayment Reserve Account is less than the Delinquency
and Prepayment Reserve Requirement,the Trustee shall resume depositing the Additional Interest into the
Delinquency and Prepayment Reserve Account until the Delinquency and Prepayment Reserve
Requirement has accumulated in the Delinquency and Prepayment Reserve Account. Whenever, on any
Interest Payment Date, or on any other date at the written request of the City Representative, the amounts
on deposit in the Delinquency and Prepayment Reserve Account exceed the Delinquency and Prepayment
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Reserve Requirement,the Trustee shall provide written notice to the City of the amount of the excess (the
"Excess Delinquency and Prepayment Reserve Amount") by use of an online portfolio access. If there is
any deficiency in the Bond Reserve Account, the Excess Delinquency and Prepayment Reserve Amount
will be deposited into the Bond Reserve Account until the amount in the Bond Reserve Account is funded
to the Bond Reserve Account Requirement. If there is no deficiency in the Bond Reserve Account, the
Excess Delinquency and Prepayment Reserve Amount shall be transferred, at the direction of the City
pursuant to a City Certificate, to the Administrative Fund for the payment of Administrative Expenses or
to the Redemption Fund to redeem Bonds pursuant to Section 4.4 hereof. In the event that the Trustee
does not receive a City Certificate directing the transfer of the Excess Delinquency and Prepayment
Reserve Amount to the Administrative Fund within 45 days of providing notice to the City of such Excess
Delinquency and Prepayment Reserve Amount, the Trustee shall transfer the Excess Delinquency and
Prepayment Reserve Amount to the Redemption Fund to redeem Bonds pursuant to Section 4.4 hereof.
(b) Whenever a transfer is made from the Reserve Fund to the Bond Fund due to a deficiency
in the Bond Fund, the Trustee shall provide written notice thereof to the City, specifying the amount
withdrawn and the source of said funds.
(c) Whenever Bonds are to be redeemed with the proceeds of Prepayments pursuant to
Section 4.4, a proportionate amount in the Bond Reserve Account shall be transferred on the Business
Day prior to the redemption date by the Trustee to the Redemption Fund to be applied to the redemption
of the Bonds as detailed in a City Certificate. The amount so transferred from the Bond Reserve Account
shall be equal to a percentage of the amount of the Bonds redeemed with such percentage equal to the
lesser of: (i) the amount required to be in the Bond Reserve Account, as a percentage of the Outstanding
Bonds prior to the redemption, and (ii) the amount actually in the Bond Reserve Account, as a percentage
of the Outstanding Bonds prior to the redemption. If after such transfer, and after applying investment
earnings on the Prepayment toward payment of accrued interest, there are insufficient funds to pay the
principal amount plus accrued and unpaid interest on such Bonds to the date fixed for redemption of the
Bonds to be redeemed as a result of such Prepayment, the Trustee shall transfer an amount equal to the
shortfall from the Delinquency and Prepayment Reserve Account to the Redemption Fund to be applied
to the redemption of the Bonds.
(d) Whenever, on any Interest Payment Date, or on any other date at the written request of a
City Representative, the amount in the Bond Reserve Account exceeds the Bond Reserve Account
Requirement, the Trustee shall provide written notice to the City Representative of the amount of the
excess. Such excess shall be transferred to the Principal and Interest Account to be used for the payment
of interest on the Bonds on the next Interest Payment Date in accordance with Section 6.4 hereof, unless
within thirty days of such notice to the City Representative, the Trustee receives a City Certificate
instructing the Trustee to apply such excess: (i) to pay amounts due under Section 6.8 hereof, (ii) to the
Administrative Fund in an amount not more than the Administrative Expenses for the Bonds, (iii) to the
Roadway Improvement Account if such application and the expenditure of funds is expected to occur
within three years of the date hereof, or (iv) to the Redemption Fund to be applied to a redemption of
Bonds.
(e) Whenever, on any Interest Payment Date, the amount on deposit in the Bond Fund is
insufficient to pay the debt service on the Bonds due on such date, the Trustee shall transfer first from the
Delinquency and Prepayment Reserve Account and second from the Bond Reserve Account to the Bond
Fund the amounts necessary to cure such deficiency.
(f) At the final maturity of the Bonds, the amount on deposit in the Bond Reserve Account
and the Delinquency and Prepayment Reserve Account shall be transferred to the Principal and Interest
Account and applied to the payment of the principal of the Bonds.
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(g) If, after a Reserve Fund withdrawal, the amount on deposit in the Bond Reserve Account
is less than the Bond Reserve Account Requirement, the Trustee shall transfer from the Pledged Revenue
Fund to the Bond Reserve Account the amount of such deficiency, in accordance with Section 6.3(a), but
only to the extent that such amount is not required for the timely payment of principal,interest, or Sinking
Fund Installments.
(h) If the amount held in the Reserve Fund, together with the amounts held in the Pledged
Revenue Fund, Bond Fund and Redemption Fund, is sufficient to pay the principal amount of all
Outstanding Bonds on the next Interest Payment Date, together with the unpaid interest accrued on such
Bonds as of such Interest Payment Date, the moneys shall be transferred to the Redemption Fund and
thereafter used to redeem all Bonds as of such Interest Payment Date.
Section 6.8 Rebate Fund: Rebate Amount.
(a) There is hereby established a special fund of the City to be designated "City of Fort
Worth, Texas, Special Assessments Revenue Bonds Rebate Fund" (the "Rebate Fund") to be held by the
Trustee in accordance with the terms and provisions of this Indenture. Amounts on deposit in the Rebate
Fund shall be used solely for the purpose of paying amounts due the United States Government in
accordance with the Code. The Rebate Fund shall not be part of the Trust Estate and is not security for
the Bonds.
(b) In order to assure that Rebate Amount is paid to the United States rather than to a third
party, investments of funds on deposit in the Rebate Fund shall be made as directed by the City in a
written direction and in accordance with the Code and the Tax Certificate.
(c) The Trustee conclusively shall be deemed to have complied with the provisions of this
Section and Section 7.50) and shall not be liable or responsible if it follows the instructions of the City
and shall not be required to take any action under this Section and Section 7.50) in the absence of written
instructions from the City.
(d) If, on the date of each annual calculation, the amount on deposit in the Rebate Fund
exceeds the Rebate Amount, the City may direct the Trustee, pursuant to a City Certificate, to transfer the
amount in excess of the Rebate Amount to the Bond Fund.
Section 6.9 Administrative Fund.
(a) The City shall deposit or cause to be deposited to the District Administration Account of
the Administrative Fund the amounts collected each year to pay Administrative Expenses and Delinquent
Collection Costs. The City or the Administrator on behalf of the City shall direct the Trustee with respect
to the portions of the Annual Installments collected for the payment of Administrative Expenses and
Delinquent Collection Costs to be deposited pursuant to this section.
(b) Moneys in the District Administration Account shall be held by the Trustee separate and
apart from the other Funds created and administered hereunder and used as directed by a City Certificate
solely for the purposes set forth in the Service and Assessment Plan, including payment of Administrative
Expenses and Delinquent Collection Costs. The Administrative Fund shall not be part of the Trust Estate
and is not security for the Bonds.
Section 6.10 Developer Contribution Fund.
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(a) University Property Improvement Account. Money on deposit in the University Property
Improvement Account and the University Project Management Account of the Developer Contribution
Fund shall be used solely for the purposes of paying the University Improvement Costs (as each term is
defined in the Service and Assessment Plan) and shall be disbursed pursuant to Section 6.13(a).
(b) Chisholm Trail Ranch Improvement Account. Money on deposit in the Chisholm Trail
Ranch Improvement Account of the Developer Contribution Fund shall be used solely for the purposes of
paying the Outside-District Roadway Improvement Costs and shall be disbursed pursuant to Section
6.13(b).
(c) If the City Representative determines in his or her sole discretion that amounts then on
deposit in the University Property Improvement Account, the Chisholm Trail Ranch Improvement
Account and/or the University Project Management Account are not expected to be expended for
purposes thereof due to the abandonment, or constructive abandonment, of the University Roadway
Improvements and/or the Outside-District Roadway Improvements, as applicable, such that, in the
opinion of the City Representative, it is unlikely that the amounts in the such Account(s) will ever be
expended for the purposes thereof, the City Representative shall file a City Certificate with the Trustee
which identifies the amounts then on deposit such Account(s) that are not expected to be used for
purposes thereof. If such City Certificate is so filed, the amounts identified on the City Certificate on
deposit in such Account(s) shall be transferred and released pursuant to Section 6.10(d).
(d) Any amounts in the University Property Improvement Account, the University Project
Management Account and/or the Chisholm Trail Ranch Improvement Account to be transferred and
released pursuant to Section 6.10(c), Section 6.10(e), or Section 6.10(f) shall be irrevocably and
unconditionally transferred and released to the Developer, or to the Developer's successors and assigns or
designees as identified in a written notice from the Developer to the Trustee and the City. The City and
the Trustee shall solely and conclusively rely as to payment of amounts released from the University
Property Improvement Account, the University Project Management Account and/or the Chisholm Trail
Ranch Improvement Account, as applicable, on any such written notice from the Developer as to their
successors and assigns or designees. The City shall provide written notice of the release to the Trustee
and Developer, or to the Developer's successors and assigns, and the amount payable to the Developer, or
its successors and assigns.
(e) Upon the filing of a City Certificate stating that all University Roadway Improvements
have been completed and that all costs thereof have been paid, or that any such costs are not required to
be paid from the University Property Improvement Account and/or the University Project Management
Account pursuant to a Certificate for Payment, the Trustee (i) shall transfer and release the amounts
remaining in the University Property Improvement Account and/or the University Project Management
Account pursuant to Section 6.10(d), and (ii) shall close the Developer Contribution Fund at such time as
no funds remain in the remaining Accounts of the Developer Contribution Fund.
(f) Upon the filing of a City Certificate stating that all Outside-District Roadway
Improvements have been completed and that all costs thereof have been paid, or that any such costs are
not required to be paid from the Chisholm Trail Ranch Improvement Account pursuant to a Certificate for
Payment, the Trustee (i) shall transfer and release the amounts remaining in the Chisholm Trail Ranch
Improvement Account pursuant to Section 6.10(d), and (ii) shall close the Developer Contribution Fund
at such time as no funds remain in the remaining Accounts of the Developer Contribution Fund.
(g) In making any determination pursuant to this Section 6.10, the City Representative may
conclusively rely upon a certificate of an Independent Financial Consultant
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Section 6.11 Investment of Funds.
(a) Money in any Fund established pursuant to this Indenture shall be invested by the Trustee
as directed by the City pursuant to a City Certificate filed with the Trustee at least two (2) days in advance
of the making of such investment in Federated Government Obligations Fund, CUSIP 60934N153;
provided that all such deposits and investments shall be made in such manner (which may include
repurchase agreements for such investment with any primary dealer of such agreements) that the money
required to be expended from any Fund will be available at the proper time or times set forth in this
Indenture. Such investments shall be valued each year in terms of current market value as of September
30. For purposes of maximizing investment returns, to the extent permitted by law, money in such Funds
may be invested in common investments of the kind described above, or in a common pool of such
investments which shall be kept and held at an official depository bank, which shall not be deemed to be
or constitute a commingling of such money or funds provided that safekeeping receipts or certificates of
participation clearly evidencing the investment or investment pool in which such money is invested and
the share thereof purchased with such money or owned by such Fund are held by or on behalf of each
such Fund. If necessary, such investments shall be promptly sold to prevent any default. No oral
investment instructions will be accepted by the Trustee, unless confirmed in a writing (with e-mail being
sufficient)from an authorized representative of the City.
(b) Obligations purchased as an investment of moneys in any Fund shall be deemed to be
part of such Fund or Account, subject, however, to the requirements of this Indenture for transfer of
interest earnings and profits resulting from investment of amounts in Funds and Accounts. Whenever in
this Indenture any moneys are required to be transferred by the City to the Trustee, such transfer may be
accomplished by transferring a like amount of Investment Securities.
(c) The Trustee and its affiliates may act as sponsor, advisor, depository, principal or agent
in the acquisition or disposition of any investment. The Trustee shall not incur any liability for losses
arising from any investments made pursuant to this Section. The Trustee shall not be required to
determine the suitability or legality of any investments.
(d) Investments in any and all Funds and Accounts may be commingled in a separate fund or
funds for purposes of making, holding and disposing of investments, notwithstanding provisions herein
for transfer to or holding in or to the credit of particular Funds or Accounts of amounts received or held
by the Trustee hereunder, provided that the Trustee shall at all times account for such investments strictly
in accordance with the Funds and Accounts to which they are credited and otherwise as provided in this
Indenture.
(e) By providing access to the City of its online portfolio system, the Trustee will furnish the
City monthly cash transaction statements which include detail for all investment transactions made by the
Trustee hereunder; and, the Trustee is not required to provide brokerage confirmations so long as the
Trustee is providing such online access.
(f) The Trustee may conclusively rely on City Certificates pursuant to Section 6.10(a) that
such an investment will comply with the City's investment policy and with the Public Funds Investment
Act,Chapter 2256,Texas Government Code, as amended.
Section 6.12 Security of Funds.
All Funds heretofore created or reaffirmed,to the extent not invested as herein permitted, shall be
secured in the manner and to the fullest extent required by law for the security of public funds, and such
Funds shall be used only for the purposes and in the manner permitted or required by this Indenture.
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Section 6.13 Disbursements to Brewer Road Project Costs.
(a) Disbursements to Pay Roadway Improvement Costs and University Roadway
Improvement Costs. Disbursements from (i) the Roadway Improvement Account and the District Project
Management Account to pay Roadway Improvement Costs and (ii) the University Property Improvement
Account and the University Project Management Account to pay the University Roadway Improvement
Costs, shall in each case be made by the Trustee upon receipt by the Trustee of a properly executed and
completed Certificate for Payment: Intra-District Costs. The disbursement of such funds pursuant to such
Certificate for Payment shall be pursuant to and accordance with the disbursement procedures described
in the Financing Agreement. Such provisions and procedures related to such disbursement contained in
the Financing Agreement, and no other provisions of the Financing Agreement, are herein incorporated
by reference and deemed set forth herein in full.
(b) Disbursements to Pay Outside-District Roadway Improvement Costs. Disbursements
from the Chisholm Trail Ranch Improvement Account to pay Outside-District Roadway Improvement
Costs shall be made by the Trustee upon receipt by the Trustee of a properly executed and completed
Certificate for Payment: Outside-District Costs. The disbursement of such funds pursuant to such
Certificate for Payment shall be pursuant to and accordance with the disbursement procedures described
in the Financing Agreement. Such provisions and procedures related to such disbursement contained in
the Financing Agreement, and no other provisions of the Financing Agreement, are herein incorporated
by reference and deemed set forth herein in full.
ARTICLE 7
COVENANTS
Section 7.1 Confirmation of Special Assessments.
The City hereby confirms, covenants, and agrees that, in the Assessment Ordinance, it has levied
the Roadway Improvement Special Assessments against the respective Assessed Parcels from which the
Pledged Revenues will be collected and received.
Section 7.2 Collection and Enforcement of Special Assessments.
(a) For so long as any Bonds are Outstanding and amounts are due the Developer to
reimburse it for its funds it has contributed to pay costs of the Roadway Improvements, the City
covenants, agrees and warrants that it will take and pursue all actions permissible under Applicable Laws
to cause the Roadway Improvement Special Assessments to be collected and the liens thereof enforced
continuously, in the manner and to the maximum extent permitted by Applicable Laws, and, to the extent
permitted by Applicable Laws, to cause no reduction, abatement or exemption in the Roadway
Improvement Special Assessments.
(b) The City will determine or cause to be determined, no later than March 1 of each year,
whether or not any Annual Installment is delinquent and, if such delinquencies exist, the City will order
and cause to be commenced as soon as practicable any and all appropriate and legally permissible actions
to obtain such Annual Installment, and any delinquent charges and interest thereon, including diligently
prosecuting an action in district court to foreclose the currently delinquent Annual Installment.
Notwithstanding the foregoing, the City shall not be required under any circumstances to purchase or
make payment for the purchase of the delinquent Roadway Improvement Special Assessment or the
corresponding Assessed Parcel.
Section 7.3 Against Encumbrances.
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(a) Other than obligations issued to refund all or a portion of the Bonds, the City shall not
create and, to the extent Pledged Revenues are received, shall not suffer to remain, any lien, encumbrance
or charge upon the Pledged Revenues, other than that specified in Section 9.6 of this Indenture, or upon
any other property pledged under this Indenture, except the pledge created for the security of the Bonds,
and other than a lien or pledge subordinate to the lien and pledge of such property related to the Bonds.
(b) So long as Bonds are Outstanding hereunder, the City shall not issue any bonds, notes or
other evidences of indebtedness other than the Bonds and bonds issued to refund all or a portion of the
Bonds secured by any pledge of or other lien or charge on the Pledged Revenues or other property
pledged under this Indenture, other than a lien or pledge subordinate to the lien and pledge of such
property related to the Bonds.
Section 7.4 Records, Accounts,Accounting Reports.
The City hereby covenants and agrees that so long as any of the Bonds or Outstanding Bonds or
any interest thereon remain outstanding and unpaid, and the obligation to the Developer to reimburse it
for funds it has contributed to pay costs of the Roadway Improvements remain outstanding and unpaid, it
will keep and maintain a proper and complete system of records and accounts pertaining to the Roadway
Improvement Special Assessments. The Trustee and holder or holders of any Bonds or any duly
authorized agent or agents of such holders shall have the right at all reasonable times to inspect all such
records, accounts, and data relating thereto, upon written request to the City by the Trustee or duly
authorized representative, as applicable. The City shall provide the Trustee or duly authorized
representative, as applicable, an opportunity to inspect such books and records relating to the Bonds
during the City's regular business hours and on a mutually agreeable date not later than thirty days after
the City receives such request.
Section 7.5 Covenants to Maintain Tax-Exempt Status.
(a) Definitions. When used in this Section, the following terms shall have the following
meanings:
"Code" means the Internal Revenue Code of 1986, as amended.
"Computation Date" has the meaning set forth in section 1.148-1(b) of
the Regulations.
"Gross Proceeds" means any proceeds as defined in section 1.148-1(b)
of the Regulations, and any replacement proceeds as defined in section
1.148-1(c)of the Regulations,of the Bonds.
"Investment" has the meaning set forth in section 1.148-1(b) of the
Regulations.
"Nonpurpose Investment" means any investment property, as defined in
section 148(b) of the Code, in which Gross Proceeds of the Bonds are
invested and which is not acquired to carry out the governmental
purposes of the Bonds.
"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
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applicable to the Bonds. Any reference to any specific Regulation shall
also mean, as appropriate, any proposed, temporary or final Income Tax
Regulation designed to supplement, amend or replace the specific
Regulation referenced.
"Yield" of(1) any Investment has the meaning set forth in section 1.148-
5 of the Regulations; and (2) the Bonds has the meaning set forth in
section 1.148-4 of the Regulations.
(b) Not to Cause Interest to Become Taxable. The City shall not use, permit the use of, or
omit to use Gross Proceeds or any other amounts (or any property the acquisition, construction or
improvement of which is to be financed directly or indirectly with Gross Proceeds) in a manner which if
made or omitted, respectively, would cause the interest on any Bond to become includable in the gross
income, as defined in section 61 of the Code, of the owner thereof for federal income tax purposes.
Without limiting the generality of the foregoing, unless and until the City receives a written opinion of
counsel nationally recognized in the field of municipal bond law to the effect that failure to comply with
such covenant will not adversely affect the exemption from federal income tax of the interest on any
Bond,the City shall comply with each of the specific covenants in this Section.
(c) No Private Use or Private Payments. Except as permitted by section 141 of the Code and
the Regulations and rulings thereunder, the City shall at all times prior to the last Stated Maturity of
Bonds:
(1) exclusively own, operate and possess all property the acquisition, construction or
improvement of which is to be financed or refinanced directly or indirectly with Gross
Proceeds of the Bonds, and not use or permit the use of such Gross Proceeds (including
all contractual arrangements with terms different than those applicable to the general
public) or any property acquired, constructed or improved with such Gross Proceeds in
any activity carried on by any person or entity (including the United States or any agency,
department and instrumentality thereof) other than a state or local government, unless
such use is solely as a member of the general public; and
(2) not directly or indirectly impose or accept any charge or other payment by any
person or entity who is treated as using Gross Proceeds of the Bonds 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.
(1) Except to the extent permitted by section 141 of the Code and the Regulations
and rulings thereunder,_the City shall not use Gross Proceeds of the Bonds to make or
finance loans to any person or entity other than a state or local government. For purposes
of the foregoing covenant, such Gross Proceeds are considered to be "loaned"to a person
or entity if: (1) property acquired, constructed or improved with such Gross Proceeds is
sold or leased to such person or entity in a transaction which creates a debt for federal
income tax purposes; (2) capacity in or service from such property is committed to such
person or entity under a take-or-pay, output or similar contract or arrangement; or (3)
indirect benefits, or burdens and benefits of ownership, of such Gross Proceeds or any
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property acquired, constructed or improved with such Gross Proceeds are otherwise
transferred in a transaction which is the economic equivalent of a loan.
(2) The City covenants and agrees that the levied Roadway Improvement Special
Assessments will meet the requirements of the "tax assessment loan exception" within
the meaning of section 1.141-5(d) of the Regulations on the date the Bonds are delivered
and will ensure that the Roadway Improvement Special Assessments continue to meet
such requirements for so long as the Bonds are outstanding hereunder.
(e) Not to Invest at Higher Yield. Except to the extent permitted by section 148 of the Code
and the Regulations and rulings thereunder,the City shall not at any time prior to the final Stated Maturity
of the Bonds directly or indirectly invest Gross Proceeds in any Investment (or use Gross Proceeds to
replace money so invested) if, as a result of such investment, the Yield of all Investments acquired with
Gross Proceeds (or with money replaced thereby), whether then held or previously disposed of, exceeds
the Yield of the Bonds.
(f) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the Code
and the Regulations and rulings thereunder,the City shall not take or omit to take any action which would
cause the Bonds to be federally guaranteed within the meaning of section 149(b) of the Code and the
Regulations and rulings thereunder.
(g) Information Report. The City shall timely file the information required by section 149(e)
of the Code with the Secretary of the Treasury on Form 8038-G or such other form and in such place as
the Secretary may prescribe.
(h) Allocation Of, and Limitation On, Expenditures for the Roadway Improvements. The
City covenants to account for the expenditure of sale proceeds and investment earnings to be used for the
Roadway Improvements on its books and records in accordance with the requirements of the Code. The
City recognizes that in order for the proceeds to be considered used for the reimbursement of costs, the
proceeds must be allocated to expenditures within 18 months of the later of the date that (1) the
expenditure is made, or (2) the Roadway Improvements are completed; but in no event later than three
years after the date on which the original expenditure is paid. The foregoing notwithstanding, the City
recognizes that in order for proceeds to be expended under the Internal Revenue Code, the sale proceeds
or investment earnings must be expended no more than 60 days after the earlier of (1) the fifth
anniversary of the delivery of the Bonds, or (2) the date the Bonds are retired. The City agrees to obtain
the advice of nationally-recognized bond counsel if such expenditure fails to comply with the foregoing to
assure that such expenditure will not adversely affect the tax-exempt status of the Bonds. For purposes
hereof, the City shall not be obligated to comply with this covenant if it obtains an opinion that such
failure to comply will not adversely affect the excludability for federal income tax purposes from gross
income of the interest.
(i) Disposition of Roadway Improvements. The City covenants that the property
constituting the Roadway Improvements will not be sold or otherwise disposed in a transaction resulting
in the receipt by the City of cash or other compensation, unless the City obtains an opinion of nationally-
recognized bond counsel that such sale or other disposition will not adversely affect the tax-exempt status
of the Bonds. For purposes of the foregoing, the portion of the property comprising personal property and
disposed in the ordinary course shall not be treated as a transaction resulting in the receipt of cash or other
compensation. For purposes hereof, the City shall not be obligated to comply with this covenant if it
obtains an opinion that such failure to comply will not adversely affect the excludability for federal
income tax purposes from gross income of the interest.
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0) Rebate of Arbitrage Profits. Except to the extent otherwise provided in section 148(f) of
the Code and the Regulations and rulings thereunder:
(1) The City shall account for all Gross Proceeds(including all receipts,expenditures
and investments thereof) on its books of account separately and apart from all other funds
(and receipts, expenditures and investments thereof) and shall retain all records of
accounting for at least six years after the day on which the last outstanding Bond is
discharged. However, to the extent permitted by law, the City may commingle Gross
Proceeds of the Bonds with other money of the City, provided that the City separately
accounts for each receipt and expenditure of Gross Proceeds and the obligations acquired
therewith.
(2) Not less frequently than each Computation Date, the City shall calculate the
Rebate Amount in accordance with rules set forth in section 148(f) of the Code and the
Regulations and rulings thereunder. The City shall maintain such calculations with its
official transcript of proceedings relating to the issuance of the Bonds until six years after
the final Computation Date.
(3) As additional consideration for the purchase of the Bonds by the Purchaser and
the loan of the money represented thereby and in order to induce such purchase by
measures designed to insure the excludability of the interest thereon from the gross
income of the owners thereof for federal income tax purposes, the City shall, pursuant to
a City Certificate, direct the Trustee to transfer to the Rebate Fund from the funds or
subaccounts designated in such City Certificate and direct the Trustee to pay to the
United States from the Rebate Fund the amount that when added to the future value of
previous rebate payments made for the Bonds equals (i) in the case of a Final
Computation Date as defined in Section 1.148-3(e)(2) of the Regulations, one hundred
percent (100%) of the Rebate Amount on such date; and (ii) in the case of any other
Computation Date, ninety percent (90%) of the Rebate Amount on such date. In all
cases, the rebate payments shall be made at the times,in the installments,to the place and
in the manner as is or may be required by section 148(f) of the Code and the Regulations
and rulings thereunder, and shall be accompanied by Form 8038-T or such other forms
and information as is or may be required by Section 148(f) of the Code and the
Regulations and rulings thereunder.
(4) The City shall exercise reasonable diligence to assure that no errors are made in
the calculations and payments required by paragraphs (ii) and (iii), and if an error is
made, to discover and promptly correct such error within a reasonable amount of time
thereafter (and in all events within one hundred eighty (180) days after discovery of the
error), including payment to the United States of any additional Rebate Amount owed to
it,interest thereon, and any penalty imposed under Section 1.148-3(h) of the Regulations.
(k) Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of the
Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the earlier of the
Stated Maturity or final payment of the Bonds,enter into any transaction that reduces the amount required
to be paid to the United States pursuant to Subsection 0) of this Section because such transaction results
in a smaller profit or a larger loss than would have resulted if the transaction had been at arm's length and
had the Yield of the Bonds not been relevant to either party.
(1) Elections. The City understands that the term "Gross Proceeds" includes "disposition
proceeds" as defined in the Treasury Regulations and,in the case of refunding bonds, transferred proceeds
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(if any). It is the understanding of the City that the covenants contained herein are intended to assure
compliance with the Code and any regulations or rulings promulgated by the U.S. Department of the
Treasury pursuant thereto. In the event that regulations or rulings are hereafter promulgated which
modify or expand provisions of the Code, as applicable to the Bonds, 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 exemption from federal income taxation
of interest on the Bonds under section 103 of the Code. In the event that regulations or rulings are
hereafter promulgated which impose additional requirements which are applicable to the Bonds, the City
agrees to comply with the additional requirements to the extent necessary, in the opinion of nationally
recognized bond counsel,to preserve the exemption from federal income taxation of interest on the Bonds
under section 103 of the Code. In furtherance of such intention,the City hereby directs and authorizes the
Mayor, City Manager, any Assistant City Manager or Chief Financial Officer / Director of Financial
Management Services, individually or jointly, to make elections permitted or required pursuant to the
provisions of the Code or the Regulations, as they deem necessary or appropriate in connection with the
Bonds, in the Tax Certificate or similar or other appropriate certificate,form or document.
(m) No Advance Refunding. The City agrees to refrain from using the proceeds of the Bonds
or the proceeds of any prior bonds to pay debt service on another issue more than ninety (90) days after
the issuance of the Bonds in contravention of section 149(d)of the Code(relating to advance refundings).
ARTICLE 8
LIABILITY OF CITY
The City shall not incur any responsibility in respect of the Bonds or this Indenture other than in
connection with the duties or obligations explicitly herein or in the Bonds assigned to or imposed upon it.
The City shall not be liable in connection with the performance of its duties hereunder, except for its own
willful default or act of bad faith. The City shall not be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions covenants or agreements of the Trustee herein
or of any of the documents executed by the Trustee in connection with the Bonds,or as to the existence of
a default or event of default thereunder.
In the absence of bad faith, the City may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions furnished to the City and
conforming to the requirements of this Indenture. The City shall not be liable for any error of judgment
made in good faith unless it shall be proved that it was negligent in ascertaining the pertinent facts.
No provision of this Indenture, the Bonds, the Assessment Ordinance, or any agreement,
document, instrument, or certificate executed, delivered or approved by the City in connection with the
issuance, sale, delivery, or administration of the Bonds (collectively, the "Bond Documents"), shall
require the City to expend or risk its own general funds or revenues or other funds or otherwise incur any
financial liability in the performance of any of its obligations hereunder, the sole source of payment of
obligations incurred by the City under the Bond Documents being limited to the Pledged Revenues.
Neither the Owners nor any other Person shall have any claim against the City or any of its
officers, officials, agents, or employees for damages suffered as a result of the City's failure to perform in
any respect any covenant, undertaking, or obligation under any Bond Documents or as a result of the
incorrectness of any representation in, or omission from, any of the Bond Documents,except to the extent
that any such claim relates to an obligation, undertaking, representation, or covenant of the City, in
accordance with the Bond Documents and the PID Act. Any such claim shall be payable only from
Pledged Revenues. Nothing contained in any of the Bond Documents shall be construed to preclude any
action or proceeding in any court or before any governmental body, agency, or instrumentality against the
39
City or any of its officers, officials, agents, or employees to enforce the provisions of any of the Bond
Documents or to enforce all rights of the Owners of the Bonds by mandamus or other proceeding at law
or in equity.
The City may rely on and shall be protected in acting or refraining from acting upon any notice,
resolution, request, consent, order, certificate, report, warrant, bond, or other paper or document believed
by it to be genuine and to have been signed or presented by the proper party or proper parties. The City
may consult with counsel with regard to legal questions, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken or suffered by it hereunder in good
faith and in accordance therewith.
Whenever in the administration of its duties under this Indenture the City shall deem it necessary
or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of
willful misconduct on the part of the City, be deemed to be conclusively proved and established by a
certificate of the Trustee, an Independent Financial Consultant, an independent inspector or City Manager
or other person designated by the City Council to so act on behalf of the City, and such certificate shall be
full warrant to the City for any action taken or suffered under the provisions of this Indenture upon the
faith thereof, but in its discretion the City may, in lieu thereof, accept other evidence of such matter or
may require such additional evidence as to it may seem reasonable.
In order to perform its duties and obligations hereunder, the City may employ such persons or
entities as it deems necessary or advisable. The City shall not be liable for any of the acts or omissions of
such persons or entities employed by it in good faith hereunder, and shall be entitled to rely, and shall be
fully protected in doing so, upon the opinions, calculations, determinations, and directions of such
persons or entities.
ARTICLE 9
THE TRUSTEE
Section 9.1 Trustee as Registrar and Paying Agent.
The Trustee is hereby designated and agrees to act as Registrar and Paying Agent for and in
respect to the Bonds.
Section 9.2 Trustee Entitled to Indemnity.
The Trustee shall be under no obligation to institute any suit, or to undertake any proceeding
under this Indenture, or to enter any appearance or in any way defend in any suit in which it may be made
defendant, or to take any steps in the execution of the trusts hereby created or in the enforcement of any
rights and powers hereunder, until it shall be indemnified by the Owners of the Bonds to its satisfaction
against any and all costs and expenses, outlays, and counsel fees and other reasonable disbursements, and
against all liability except as a consequence of its own negligence or willful misconduct. Nevertheless,
the Trustee may begin suit, or appear in and defend suit, or do anything else in its judgment proper to be
done by it as the Trustee, without indemnity, and in such case the Trustee may make transfers from the
Pledged Revenue Fund or the District Administration Account of the Administrative Fund to pay all costs
and expenses, outlays, and counsel fees and other reasonable disbursements properly incurred in
connection therewith and shall be entitled to a preference therefor over any Bonds Outstanding hereunder.
Section 9.3 Responsibilities of the Trustee.
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The Trustee accepts the trusts imposed upon it by this Indenture, and agrees to observe and
perform those trusts, but only upon and subject to the terms and conditions set forth in this Article, to all
of which the parties hereto and the Owners agree.
(a) Prior to the occurrence of an Event of Default of which the Trustee has been notified, and
after the cure or waiver of all defaults or Events of Default which may have occurred,
(1) the Trustee undertakes to perform only those duties and obligations which are set
forth specifically in this Indenture, and no duties or obligations shall be implied to the
Trustee; and
(2) in the absence of bad faith on its part,the Trustee may rely conclusively, as to the
truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which by any provision
hereof are required specifically to be furnished to the Trustee,the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the requirements
of this Indenture.
(b) In case an Event of Default has occurred and is continuing hereunder (of which the
Trustee has been notified, or is deemed to have notice), the Trustee shall exercise those rights
and powers vested in it by this Indenture and shall use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act, or its own willful misconduct, except
that
(1) this subparagraph shall not be construed to affect the limitation of the Trustee's
duties and obligations provided in subparagraph (a)(1) of this Section or the Trustee's
right to rely on the truth of statements and the correctness of opinions as provided in
subparagraph(a)(2)of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by
any one of its officers, unless it shall be established that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Controlling Holders
relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the 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 against such
risk or liability is not reasonably assured to it.
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Whether or not therein expressly so provided, every provision of this Indenture or any
other Bond Document relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this ARTICLE 9.
(d) The recitals contained in this Indenture and in the Bonds shall be taken as the statements
of the City and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or the Bonds
or with respect to the security afforded by this Indenture, and the Trustee shall incur no liability
with respect thereto. Except as otherwise expressly provided in this Indenture, the Trustee shall
have no responsibility or duty with respect to: (i) the issuance of Bonds for value; (ii) the
application of the proceeds thereof, except to the extent that such proceeds are received by it in
its capacity as Trustee; (iii) the application of any moneys paid to the City or others in
accordance with this Indenture, except as to the application of any moneys paid to it in its
capacity as Trustee; or(iv)any calculation of arbitrage or rebate under the Code.
(e) The duties and obligations of the Trustee shall be determined by the express provisions of
this Indenture, and the Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture.
(f) The Trustee shall not be liable for any action taken or omitted by it in the performance of
its duties under this Indenture, except for its own negligence or willful misconduct. In no event
shall the Trustee be liable for incidental, indirect, special or consequential damages in
connection with or arising from this Indenture for the existence, furnishing or use of the
Roadway Improvements.
(g) The Trustee (i) may execute any of the trusts or powers hereof and perform any of its
duties by or through attorneys, agents, receivers or employees (but shall be answerable therefor
only in accordance with the standard specified above), and (ii) shall be entitled to the advice of
counsel concerning all matters of trusts hereof and duties hereunder.
(h) Except for its certificate of authentication on the Bonds, the Trustee shall not be
responsible for:
(1) the validity, priority, recording, re-recording, filing or re-filing of this Indenture
or any Supplemental Indenture,
(2) any instrument or document of further assurance or collateral assignment,
(3) the filing of any financing statements, amendments thereto or continuation
statements,
(4) insurance of the Roadway Improvements or collection of insurance money,
(5) the validity of the execution by the City of this Indenture, any Supplemental
Indenture or instruments or documents of further assurance, or
(6) the sufficiency of the security for the Bonds issued hereunder or intended to be
secured hereby.
(i) The Trustee shall not be accountable for the application by any Person of the proceeds of
any Bonds authenticated or delivered hereunder.
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0) The Trustee shall be protected, in the absence of bad faith or negligence on its part, in
acting upon any notice,request, direction, consent, certificate, order, affidavit, letter,telegram or
other paper or document reasonably believed by it to be genuine and correct and to have been
signed or sent by the proper Person or Persons. Any action taken by the Trustee pursuant to this
Indenture upon the direction, request, authority or consent of any Person who is the Owner of
any Bonds at the time of making the request or giving the authority or consent, shall be
conclusive and binding upon all future Owners of the same Bond and of Bonds issued in
exchange therefor or in place thereof.
(k) The Trustee shall not be required to take notice, and shall not be deemed to have notice,
of any default or Event of Default, except Events of Default described in Section 11.1(1), unless
the Trustee shall be notified specifically of the default or Event of Default in a written instrument
or document delivered to it by the City or by the Owners of more than 50% of principal amount
of Bonds. In the absence of delivery of a notice satisfying those requirements, the Trustee may
assume conclusively that there is no Event of Default,except as noted above.
(1) The Trustee shall not be required to give any bond or surety with respect to the execution
of these trusts and powers or otherwise in respect of the premises.
(m) Any resolution by the City, and any opinions, certificates and other instruments and
documents for which provision is made in this Indenture, may be accepted by the Trustee, in the
absence of bad faith on its part, as conclusive evidence of the facts and conclusions stated therein
and shall be full warrant,protection and authority to the Trustee for its actions taken hereunder.
(n) The Trustee shall be entitled to file proofs of claim in bankruptcy. Ordinary trustee fees
and expenses and extraordinary fees and expenses of the Trustee incurred hereunder are intended
to constitute administrative expenses in bankruptcy.
(o) The Trustee's immunities and protections from liability and its right to indemnification in
connection with the performance of its duties under this Indenture shall extend to the Trustee's
officers, directors, agents, attorneys and employees. Such immunities and protections and rights
to indemnification, together with the Trustee's right to compensation, shall survive the Trustee's
resignation or removal,the discharge of this Indenture, and final payment of the Bonds.
(p) In no event shall the Trustee be responsible or liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit), irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(q) The Trustee shall have no responsibility with respect to any information, statement or
recital in any official statement, offering memorandum or any other disclosure material prepared
or distributed with respect to the Bonds, except for any information provided by the Trustee, and
shall have no responsibility for compliance with any state or federal securities laws in connection
with the Bonds.
(r) The permissive right of the Trustee to do things enumerated in this Indenture shall not be
construed as a duty and the Trustee shall not be answerable for other than its negligence or
willful default.
(s) The Trustee shall not be responsible or liable for the environmental condition or any
contamination of the Roadway Improvements or any real property or improvements related
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thereto or for any diminution in value of the same as a result of any contamination by any
hazardous substance, hazardous material, pollutant or contaminant. The Trustee shall not be
liable for any claims by or on behalf of the Owners or any other person or entity arising from
contamination by any hazardous substance, hazardous material, pollutant or contaminant, and
shall have no duty or obligation to assess the environmental condition of the Roadway
Improvements or any real property or improvements related thereto or with respect to
compliance thereof under state or federal laws pertaining to the transport, storage, treatment or
disposal of, hazardous substances, hazardous materials, pollutants, or contaminants or
regulations,permits or licenses issued under such laws.
Section 9.4 Property Held in Trust.
All moneys and securities held by the Trustee at any time pursuant to the terms of this Indenture
shall be held by the Trustee in trust for the purposes and under the terms and conditions of this Indenture.
Section 9.5 Trustee Protected in Relying on Certain Documents.
The Trustee may rely upon any order, notice, request, consent, waiver, certificate, statement,
affidavit, requisition, bond, or other document provided to the Trustee in accordance with the terms of
this Indenture that it shall in good faith reasonably believe to be genuine and to have been adopted or
signed by the proper board or Person or to have been prepared and furnished pursuant to any of the
provisions of this Indenture, or upon the written opinion of any counsel, architect, engineer, insurance
consultant, management consultant,or accountant believed by the Trustee to be qualified in relation to the
subject matter, and the Trustee shall be under no duty to make any investigation or inquiry into any
statements contained or matters referred to in any such instrument. The Trustee may consult with
counsel, who may or may not be Bond Counsel, and, the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered, or omitted to be taken by it
in good faith and in accordance therewith.
Whenever the Trustee shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering any action under this Indenture, such matter may be deemed to be conclusively
proved and established by a City Certificate, unless other evidence in respect thereof be hereby
specifically prescribed. Such City Certificate shall be full warrant for any action taken or suffered in
good faith under the provisions hereof, but in its discretion the Trustee may in lieu thereof accept other
evidence of such fact or matter or may require such further or additional evidence as it may deem
reasonable. Except as otherwise expressly provided herein, any request, order, notice, or other direction
required or permitted to be furnished pursuant to any provision hereof by the City to the Trustee shall be
sufficiently executed if executed in the name of the City by the City Representative.
The Trustee shall not be under any obligation to see to the recording or filing of this Indenture, or
otherwise to the giving to any Person of notice of the provisions hereof except as expressly required in
Section 9.13 herein.
Section 9.6 Compensation.
From time to time, the Trustee shall provide the City Representative with an invoice setting forth
the reasonable compensation for all services rendered by it hereunder, including its services as Registrar
and Paying Agent, together with all its reasonable expenses, charges, and other disbursements and those
of its counsel, agents and employees, incurred in and about the administration and execution of the trusts
hereby created and the exercise of its powers and the performance of its duties hereunder, subject to any
limit on the amount of such compensation or recovery of expenses or other charges as shall be prescribed
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by specific agreement, and the Trustee shall have a lien therefor on any and all funds at any time held by
it hereunder prior to any Bonds Outstanding. Unless written objection to the invoice is received from the
City by the Trustee within ten (10) days of its delivery to the City, the Trustee shall transfer from the
Administrative Fund the amount set forth thereon. None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers, if in the judgment of the
Trustee there are reasonable grounds for believing that the repayment of such funds or liability is not
reasonably assured to it. If the City shall fail to make any payment required by this Section, the Trustee
may make such payment from any moneys in its possession under the provisions of this Indenture and
shall be entitled to a preference therefor over any Bonds Outstanding hereunder.
Section 9.7 Permitted Acts.
The Trustee and its directors, officers, employees, or agents may become the owner of or may in
good faith buy, sell, own, hold and deal in Bonds and may join in any action that any Owner of Bonds
may be entitled to take as fully and with the same rights as if it were not the Trustee. The Trustee may act
as depository, and permit any of its officers or directors to act as a member of, or in any other capacity
with respect to, the City or any committee formed to protect the rights of holders of Bonds or to effect or
aid in any reorganization growing out of the enforcement of the Bonds or this Indenture, whether or not
such committee shall represent the holders of a majority in aggregate outstanding principal amount of the
Bonds.
Section 9.8 Resignation of Trustee.
The Trustee may at any time resign and be discharged of its duties and obligations hereunder by
giving not fewer than 30 days' written notice, specifying the date when such resignation shall take effect,
to the City and each Owner of any Outstanding Bond. Such resignation shall take effect upon the
appointment of a successor as provided in Section 9.10 and the acceptance of such appointment by such
successor.
Section 9.9 Removal of Trustee.
The Trustee may be removed at any time by (i) the Owners of at least a majority of the aggregate
outstanding principal of the Bonds by an instrument or concurrent instruments in writing signed and
acknowledged by such Owners or by their attorneys-in-fact, duly authorized and delivered to the City, or
(ii) so long as the City is not in default under this Indenture, the City. Copies of each such instrument
shall be delivered by the City to the Trustee and any successor thereof. The Trustee may also be removed
at any time for any breach of trust or for acting or proceeding in violation of, or for failing to act or
proceed in accordance with, any provision of this Indenture with respect to the duties and obligations of
the Trustee by any court of competent jurisdiction upon the application of the City or the Owners of not
less than 10% of the aggregate outstanding principal of the Bonds.
Section 9.10 Successor Trustee.
If the Trustee shall resign, be removed, be dissolved, or become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or if a receiver, liquidator, or conservator of the Trustee or of its
property shall be appointed, or if any public officer shall take charge or control of the Trustee or of its
property or affairs,the position of the Trustee hereunder shall thereupon become vacant.
If the position of Trustee shall become vacant for any of the foregoing reasons or for any other
reason, a successor Trustee may be appointed within one year after any such vacancy shall have occurred
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by the Owners of at least twenty-five percent (25%) of the aggregate outstanding principal of the Bonds
by an instrument or concurrent instruments in writing signed and acknowledged by such Owners or their
attorneys-in-fact, duly authorized and delivered to such successor Trustee, with notification thereof being
given to the predecessor Trustee and the City.
Until such successor Trustee shall have been appointed by the Owners of the Bonds, the City
shall forthwith appoint a Trustee to act hereunder. Copies of any instrument of the City providing for any
such appointment shall be delivered by the City to the Trustee so appointed. The City shall mail notice of
any such appointment to each Owner of any Outstanding Bonds within 30 days after such appointment.
Any appointment of a successor Trustee made by the City immediately and without further act shall be
superseded and revoked by an appointment subsequently made by the Owners of Bonds.
If in a proper case no appointment of a successor Trustee shall be made within 45 days after the
giving by any Trustee of any notice of resignation in accordance with Section 9.8 herein or after the
occurrence of any other event requiring or authorizing such appointment, the Trustee or any Owner of
Bonds may apply to any court of competent jurisdiction for the appointment of such a successor, and the
court may thereupon, after such notice, if any, as the court may deem proper, appoint such successor and
the City shall be responsible for the costs of such appointment process.
Any successor Trustee appointed under the provisions of this Section shall be a commercial bank
or trust company or national banking association (i) having a capital and surplus and undivided profits
aggregating at least $50,000,000, if there be such a commercial bank or trust company or national
banking association willing and able to accept the appointment on reasonable and customary terms, and
(ii) authorized by law to perform all the duties of the Trustee required by this Indenture.
Each successor Trustee shall mail, in accordance with the provisions of the Bonds, notice of its
appointment to the Trustee, any rating agency which, at the time of such appointment, is providing a
rating on the Bonds, and each of the Owners of the Bonds.
Section 9.11 Transfer of Rights and Property to Successor Trustee.
Any successor Trustee appointed under the provisions of Section 9.10 shall execute,
acknowledge, and deliver to its predecessor and the City an instrument in writing accepting such
appointment, and thereupon such successor, without any further act, deed, or conveyance, shall become
fully vested with all moneys, estates,properties,rights,immunities,powers,duties,obligations,and trusts
of its predecessor hereunder, with like effect as if originally appointed as Trustee. However, the Trustee
then ceasing to act shall nevertheless, on request of the City or of such successor, execute, acknowledge,
and deliver such instruments of conveyance and further assurance and do such other things as may
reasonably be required for more fully and certainly vesting and confirming in such successor all the
rights, immunities, powers, and trusts of such Trustee and all the right, title, and interest of such Trustee
in and to the Trust Estate, and shall pay over, assign, and deliver to such successor any moneys or other
properties subject to the trusts and conditions herein set forth. Should any deed, conveyance, or
instrument in writing from the City be required by such successor for more fully and certainly vesting in
and confirming to it any such moneys, estates, properties, rights, powers, duties, or obligations, any and
all such deeds, conveyances, and instruments in writing, on request and so far as may be authorized by
law, shall be executed, acknowledged, and delivered by the City.
Section 9.12 Merger, Conversion or Consolidation of Trustee.
Any corporation or association into which the Trustee may be merged or with which it may be
consolidated or any corporation or association resulting from any merger, conversion or consolidation to
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which it shall be a party or any corporation or association to which the Trustee may sell or transfer all or
substantially all of its corporate trust business shall be the successor to such Trustee hereunder, without
any further act, deed or conveyance, provided that such corporation or association shall be a commercial
bank or trust company or national banking association qualified to be a successor to such Trustee under
the provisions of Section 9.10, or a trust company that is a wholly-owned subsidiary of any of the
foregoing.
Section 9.13 Trustee to File Continuation Statements.
If necessary, the Trustee shall file or cause to be filed, such continuation statements as are
delivered to the Trustee by the City, or on behalf of the City, and which may be required by the Texas
Uniform Commercial Code, as from time to time in effect(the"UCC"), in order to continue perfection of
the security interest of the Trustee in such items of tangible or intangible personal property and any
fixtures as may have been granted to the Trustee pursuant to this Indenture in the time, place and manner
required by the UCC.
Section 9.14 Accounts,Periodic Reports and Certificates.
The Trustee shall keep or cause to be kept proper books of record and account (separate from all
other records and accounts) in which complete and correct entries shall be made of its transactions
relating to the Funds and Accounts established by this Indenture and which shall at all times be subject to
inspection by the City, and the Owner or Owners of not less than 10% in principal amount of any Bonds
then Outstanding or their representatives duly authorized in writing.
Section 9.15 Construction of Indenture.
The Trustee may construe any of the provisions of this Indenture insofar as the same may appear
to be ambiguous or inconsistent with any other provision hereof, and any construction of any such
provisions hereof by the Trustee in good faith shall be binding upon the Owners of the Bonds.
ARTICLE 10
MODIFICATION OR AMENDMENT OF THIS INDENTURE
Section 10.1 Amendments Permitted.
This Indenture and the rights and obligations of the City and of the Owners of the Bonds may be
modified or amended at any time by a Supplemental Indenture, except as provided below,pursuant to the
affirmative vote at a meeting of Owners of the Bonds, or with the written consent without a meeting, of
the Owners of at a majority of the aggregate principal amount of the Bonds then Outstanding. No such
modification or amendment shall (i) extend the maturity of any Bond or reduce the interest rate thereon,
or otherwise alter or impair the obligation of the City to pay the principal of, and the interest and any
premium on, any Bond, without the express consent of the Owner of such Bond, or(ii)permit the creation
by the City of any pledge or lien upon the Pledged Revenues superior to or on a parity with the pledge
and lien created for the benefit of the Bonds (except as otherwise permitted by Applicable Laws or this
Indenture), or reduce the percentage of Bonds required for the amendment hereof. Any such amendment
may not modify any of the rights or obligations of the Trustee without its written consent.
This Indenture and the rights and obligations of the City and of the Owners may also be modified
or amended at any time by a Supplemental Indenture, without the consent of any Owners, only to the
extent permitted by law and only for any one or more of the following purposes:
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(1) to add to the covenants and agreements of the City in this Indenture contained,
other covenants and agreements thereafter to be observed, or to limit or surrender any
right or power herein reserved to or conferred upon the City;
(2) to make modifications not adversely affecting any Outstanding Bonds in any
material respect;
(3) to make such provisions for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained in this Indenture, or in
regard to questions arising under this Indenture, as the City and the Trustee may deem
necessary or desirable and not inconsistent with this Indenture, and that shall not
adversely affect the rights of the Owners of the Bonds;and
(4) to make such additions, deletions or modifications as may be necessary or
desirable to assure exemption from federal income taxation of interest on the Bonds.
Section 10.2 Owners' Meetings,
The City may at any time call a meeting of the Owners of the Bonds. In such event the City is
authorized to fix the time and place of said meeting and to provide for the giving of notice thereof, and to
fix and adopt rules and regulations for the conduct of said meeting.
Section 10.3 Procedure for Amendment with Written Consent of Owners.
The City and the Trustee may at any time adopt a Supplemental Indenture amending the
provisions of the Bonds or of this Indenture, to the extent that such amendment is permitted by Section
10.1 herein,to take effect when and as provided in this Section. A copy of such Supplemental Indenture,
together with a request to Owners for their consent thereto, shall be mailed by first class mail, by the
Trustee to each Owner of Bonds from whom consent is required under this Indenture, but failure to mail
copies of such Supplemental Indenture and request shall not affect the validity of the Supplemental
Indenture when assented to as in this Section provided.
Such Supplemental Indenture shall not become effective unless there shall be filed with the
Trustee the written consents of the Owners as required by this Indenture and a notice shall have been
mailed as hereinafter in this Section provided. Each such consent shall be effective only if accompanied
by proof of ownership of the Bonds for which such consent is given, which proof shall be such as is
permitted by Section 11.6 herein. Any such consent shall be binding upon the Owner of the Bonds giving
such consent and on any subsequent Owner (whether or not such subsequent Owner has notice thereof),
unless such consent is revoked in writing by the Owner giving such consent or a subsequent Owner by
filing such revocation with the Trustee prior to the date when the notice hereinafter in this Section
provided for has been mailed.
After the Owners of the required percentage of Bonds shall have filed their consents to the
Supplemental Indenture, the City shall mail a notice to the Owners in the manner hereinbefore provided
in this Section for the mailing of the Supplemental Indenture, stating in substance that the Supplemental
Indenture has been consented to by the Owners of the required percentage of Bonds and will be effective
as provided in this Section (but failure to mail copies of said notice shall not affect the validity of the
Supplemental Indenture or consents thereto). Proof of the mailing of such notice shall be filed with the
Trustee. A record,consisting of the papers required by this Section 10.3 to be filed with the Trustee, shall
be proof of the matters therein stated until the contrary is proved. The Supplemental Indenture shall
become effective upon the filing with the Trustee of the proof of mailing of such notice, and the
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Supplemental Indenture shall be deemed conclusively binding (except as otherwise hereinabove
specifically provided in this Article)upon the City and the Owners of all Bonds at the expiration of ninety
(90)days after such filing, except in the event of a final decree of a court of competent jurisdiction setting
aside such consent in a legal action or equitable proceeding for such purpose commenced within such
ninety-day period.
Section 10.4 Effect of Supplemental Indenture.
From and after the time any Supplemental Indenture becomes effective pursuant to this Article X,
this Indenture shall be deemed to be modified and amended in accordance therewith,the respective rights,
duties, and obligations under this Indenture of the City, the Trustee and all Owners of Bonds Outstanding
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such Supplemental Indenture
shall be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 10.5 Endorsement or Replacement of Bonds Issued After Amendments.
The City may determine that Bonds issued and delivered after the effective date of any action
taken as provided in this ARTICLE 10 shall bear a notation, by endorsement or otherwise, in form
approved by the City, as to such action. In that case, upon demand of the Owner of any Bond
Outstanding at such effective date and presentation of his Bond for that purpose at the designated office
of the Trustee or at such other office as the City may select and designate for that purpose, a suitable
notation shall be made on such Bond. The City may determine that new Bonds, so modified as in the
opinion of the City is necessary to conform to such Owners' action, shall be prepared, executed, and
delivered. In that case,upon demand of the Owner of any Bonds then Outstanding, such new Bonds shall
be exchanged at the designated office of the Trustee without cost to any Owner, for Bonds then
Outstanding, upon surrender of such Bonds.
Section 10.6 Amendatory Endorsement of Bonds.
The provisions of this ARTICLE 10 shall not prevent any Owner from accepting any amendment
as to the particular Bonds held by such Owner,provided that due notation thereof is made on such Bonds.
Section 10.7 Waiver of Default
With the written consent of at least a majority in aggregate principal amount of the Bonds then
Outstanding, the Owners may waive compliance by the City with certain past defaults under the Indenture
and their consequences. Any such consent shall be conclusive and binding upon the Owners and upon all
future Owners.
Section 10.8 Execution of Supplemental Indenture.
In executing, or accepting the additional trusts created by, any Supplemental Indenture permitted
by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall receive,
and shall be fully protected in relying upon, an opinion of counsel addressed and delivered to the Trustee
and the City stating that the execution of such Supplemental Indenture is permitted by and in compliance
with this Indenture. The Trustee may, but shall not be obligated to, enter into any such Supplemental
Indenture which affects the Trustee's own rights,duties and immunities under this Indenture or otherwise.
ARTICLE 11
DEFAULT AND REMEDIES
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Section 11.1 Events of Default.
Each of the following occurrences or events shall be and is hereby declared to be an "Event of
Default,"to wit:
(1) The failure of the City to deposit the Pledged Revenues to the Pledged Revenue
Fund;
(2) The failure of the City to enforce the collection of the Roadway Improvement
Special Assessments including the prosecution of foreclosure proceedings;
(3) The failure to make payment of the principal of or interest on any of the Bonds
when the same becomes due and payable and such failure is not remedied within thirty
(30) days; and
(4) Default in the performance or observance of any covenant, agreement or
obligation of the City under this Indenture and the continuation thereof for a period of
ninety (90) days after written notice to the City by the Trustee, or by the Owners of at
least 25% of the aggregate outstanding principal of the Bonds with a copy to the Trustee,
specifying such default by the Owners of at least 25% of the Bonds at the time
Outstanding requesting that the failure be remedied.
Section 11.2 Immediate Remedies for Default.
(a) Subject to ARTICLE 8, upon the happening and continuance of any of the Events of
Default described in Section 11.1, the Owners of at least 25% of the Bonds then Outstanding, may
proceed against the City for the purpose of protecting and enforcing the rights of the Owners under this
Indenture, by action seeking mandamus or by other suit, action, or special proceeding in equity or at law,
in any court of competent jurisdiction, for any relief to the extent permitted by Applicable Laws,
including, but not limited to, the specific performance of any covenant or agreement contained herein, or
injunction; provided, however, that no action for money damages against the City may be sought or shall
be permitted.
(b) AS SET FORTH IN SECTION 11.7, THE PRINCIPAL OF THE BONDS SHALL NOT
BE SUBJECT TO ACCELERATION UNDER ANY CIRCUMSTANCES.
(c) If the assets of the Trust Estate are sufficient to pay all amounts due with respect to all
Outstanding Bonds, in the selection of Trust Estate assets to be used in the payment of Bonds due under
this Article, the City shall determine, in its absolute discretion, and shall instruct the Trustee by City
Certificate, which Trust Estate assets shall be applied to such payment and shall not be liable to any
Owner or other Person by reason of such selection and application. In the event that the City shall fail to
deliver to the Trustee such City Certificate, the Trustee shall select and liquidate or sell Trust Estate assets
as provided in the following paragraph, and shall not be liable to any Owner, or other Person, or the City
by reason of such selection,liquidation or sale.
(d) Whenever moneys are to be applied pursuant to this ARTICLE 11, irrespective of and
whether other remedies authorized under this Indenture shall have been pursued in whole or in part, the
Trustee may cause any or all of the assets of the Trust Estate, including Investment Securities,to be sold.
The Trustee may so sell the assets of the Trust Estate and all right, title, interest, claim and demand
thereto and the right of redemption thereof, in one or more parts, at any such place or places, and at such
time or times and upon such notice and terms as the Trustee may deem appropriate and as may be
required by law and apply the proceeds thereof in accordance with the provisions of this Section. Upon
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such sale, the Trustee may make and deliver to the purchaser or purchasers a good and sufficient
assignment or conveyance for the same, which sale shall be a perpetual bar both at law and in equity
against the City, and all other Persons claiming such properties. No purchaser at any sale shall be bound
to see to the application of the purchase money proceeds thereof or to inquire as to the authorization,
necessity, expediency, or regularity of any such sale. Nevertheless, if so requested by the Trustee, the
City shall ratify and confirm any sale or sales by executing and delivering to the Trustee or to such
purchaser or purchasers all such instruments as may be necessary or, in the judgment of the Trustee,
proper for the purpose which may be designated in such request.
Section 11.3 Restriction on Owner's Action.
(a) No Owner shall have any right to institute any action, suit or proceeding at law or in
equity for the enforcement of this Indenture or for the execution of any trust thereof or any other remedy
hereunder, unless (i) a default has occurred and is continuing of which the Trustee has been notified in
writing, (ii) such default has become an Event of Default and the Owners of 25% of the aggregate
principal amount of the Bonds then Outstanding have made written request to the Trustee and offered it
reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to institute such
action, suit or proceeding in its own name, (iii) the Owners have furnished to the Trustee indemnity as
provided in Section 9.2 herein, (iv) the Trustee has for ninety (90) days after such notice failed or refused
to exercise the powers hereinbefore granted, or to institute such action, suit, or proceeding in its own
name, (v) no direction inconsistent with such written request has been given to the Trustee during such
90-day period by the registered owners of a majority of the aggregate principal amount of the Bonds then
Outstanding, and (vi) notice of such action, suit, or proceeding is given to the Trustee; however, no one or
more Owners of the Bonds shall have any right in any manner whatsoever to affect, disturb, or prejudice
this Indenture by its, his or their action or to enforce any right hereunder except in the manner provided
herein, and that all proceedings at law or in equity shall be instituted and maintained in the manner
provided herein and for the equal benefit of the registered owners of all Bonds then Outstanding. The
notification, request and furnishing of indemnity set forth above shall, at the option of the Trustee, be
conditions precedent to the execution of the powers and trusts of this Indenture and to any action or cause
of action for the enforcement of this Indenture or for any other remedy hereunder.
(b) Subject to ARTICLE 8, nothing in this Indenture shall affect or impair the right of any
Owner to enforce, by action at law, payment of any Bond at and after the maturity thereof, or on the date
fixed for redemption or the obligation of the City to pay each Bond issued hereunder to the respective
Owners thereof at the time and place, from the source and in the manner expressed herein and in the
Bonds.
(c) In case the Trustee or any Owners shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for any reason or shall have
been determined adversely to the Trustee or any Owners,then and in every such case the City,the Trustee
and the Owners shall be restored to their former positions and rights hereunder, and all rights, remedies
and powers of the Trustee shall continue as if no such proceedings had been taken.
Section 11.4 Anulication of Revenues and Other Moneys After Default.
(a) All moneys, securities, funds and Pledged Revenues and the income therefrom received
by the Trustee pursuant to any right given or action taken under the provisions of this Article shall, after
payment of the cost and expenses of the proceedings resulting in the collection of such amounts, the
expenses (including its counsel), liabilities, and advances incurred or made by the Trustee and the fees of
the Trustee in carrying out this Indenture, during the continuance of an Event of Default, notwithstanding
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Section 11.2 hereof, shall be applied by the Trustee, on behalf of the City, to the payment of interest and
principal or Redemption Price then due on Bonds,as follows:
FIRST: To the payment to the registered owners entitled thereto all installments
of interest then due in the direct order of maturity of such installments, and,if the amount
available shall not be sufficient to pay in full any installment, then to the payment thereof
ratably, according to the amounts due on such installment, to the registered owners
entitled thereto, without any discrimination or preference; and
SECOND: To the payment to the registered owners entitled thereto of the unpaid
principal of Outstanding Bonds, or Redemption Price of any Bonds which shall have
become due, whether at maturity or by call for redemption,in the direct order of their due
dates and, if the amounts available shall not be sufficient to pay in full all the Bonds due
on any date, then to the payment thereof ratably, according to the amounts of principal
due and to the registered owners entitled thereto, without any discrimination or
preference.
Within ten(10)days of receipt of such good and available funds,the Trustee may fix a record and
payment date for any payment to be made to Owners pursuant to this Section 11.4.
(b) In the event funds are not adequate to cure any of the Events of Default described in
Section 11.1, the available funds shall be allocated to the Bonds that are Outstanding in proportion to the
quantity of Bonds that are currently due and in default under the terms of this Indenture.
(c) The restoration of the City to its prior position after any and all defaults have been cured,
as provided in Section 11.3, shall not extend to or affect any subsequent default under this Indenture or
impair any right consequent thereon.
Section 11.5 Effect of Waiver.
No delay or omission of the Trustee, or any Owner,to exercise any right or power accruing upon
any default shall impair any such right or power or shall be construed to be a waiver of any such default
or an acquiescence therein; and every power and remedy given by this Indenture to the Trustee or the
Owners,respectively, may be exercised from time to time and as often as may be deemed expedient.
Section 11.6 Evidence of Ownership of Bonds.
(a) Any request, consent,revocation of consent or other instrument which this Indenture may
require or permit to be signed and executed by the Owners of Bonds may be in one or more instruments
of similar tenor, and shall be signed or executed by such Owners in person or by their attorneys duly
appointed in writing. Proof of the execution of any such instrument, or of any instrument appointing any
such attorney, or the holding by any Person of the Bonds shall be sufficient for any purpose of this
Indenture (except as otherwise herein expressly provided)if made in the following manner:
(1) The fact and date of the execution of such instruments by any Owner of Bonds or
the duly appointed attorney authorized to act on behalf of such Owner may be provided
by a guarantee of the signature thereon by a bank or trust company or by the certificate of
any notary public or other officer authorized to take acknowledgments of deeds, that the
Person signing such request or other instrument acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution, duly sworn to before such
notary public or other officer. Where such execution is by an officer of a corporation or
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association or a member of a partnership, on behalf of such corporation, association or
partnership, such signature guarantee, certificate, or affidavit shall also constitute
sufficient proof of his authority.
(2) The ownership of Bonds and the amount, numbers and other identification and
date of holding the same shall be proved by the Register.
(b) Except as otherwise provided in this Indenture with respect to revocation of a consent,
any request or consent by an Owner of Bonds shall bind all future Owners of the same Bonds in respect of
anything done or suffered to be done by the City or the Trustee in accordance therewith.
Section 11.7 No Acceleration.
In the event of the occurrence of an Event of Default under Section 11.1 hereof, the right of
acceleration of any Stated Maturity is not granted as a remedy hereunder and the right of acceleration
under this Indenture is expressly denied.
Section 11.8 Mailing of Notice.
Any provision in this Article for the mailing of a notice or other document to Owners shall be
fully complied with if it is mailed,first class postage prepaid, only to each Owner at the address appearing
upon the Register.
Section 11.9 Exclusion of Bonds.
Bonds owned or held by or for the account of the City will not be deemed Outstanding for the
purpose of consent or other action or any calculation of Outstanding Bonds provided for in this Indenture,
and the City shall not be entitled with respect to such Bonds to give any consent or take any other action
provided for in this Indenture.
ARTICLE 12
GENERAL COVENANTS AND REPRESENTATIONS
Section 12.1 Representations as to Pledged Revenues.
(a) The City represents and warrants that Applicable Laws authorize the City to issue the
Bonds, to execute and deliver this Indenture and to pledge the Pledged Revenues in the manner and to the
extent provided in this Indenture, and that the Pledged Revenues are and will be and remain free and clear
of any pledge, lien, charge, or encumbrance thereon or with respect thereto prior to, or of equal rank with,
the pledge and lien created in or authorized by this Indenture except as expressly provided herein.
(b) The City shall at all times, to the extent permitted by Applicable Laws, defend, preserve
and protect the pledge of the Pledged Revenues and all the rights of the Owners and the Trustee, under
this Indenture against all claims and demands of all Persons whomsoever.
(c) The City will take all steps reasonably necessary and appropriate, and will direct the
Trustee to take all steps reasonably necessary and appropriate, to collect all delinquencies in the collection
of the Roadway Improvement Special Assessments and any other amounts pledged to the payment of the
Bonds to the fullest extent permitted by the PID Act and other Applicable Laws.
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(d) To the extent permitted by law, notice of the Annual Installments shall be sent by, or on
behalf of the City to the affected property owners on the same statement or such other mechanism that is
used by the City, so that such Annual Installments are collected simultaneously with ad valorem taxes and
shall be subject to the same penalties, procedures, and foreclosure sale in case of delinquencies as are
provided for ad valorem taxes of the City.
Section 12.2 Accounts, Periodic Reports and Certificates.
The Trustee shall keep or cause to be kept proper books of record and account (separate from all
other records and accounts) in which complete and correct entries shall be made of its transactions
relating to the Funds and Accounts established by this Indenture and which shall at all times be subject to
inspection by the City, and any Owner of not less than 10% in principal amount of any Bonds then
Outstanding or their representatives duly authorized to act on their behalf in writing.
Section 12.3 General.
The City shall do and perform or cause to be done and performed all acts and things required to
be done or performed by or on behalf of the City under the provisions of this Indenture.
ARTICLE 13
SPECIAL COVENANTS
Section 13.1 Further Assurances; Due Performance.
(a) At any and all times the City will duly execute, acknowledge and deliver, or will cause to
be done, executed and delivered, all and every such further acts,conveyances,transfers, and assurances in
a manner as the Trustee shall reasonably require for better conveying, transferring, pledging, and
confirming unto the Trustee, all and singular, the revenues, Funds, Accounts and properties constituting
the Pledged Revenues, and the Trust Estate hereby transferred and pledged, or intended so to be
transferred and pledged.
(b) The City will duly and punctually keep, observe and perform each and every term,
covenant and condition on its part to be kept, observed and performed,contained in this Indenture.
Section 13.2 Additional Obligations; Other Obligations or Other Liens.
(a) Other than bonds issued to refund all or a portion of the Bonds, the City will not create or
voluntarily permit to be created any debt, lien or charge on the Trust Estate, and will not do or omit to do
or suffer to be or omitted to be done any matter or things whatsoever whereby the lien of this Indenture or
the priority hereof might or could be lost or impaired; and further covenants that it will pay or cause to be
paid or will make adequate provisions for the satisfaction and discharge of all lawful claims and demands
which if unpaid might by law be given precedence over or any equality with this Indenture as a lien or
charge upon the Pledged Revenues or Pledged Funds; provided, however, that nothing in this Section
shall require the City to apply, discharge, or make provision for any such lien, charge, claim, or demand
so long as the validity thereof shall be contested by it in good faith, unless thereby,in the opinion of Bond
Counsel or counsel to the Trustee, the same would adversely affect the ability of the City to timely pay
the debt service due and owing on the Bonds.
(b) Other than bonds issued to refund all or a portion of the Bonds and/or the Major
Improvement Bonds,the City will not issue any Additional Obligations.
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Section 13.3 Books of Record.
(a) The City shall cause to be kept full and proper books of record and accounts, in which
full, true and proper entries will be made of all dealing, business and affairs of the City, which relate to
the Pledged Revenues,the Pledged Funds, and the Bonds.
(b) The Trustee shall have no responsibility with respect to the financial and other
information received by it pursuant to this Section 13.3 except to receive and retain same, subject to the
Trustee's document retention policies, and to distribute the same in accordance with the provisions of this
Indenture. Specifically,but without limitation,the Trustee shall have no duty to review such information,
is not considered to have notice of the contents of such information or a default based on such contents,
and has no duty to verify the accuracy of such information.
ARTICLE 14
PAYMENT AND CANCELLATION OF THE BONDS AND SATISFACTION OF THE
INDENTURE
Section 14.1 Trust Irrevocable.
The trust created by the terms and provisions of this Indenture is irrevocable until the Bonds
secured hereby are fully paid or provision is made for their payment as provided in this Article.
Section 14.2 Satisfaction of Indenture.
If the City shall pay or cause to be paid, or there shall otherwise be paid to the Owners, principal
of and interest on all of the Bonds, at the times and in the manner stipulated in this Indenture, and all
amounts due and owing with respect to the Bonds have been paid or provided for, then the pledge of the
Trust Estate and all covenants, agreements, and other obligations of the City to the Owners of such
Bonds, shall thereupon cease, terminate, and become void and be discharged and satisfied. In such event,
the Trustee shall execute and deliver to the City copies of all such documents as it may have evidencing
that principal of and interest on all of the Bonds has been paid so that the City may determine if the
Indenture is satisfied; if so, the Trustee shall pay over or deliver all moneys held by it in the in Funds and
Accounts held hereunder to the Person entitled to receive such amounts, or, if no Person is entitled to
receive such amounts,then to the City.
Section 14.3 Bonds Deemed Paid.
Any Outstanding Bonds shall prior to the Stated Maturity or redemption date thereof be deemed
to have been paid and to no longer be deemed Outstanding if (i) in case any such Bonds are to be
redeemed on any date prior to their Stated Maturity, the Trustee shall have given notice of redemption on
said date as provided herein, (ii) there shall have been deposited with the Trustee either moneys in an
amount which shall be sufficient, or Defeasance Securities the principal of and the interest on which when
due will provide moneys which, together with any moneys deposited with the Trustee at the same time,
shall be sufficient to pay when due the principal of and interest on of the Bonds to become due on such
Bonds on and prior to the redemption date or maturity date thereof, as the case may be, (iii) the Trustee
shall have received a report by an independent certified public accountant selected by the City verifying
the sufficiency of the moneys or Defeasance Securities deposited with the Trustee to pay when due the
principal of and interest on of the Bonds to become due on such Bonds on and prior to the redemption
date or maturity date thereof, as the case may be, and (iv) if the Bonds are then rated, the Trustee shall
have received written confirmation from each rating agency that such deposit will not result in the
reduction or withdrawal of the rating on the Bonds. Neither Defeasance Securities nor moneys deposited
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with the Trustee pursuant to this Section nor principal or interest payments on any such Defeasance
Securities shall be withdrawn or used for any purpose other than, and shall be held in trust for, the
payment of the principal of and interest on the Bonds. Any cash received from such principal of and
interest on such Defeasance Securities deposited with the Trustee, if not then needed for such purpose,
shall, be reinvested in Defeasance Securities as directed in writing by the City maturing at times and in
amounts sufficient to pay when due the principal of and interest on the Bonds on and prior to such
redemption date or maturity date thereof, as the case may be. Any payment for Defeasance Securities
purchased for the purpose of reinvesting cash as aforesaid shall be made only against delivery of such
Defeasance Securities.
ARTICLE 15
MISCELLANEOUS
Section 15.1 Benefits of Indenture Limited to Parties.
Nothing in this Indenture, expressed or implied, is intended to give to any Person other than the
City, the Trustee and the Owners, any right, remedy, or claim under or by reason of this Indenture. Any
covenants, stipulations, promises or agreements in this Indenture by and on behalf of the City shall be for
the sole and exclusive benefit of the Owners and the Trustee.
Section 15.2 Successor is Deemed Included in All References to Predecessor.
Whenever in this Indenture or any Supplemental Indenture either the City or the Trustee is named
or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the
covenants and agreements in this Indenture contained by or on behalf of the City or the Trustee shall bind
and inure to the benefit of the respective successors and assigns thereof whether so expressed or not.
Section 15.3 Execution of Documents and Proof of Ownership by Owners.
Any request, declaration, or other instrument which this Indenture may require or permit to be
executed by Owners may be in one or more instruments of similar tenor,and shall be executed by Owners
in person or by their attorneys duly appointed in writing.
Except as otherwise herein expressly provided, the fact and date of the execution by any Owner
or his attorney of such request, declaration, or other instrument, or of such writing appointing such
attorney, may be proved by the certificate of any notary public or other officer authorized to take
acknowledgments of deeds to be recorded in the state in which he purports to act, that the Person signing
such request, declaration, or other instrument or writing acknowledged to him the execution thereof,or by
an affidavit of a witness of such execution,duly sworn to before such notary public or other officer.
Except as otherwise herein expressly provided, the ownership of registered Bonds and the
amount, maturity, number, and date of holding the same shall be proved by the Register.
Any request, declaration or other instrument or writing of the Owner of any Bond shall bind all
future Owners of such Bond in respect of anything done or suffered to be done by the City or the Trustee
in good faith and in accordance therewith.
Section 15.4 Waiver of Personal Liability.
No member of the City Council of the City, or any officer, agent, or employee of the City, shall
be individually or personally liable for the payment of the principal of, or interest or any premium on,the
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