HomeMy WebLinkAboutOrdinance 25675-08-2022 ORDINANCE NO. 25675-08-2022
AN ORDINANCE approving and authorizing the issuance by the City of Fort
Worth, Texas of its General Purpose Commercial Paper Notes, Series ECP, in an
aggregate principal amount at any one time outstanding not to exceed
$300,000,000 to provide interim financing to pay Project Costs for Projects and to
refund obligations issued in connection with Projects; approving and authorizing
certain authorized officers and employees to act on behalf of the City in the
selling and delivery of such Commercial Paper Notes, within the limitations and
procedures specified herein; making certain covenants and agreements in
connection therewith; resolving other matters incident and related to the issuance,
sale, security and delivery of such Commercial Paper Notes, including the
appointment of an Issuing and Paying Agent, and a Dealer and approval of an
Issuing and Paying Agent Agreement, and a Dealer Agreement; approving the use
of an Offering Memorandum in connection with the sale from time to time of
such Commercial Paper Notes; and providing an effective date.
THE STATE OF TEXAS
COUNTIES OF TARRANT, DENTON, WISE, PARKER AND JOHNSON
CITY OF FORT WORTH
WHEREAS, the City of Fort Worth, Texas (the "City" or the "Issuer") is a home-rule
municipality, acting as such under the Constitution and laws of the State of Texas, has a
population in excess of 50,000, and has outstanding long-term indebtedness that is rated by a
nationally recognized rating agency for municipal securities in one of the four highest rating
categories for long-term obligations; and
WHEREAS, capitalized terms used herein shall have the meanings given to them in
Section 1.01 hereof; and
WHEREAS, (i) at an election held on May 5, 2018 (the "2018 Election"), the voters
within the Issuer authorized the issuance of public securities in an amount not to exceed
$399,500,000 for the public purpose of designing, constructing and renovating street and
pedestrian mobility improvements, public safety facilities for the fire and police departments,
park and recreation facilities, library facilities and animal control facilities, including the
acquisition of land and rights-of-way for such improvements and facilities, and (ii) at an election
held on May 7, 2022 (the "2022 Election" and, together with the 2018 Election, the "Elections"),
the voters within the Issuer authorized the issuance of public securities in an amount not to
exceed $560,000,000 for the public purpose of designing, constructing and renovating street and
pedestrian mobility improvements, public safety facilities for the fire and police departments,
park and recreation facilities, library facilities and public open space facilities, including the
acquisition of land and rights-of-way for such improvements and facilities, and pursuant to the
Elections, the Issuer is authorized to provide for the payment of principal of and interest on such
public securities through the levy of an annual ad valorem tax, within the limits prescribed by
law, on all taxable property within the Issuer; and
WHEREAS, from the 2018 Election,the City currently has$83,165,000 in authorized but
unissued public securities, and the City currently has not issued any public securities authorized
at the 2022 Election; and
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WHEREAS, the Issuer wishes to provide in this Ordinance for the issuance, from time to
time, of its Commercial Paper Notes, with such Commercial Paper Notes to be issued in an
aggregate principal amount Outstanding at any one time not exceeding the Authorized Amount
to provide an interim variable rate financing program for Projects authorized at the Elections;
and
WHEREAS, although the Issuer has the option to extend the maturity of a Commercial
Paper Note, the Issuer intends, but is not obligated, to pay each Note on its Original Maturity
Date from the proceeds of newly issued Commercial Paper Notes of the same series, from the
proceeds of Refunding Bonds, or from other funds legally available to the Issuer for such
purpose; and
WHEREAS, the Commercial Paper Notes shall be obligations of the Issuer issued in
anticipation of receiving proceeds from Refunding Bonds that the Issuer may issue pursuant to a
Refunding Ordinance to repay the Notes; and
WHEREAS, the Commercial Paper Notes authorized to be issued by this Ordinance shall
be issued and delivered pursuant to Chapter 1331 and Chapter 1371, Texas Government Code, as
amended, and other applicable laws; and
WHEREAS, the City Council hereby finds that the purposes for which it may issue
Commercial Paper Notes hereunder constitute "eligible projects", as contemplated by
Chapter 1371, Texas Government Code, as amended, and constitute the type of projects
authorized to be financed or refinanced by the General Purpose Bonds; and
WHEREAS, the meeting was open to the public and public notice of the time, place and
purpose of said meeting was given pursuant to Chapter 551, Texas Government Code;
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless the context shall indicate a contrary meaning or intent,
the terms below defined, for all purposes of this Ordinance or any ordinance amendatory or
supplemental hereto, shall be construed, are used and are intended to have the following
meanings,to-wit:
"Act" shall mean Chapters 1331 and 1371, Texas Government Code, as amended.
"Authorized Amount" shall mean the lesser of (i) $300,000,000 and (ii) the amount of
any remaining unissued General Purpose Bonds authorized for eligible projects under the Act;
provided that such amount may be issued in one or more Series and provided, further, that the
aggregate amount outstanding under this Ordinance at any one time among all Series may not
exceed such Authorized Amount.
"Authorized Representative" shall mean one or more of the following officers or
employees of the City, acting in concert or individually, to-wit: the City Manager, any Assistant
City Manager, the Chief Financial Officer/Director of Financial Management Services, or such
other officer or employee of the City designated in writing by the City Manager, and approved
by the City Council,to act as an Authorized Representative.
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"Bond Counsel" shall mean an attorney or firm of attorneys which are nationally
recognized as having expertise in the practice of tax-exempt municipal finance law, as approved
by the City. McCall, Parkhurst & Horton L.L.P. and Kelly Hart & Hallman LLP have been
selected by the City to serve as co-Bond Counsel with respect to the issuance of Commercial
Paper Notes under this Ordinance.
"Business Day" shall mean any day (a) when banks are not authorized to be closed in the
City and (b) when banks or the New York Stock Exchange are not authorized to be closed in
New York,New York.
"City"or"Issuer" shall mean the City of Fort Worth, Texas.
"City Council" shall mean the governing body of the City.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commercial Paper Note" shall mean a note issued pursuant to the provisions of this
Ordinance, having the terms and characteristics specified in Section 2.03 hereof and in the form
described in Section 2.05 hereof.
"Costs of Issuance" shall mean all reasonable costs incurred by the Issuer in connection
with the issuance of a Series, including, but not limited to: (a) counsel fees related to the issuance
of such Series; (b) financial advisor fees incurred in connection with the issuance of such Series;
(c)rating agency fees; (d) the initial fees and expenses of the Dealer and the Issuing and Paying
Agent; (e)accountant fees related to the issuance of such Series; (f)printing and publication
costs; and (g)any other fee or cost incurred in connection with the issuance of such Series that
constitutes an"issuance cost"within the meaning of the Code.
"Dealer"shall mean each entity so designated in the Dealer Agreement.
"Dealer Agreement" shall mean the agreement approved and authorized to be entered
into by Section 3.05 hereof, as from time to time amended or supplemented.
"Designated Office" shall mean the designated trust office of the Issuing and Paying
Agent where Commercial Paper Notes must be presented and delivered for receipt of payment of
the principal amount thereof.
"DTC" shall mean The Depository Trust Company or any substitute securities depository
appointed pursuant to this Ordinance, or any nominee thereof.
"DTC Participant" shall mean a member of, or the participant in, DTC that will act on
behalf of a Holder.
"Eligible Investments" shall mean any or all of the authorized investments described in
the Public Funds Investment Act of 1987, Chapter 2256, Texas Government Code, which the
City may purchase and sell and in which it may invest its funds and funds under its control in
accordance with the City's investment policy approved from time to time by the City Council.
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"EMMA" shall mean the Electronic Municipal Marketplace Access system maintained
by the MSRB.
"Extended Maturity Date" shall mean, for each Commercial Paper Note, the date
specified in the Extension Notice as the maturity date to which the maturity of such Commercial
Paper Note is to be extended, which maturity date shall be a Business Day; provided, that an
Extended Maturity Date shall not established in violation of the provisions of Section 2.02.
"Extended Rate" shall mean the rate of interest per annum determined by the following
formula: the greater of(SIFMA Index+E) or F.
The Extended Rate applicable to a Commercial Paper Note will be determined by the Issuing and
Paying Agent as provided in Section 2.03. As used in the formula set forth above in this
definition, the E and F variables shall be the fixed percentage rates, expressed in basis points and
yields, respectively, determined based on the Prevailing Rating of S&P, if then rating the
Commercial Paper Notes at the request of the City, as follows:
Prevailing Rating-
S&P E Variable F Variable
A-1+ 250 bps 7.00%
A-1 350 bps 7.50%
A-2 550 bps 8.00%
Lower than A-2 Max Rate Max Rate
(or rating
withdrawn for
credit reasons)
If the City obtains another rating on the Commercial Paper Notes from a credit rating agency, the
Issuing and Paying Agent shall, upon written direction of the Authorized Representative,
following consultation with the Authorized Representative and the Dealer, determine how the
credit rating agency's rating categories shall be treated for the purpose of indicating an E or F
variable. In no event shall the Extended Rate exceed the Maximum Interest Rate.
"Extension Notice" shall mean the notice provided to the Issuing and Paying Agent and
the Dealer by an Authorized Representative to extend the Original Maturity Date of a
Commercial Paper Note to an Extended Maturity Date, in substantially the form set forth in
Exhibit C to this Ordinance.
"Federal Tax Certificate" shall mean a certificate executed by the City, acting through an
Authorized Representative, setting forth reasonable expectations of the City relating to the
issuance of Commercial Paper Notes and the expenditure of the proceeds thereof, in connection
with the issuance of Commercial Paper Notes as obligations, the interest on which is exempt
from federal income taxation under the Code.
"Fiscal Year" shall mean any consecutive twelve-month period declared by the City as its
fiscal year,which currently runs from October 1 through September 30.
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"Form 8038-G" shall mean the federal income tax form to be filed under the Code and
applicable Treasury Regulations in connection with the issuance of Commercial Paper Notes as
obligations,the interest on which is exempt from federal income taxation under the Code.
"General Purpose Bonds" shall mean the general obligation bonds, in an aggregate
principal amount not to exceed $643,165,000, authorized by the voters within the Issuer at the
Elections, for the following public purposes in the Issuer: (i) street and pedestrian mobility
improvements in the aggregate principal amount of$423,450,080; (ii)public safety facilities for
the fire and police departments in the aggregate principal amount of$45,370,820; (iii) park and
recreation facilities in the aggregate principal amount of$141,975,600; (iv) library facilities in
the aggregate principal amount of $17,368,500; and (v) public open space facilities in the
aggregate principal amount of$15,000,000.
"Holder" or"Noteholder" shall mean any person, firm, association, or corporation who is
in possession of any Note drawn, issued or endorsed to such person, firm, association or
corporation or to the order of such person, firm, association or corporation or to bearer or in
blank.
"Issuance Request" shall mean the instructions provided to the Issuing and Paying Agent
by an Authorized Representative in the manner set forth in Section 3.02 hereof, and in
substantially the form set forth in Exhibit B to the Issuing and Paying Agent Agreement.
"Issuing and Paying Agent", "Paying Agent/Registrar" or "Registrar" shall mean the
agent the appointment of which is confirmed pursuant to Section 2.03 hereof, or any successor to
such agent.
"Issuing and Paying Agent Agreement" shall mean the agreement approved and
authorized to be entered into by Section 3.04 hereof, as from time to time amended or
supplemented.
"Master Note" shall mean the "Master Note" as defined in Section 2.05 hereof.
"Maximum Interest Rate"or"Max Rate" shall mean 10%per annum.
"Maximum Maturity Date" shall mean twenty (20) years following the date of passage of
this Ordinance.
"MSRB" shall mean the Municipal Securities Rulemaking Board.
"Note" or "Notes" shall mean the evidences of indebtedness authorized to be issued and
at any time Outstanding pursuant to this Ordinance and shall include Commercial Paper Notes
(including the Master Note), and notes in such form or forms as shall be approved by the City
Council in an ordinance amending this Ordinance.
"Note Date"shall have the meaning given said term in Section 2.03 hereof.
"Offering Memorandum" shall mean the Offering Memorandum relating to the
Commercial Paper Notes,as periodically updated in accordance with Section 6.08 hereof.
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"Original Interest Rate" shall mean, for each Commercial Paper Note, the rate of interest
per annum borne by such Commercial Paper Note to its Original Maturity Date.
"Original Maturity Date" shall mean, for each Commercial Paper Note, the date specified
in the Issuance Request as the original date of maturity of the Commercial Paper Note; provided
that the limitations set forth in Section 2.02 hereof apply to establishing the Original Maturity
Date of any Commercial Paper Note.
"Outstanding" shall mean, when used with respect to the Commercial Paper Notes, as of
the date of determination, all Commercial Paper Notes theretofore delivered under this
Ordinance, except:
(1) Commercial Paper Notes theretofore canceled and delivered to the City or
delivered to the Issuing and Paying Agent for cancellation;
(2) Commercial Paper Notes deemed paid pursuant to the provisions of
Chapter 1207, Texas Government Code; and
(3) Commercial Paper Notes upon transfer, or in exchange for or in lieu, of
which other Commercial Paper Notes have been authenticated and delivered pursuant to
this Ordinance;
provided, that in determining whether the Holders of the requisite principal amount of
Outstanding Commercial Paper Notes have given any request, demand, authorization, direction,
notice, consent, or waiver hereunder, any Commercial Paper Note owned by the City shall be
deemed to be Outstanding as though it was owned by any other Holder.
"Prevailing Rating" shall mean, at the time of determination, the rating assigned to the
Commercial Paper Notes by S&P, or any comparable future designation by S&P, as the case
may be.
"Project Costs" shall mean all costs and expenses incurred in relation to the Projects and
permitted by law to be paid with the proceeds of the Commercial Paper Notes, including without
limitation, design, planning, engineering, and legal costs; acquisition costs of land, interests in
land, right of way, and easements; construction costs; costs of machinery, equipment, and other
capital assets incident and related to the operation, maintenance, and administration of the
Projects; and Costs of Issuance.
"Projects" shall mean the design, construction and renovation of street and pedestrian
mobility improvements, public safety facilities for the fire and police departments, park and
recreation facilities, library facilities and public open space facilities, including the acquisition of
land and rights-of-way for such improvements and facilities, all in accordance with and subject
to the propositions approved at the Elections for such purposes which are listed or otherwise
described in a Tax Certificate of the Issuer, as being financed in whole or in part with the
proceeds of the Commercial Paper Notes.
"Rating Agency" shall mean S&P, if such entity is then providing a rating on the
Commercial Paper Notes at the request of the City, or such other nationally recognized credit
rating agency providing a rating on the Commercial Paper Notes at the request of the City.
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"Rebate Fund" shall mean the fund so designated in Section 4.04 hereof.
"Refunding Bonds" shall mean refunding General Purpose Bonds of the Issuer authorized
to be issued pursuant to a Refunding Ordinance to retire or defease Commercial Paper Notes.
"Refunding Ordinance" shall mean any ordinance adopted by the City Council from time
to time, authorizing the issuance of the Refunding Bonds.
"Registration Books" shall have the meaning given said term in Section 2.03 hereof.
"Rule" shall mean SEC Rule 15c2-12, as amended from time to time.
"S&P" shall mean S&P Global Ratings, a Standard & Poor's Financial Services LLC
business., or, if such entity is dissolved or liquidated or otherwise ceases to perform securities
rating services, such other nationally recognized securities rating agency as may be designated in
writing by the City.
"SEC" shall mean the United States Securities and Exchange Commission.
"Series" shall mean a series of Notes issued pursuant to this Ordinance; the Outstanding
Notes of each series of Notes, when aggregated with all Outstanding Notes of other series, may
be in an aggregate amount up to the full Authorized Amount regardless of when or whether
issued.
"Series ECP Note Construction Account" shall mean the account so designated in Section
2.11 hereof.
"Series ECP Note Payment Fund" shall mean the fund so designated in Section 2.09
hereof.
"SIFMA" shall mean the Securities Industry and Financial Markets Association.
"SIFMA Index" shall mean, as of any date, (i) the seven-day high grade market index of
tax-exempt variable rate demand obligations, as most recently calculated by Bloomberg and
published or made available by SIFMA or any person acting in cooperation with or under the
sponsorship of SIFMA or (ii) if such index is not published, such other publicly available rate as
the City (in consultation with the Dealer) shall deem most nearly equivalent thereto. Such index
may be expressed as a percentage of(more or less than, or equal to, 100%) and/or a fixed spread
to another index, and in no event shall the interest rate calculated on the basis of the SIFMA
Index exceed the Maximum Interest Rate.
"Treasury Regulations" shall mean the regulations of the U.S. Department of the
Treasury promulgated under the Code or, if applicable, the Internal Revenue Code of 1954.
Section 1.02. Construction of Terms Utilized in this Ordinance. If appropriate in the
context of this Ordinance, words of the singular number shall be considered to include the plural,
words of the plural number shall be considered to include the singular, and words of the
masculine, feminine or neuter gender shall be considered to include the other genders. For all
purposes of this Ordinance, unless the context requires otherwise, all references to designated
Sections and other subdivisions are to the Sections and other subdivisions of this Ordinance.
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The words "herein", "hereof' and "hereunder" and other words of similar import refer to this
Ordinance as a whole and not to any particular Section or other subdivision. References to any
named person means that party and its successors and assigns. References to an officer or
designated position (e.g., City Manager) include any person acting in the capacity of such officer
or designated position, whether on an acting, interim or permanent basis. References to any
constitutional, statutory or regulatory provision means
such provision as it exists on the date this Ordinance is adopted by the City and any future
amendments thereto or successor provisions thereof. References to time in this Ordinance shall
be to prevailinpime in New York,New York.
ARTICLE II
AUTHORIZATION OF NOTES
Section 2.01. General Authorization. Pursuant to authority conferred by and in
accordance with the provisions of the Constitution and laws of the State of Texas, particularly
the Act, Notes are hereby authorized to be issued in an aggregate principal amount not to exceed
the Authorized Amount at any one time Outstanding for the purpose of financing Projects and
paying Project Costs and to refinance, renew, or refund the principal amount of Outstanding
Notes, all in accordance with and subject to the terms, conditions, and limitations contained
herein; provided that the maximum aggregate principal amount of Notes that may be issued
under this Ordinance shall be reduced by the aggregate principal amount of all then Outstanding
Notes. For purposes of this Section 2.01, any portion of Outstanding Notes to be paid from
money on deposit with the Issuing and Paying Agent and from the available proceeds of
Refunding Bonds or other obligations of the Issuer issued on the day of calculation shall not be
considered Outstanding. The authority to issue Notes from time to time under the provisions of
this Ordinance shall exist until the Program Expiration Date, regardless of whether at any time
prior to the Program Expiration Date there are any Notes Outstanding.
(b) As determined by an Authorized Representative in accordance with Section 2.02 and
in consultation with Bond Counsel in accordance with Section 4.03 hereof for each issuance of
Notes, such Notes shall be issued as obligations, the interest on which is excludable from the
gross income of the owners thereof for federal income tax purposes, pursuant to section 103 of
the Code.
(c) In connection with the refinancing or refunding of Outstanding Notes through the
issuance of Notes, such Notes shall qualify as "obligations," as such term is defined in the Act at
the time any such refinancing or refunding occurs. The Outstanding Notes to be refunded shall
be selected by the City Council or as determined by an Authorized Representative.
Section 2.02. Commercial Paper Notes. Under and pursuant to the authority granted
hereby and subject to the limitations contained herein, Commercial Paper Notes to be designated
"City of Fort Worth, Texas General Purpose Commercial Paper Notes, Series ECP" are
hereby authorized to be issued and sold and delivered from time to time in such principal
amounts as determined by the City, acting through its Authorized Representatives, in
denominations of$100,000 or in integral multiples of$1.000 in excess of$100,000, numbered in
ascending consecutive numerical order in the order of their issuance, and shall mature and
become due and payable on such dates as an Authorized Representative shall determine at the
time of sale; provided, however, that no Commercial Paper Note shall (i) mature after the
Maximum Maturity Date or (ii) have a term, from the Note Date to its Original Maturity Date, of
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less than one day or more than 90 days or (iii) have a term from the Note Date to its Extended
Maturity Date in excess of 270 calendar days.
Section 2.03. Terms Applicable to Notes - General. Subject to the limitations contained
herein, Commercial Paper Notes herein authorized shall be dated as of their date of issuance (the
"Note Date"), as determined by the City, acting through its Authorized Representatives; shall
bear interest at such rate or rates of interest per annum computed on the basis of actual days
elapsed and a 365-day or 366-day year, as applicable (but in no event in any case to exceed the
Maximum Interest Rate) as may be determined by the City, acting through its Authorized
Representatives, and all Commercial Paper Notes authorized herein shall mature on or prior to
the Maximum Maturity Date.
Each Commercial Paper Note shall bear interest from the Note Date until the Original
Maturity Date at the Original Rate. Interest, if any, on Commercial Paper Notes shall be payable
on any Original Maturity Date. The foregoing notwithstanding, on any Original Maturity Date,
if the Authorized Representative exercises the option to extend the Original Maturity Date to an
Extended Maturity Date, the Commercial Paper Notes will bear interest from the Original
Maturity Date to the Extended Maturity Date at the Extended Rate. If the Authorized
Representative exercises the option in accordance with this Ordinance to extend the Original
Maturity Date of any Commercial Paper Note to an Extended Maturity Date, the accrued but
unpaid interest on the Commercial Paper Note, but not the principal of the Commercial Paper
Note, shall be paid on its Original Maturity Date. The Extended Rate will be determined by the
Issuing and Paying Agent based on the Prevailing Ratings available as of 11:00 a.m. on the
Original Maturity Date and on each Thursday thereafter until the Extended Maturity Date or the
date fixed for redemption of such Commercial Paper Notes and will apply from that Thursday
through the following Wednesday, the Extended Maturity Date, or the date fixed for redemption
of such Commercial Paper Notes, as the case may be. If the Original Maturity Date is before the
15th day of the month, interest shall be payable on the first Business Day of the next month and
on the first Business Day of each month thereafter and on the Extended Maturity Date for this
Commercial Paper Note or the date fixed for redemption of such Commercial Paper Notes, as the
case may be. If the Original Maturity Date is on or after the 15th day of the month, interest shall
be payable on the first Business Day of the second succeeding month and on the first Business
Day of each month thereafter, and on the Extended Maturity Date for this Commercial Paper
Note or the date fixed for redemption of such Commercial Paper Notes, as the case may be.
Commercial Paper Notes may be payable to bearer or may be issued in registered form,
without coupons, or may be issued in book-entry-only form pursuant to this Section 2.03 as
determined by the City, acting through its Authorized Representatives. Both principal of and
interest on the Commercial Paper Notes shall be payable in lawful money of the United States of
America, without exchange or collection charges to the Holder thereof in the manner provided in
the Form of Commercial Paper Notes set forth in Exhibit A hereof.
Commercial Paper Notes issued hereunder may contain terms and provisions for the
payment, redemption or prepayment thereof prior to maturity, subject to any applicable
limitations contained herein, as provided herein (including, without limitation, Section 2.04
hereof) or otherwise as shall be determined by an Authorized Representative; provided, however,
that the Commercial Paper Notes shall not be subject to redemption prior to their Original
Maturity Date.
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Subject to applicable terms, limitations, and procedures contained herein, the
Commercial Paper Notes may be sold in such manner at public or private sale and at par or at
such discount or premium (within the interest rate and yield restrictions provided herein) as an
Authorized Representative shall approve at the time of the sale thereof.
The selection and appointment of U.S. Bank Trust Company, National Association, New
York, New York,to serve as Issuing and Paying Agent, Paying Agent/Registrar and Registrar for
the Commercial Paper Notes is hereby confirmed and the City covenants and agrees to keep and
maintain with the Registrar at its Designated Office books and records (the "Registration
Books") for the registration, payment, transfer and exchange of the Commercial Paper Notes, all
as provided herein and in such reasonable rules and regulations as the Registrar may prescribe.
The City covenants to maintain and provide a Registrar at all times while the Commercial Paper
Notes are Outstanding, which shall be a national or state banking association or corporation or
trust company organized and doing business under the laws of the United States of America or of
any state and authorized under such laws to exercise trust powers. Should a change in the Paying
Agent/Registrar for the Commercial Paper Notes occur, the City agrees to promptly cause a
written notice thereof to be sent to each registered owner of the Commercial Paper Notes then
Outstanding by United States mail, first-class postage prepaid. Such notice shall give the address
of the successor Paying Agent/Registrar. A successor Paying Agent/Registrar may be appointed
by the City without the consent of the Holders.
A copy of the Registration Books and any change thereto shall be provided to the City by
the Paying Agent/Registrar, by means of telecommunications equipment or such other means as
may be mutually agreeable thereto, within two (2) Business Days of the opening of such
Registration Books or any change therein, as the case may be.
The City and the Paying Agent/Registrar may treat the bearer (in the case of Commercial
Paper Notes so registered) or the registered payee thereof as the absolute owner of any
Commercial Paper Note for the purpose of receiving payment thereof and for all purposes, and
the City and the Paying Agent/Registrar shall not be affected by any notice or knowledge to the
contrary.
The City intends for the Commercial Paper Notes to be issued in accordance with the
book-entry-only system of Commercial Paper Note registration with DTC. Authorized
Representatives, acting for and on behalf of the City, are hereby authorized to approve, execute,
and deliver a Commercial Paper Notes Letter of Representations to DTC and to enter into such
other agreements and execute such instruments as are necessary to implement such book-entry-
only system, such approval to be conclusively evidenced by the execution thereof by an
Authorized Representative. Except as provided herein, the ownership of the Commercial Paper
Notes shall be registered in the name of Cede & Co., as nominee of DTC, which will serve as the
initial securities depository for the Commercial Paper Notes. Ownership of beneficial interests
in the Commercial Paper Notes shall be shown by book-entry on the system maintained and
operated by DTC and DTC Participants, and transfers of ownership of beneficial interests shall
be made only by DTC and the DTC Participants by book-entry, and the City and the Issuing and
Paying Agent shall have no responsibility therefor. DTC will be required to maintain records of
the positions of the DTC Participants in the Commercial Paper Notes, and the DTC Participants
and persons acting through the DTC Participants will be required to maintain records of the
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purchasers of beneficial interests in the Commercial Paper Notes. During any period when a
book-entry-only system is in effect, except as provided above in this paragraph, the Commercial
Paper Notes shall not be transferable or exchangeable, except for transfer to another securities
depository or to another nominee of a securities depository.
With respect to Commercial Paper Notes registered in the name of DTC or its nominee,
neither the City nor the Issuing and Paying Agent shall have any responsibility or obligation to
any DTC Participant or to any person on whose behalf a DTC Participant holds an interest in the
Commercial Paper Notes. Without limiting the immediately preceding sentence, neither the City
nor the Issuing and Paying Agent shall have any responsibility or obligation with respect to (i)
the accuracy of the records of DTC or any DTC Participant with respect to any ownership
interest in the Commercial Paper Notes, (ii) the delivery to any DTC Participant or any other
person, other than a registered owner of the Commercial Paper Notes, as shown on the
Registration Books, of any notice with respect to the Commercial Paper Notes, including any
notice of redemption, and (iii) the payment to any DTC Participant or any other person, other
than a registered owner of the Commercial Paper Notes, as shown in the Registration Books, of
any amount with respect to principal of or interest on the Commercial Paper Notes.
Whenever, during the term of the Commercial Paper Notes, the beneficial ownership
thereof is determined by a book entry at DTC, the requirements in this Ordinance of holding,
registering, delivering, exchanging, or transferring the Commercial Paper Notes shall be deemed
modified to require the appropriate person or entity to meet the requirements of DTC as to
holding, registering, delivering, exchanging, or transferring the book-entry to produce the same
effect.
Whenever the beneficial ownership of the Commercial Paper Notes is determined by a
book-entry at DTC, delivery of Commercial Paper Notes for payment at maturity shall be made
pursuant to DTC's payment procedures as are in effect from time to time and the DTC
Participants shall transmit payment to beneficial owners whose Commercial Paper Notes have
matured. The City and each of the Issuing and Paying Agent and the Dealer are not responsible
for transfer of payment to the DTC Participants or beneficial owners.
The City or DTC may determine to discontinue the book-entry-only system and in such
case, unless a new book-entry-only system is put in place, physical certificates in the form set
forth in Exhibit A shall be provided to the beneficial owners thereof.
If at any time, DTC ceases to hold the Commercial Paper Notes, all references herein to
DTC shall be of no further force or effect.
Section 2.04. Extension. (a) Notice of Extension. To exercise the option to extend the
Original Maturity Date of a Commercial Paper Note to an Extended Maturity Date, the
Authorized Representative, acting for and on behalf of the City, shall deliver to the Issuing and
Paying Agent and the Dealer an Extension Notice by no later than 11:30 a.m. on the Original
Maturity Date. The Issuing and Paying Agent shall correspondingly notify (i) by no later than
12:00 noon on the Original Maturity Date, DTC and (ii) by no later than 5:00 p.m. on the
Original Maturity Date, both (A) any Rating Agency then maintaining a rating on the
Commercial Paper Notes and (B) EMMA that the maturity of such Commercial Paper Note has
been extended to the Extended Maturity Date set forth in an Extension Notice. Even if the
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requisite notices are not given, if payment of the principal of a Commercial Paper Note does not
occur on the Original Maturity Date, the maturity of the Commercial Paper Note shall be
extended automatically to the Extended Maturity Date set forth in the Extension Notice. With the
consent of the Issuing and Paying Agent and the Dealer, the Authorized Representative may
modify the notification provisions contained in this Section 2.04(a) if deemed appropriate to
conform to DTC's rules and procedures.
(b) No Redemption Prior to Original Maturity Date. The Commercial Paper Notes shall
not be subject to redemption prior to their Original Maturity Date.
(c) Redemption following Extension of Original Maturity Date. In the event the City,
acting through an Authorized Representative, exercises its option to extend the maturity of any
Commercial Paper Note from its Original Maturity Date to an Extended Maturity Date, that
Commercial Paper Note may be redeemed on any date after its Original Maturity Date, at the
option of the City, at a redemption price equal to par (100%), plus accrued and unpaid interest to
the redemption date. To exercise its redemption option, an Authorized Representative shall
provide not less than five (5) nor more than twenty five (25) calendar days' notice to the Issuing
and Paying Agent. The Issuing and Paying Agent will notify DTC of the Commercial Paper
Notes to be redeemed within one Business Day of receipt of such notice.
(d) No Default. In no event shall an extension of the Original Maturity Date constitute a
default or a breach of any covenant under this Ordinance.
Section 2.05. Form of Commercial Paper Notes. The Commercial Paper Notes and the
Certificate of Authentication to appear on each of the Commercial Paper Notes shall be
substantially in the form set forth in Exhibit A to this Ordinance, with such appropriate
insertions, omissions, substitutions and other variations as are permitted or required by this
Ordinance and may have such letters, numbers or other marks of identification (including
identifying numbers and letters of the Committee on Uniform Securities Identification
Procedures of the American Bankers Association) and such legends and endorsements thereon as
may, consistently herewith, be approved by an
Authorized Representative. Any portion of the text of any Commercial Paper Notes may be set
forth on the reverse thereof, with an appropriate reference thereto on the face of the Commercial
Paper Notes. The Commercial Paper Notes shall be printed, lithographed, or engraved or
produced in any other similar manner, or typewritten, all as determined and approved by an
Authorized Representative.
If Commercial Paper Notes are issued in book-entry-only form pursuant to Section 2.03,
(i) no physical Commercial Paper Note certificates will be delivered to DTC and (ii) the City will
execute and deliver to the Issuing and Paying Agent, as custodian for DTC, a master note
relating to the Commercial Paper Notes (the "Master Note") in substantially the form set forth in
Exhibit B. The form of Commercial Paper Note as prescribed in Exhibit A shall be attached to
the Master Note, and it is hereby declared that the provisions of the Commercial Paper Note as
prescribed in Exhibit A shall be incorporated into and shall be a part of the Master Note for all
purposes of this Ordinance. It is further provided that this Ordinance and the form of
Commercial Paper Note prescribed in Exhibit A shall constitute the "underlying records"
referred to in the Master Note. Notwithstanding the provisions of Section 2.06, the Master Note
shall be executed on behalf of the City by the manual signature of the City Manager.
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Section 2.06. Execution - Authentication. The Notes (other than the Master Note) shall
be executed on behalf of the City by the Mayor, attested by the City Secretary under its seal
reproduced or impressed thereon, and approved as to form by the City Attorney, all as provided
in Exhibit A. The signatures of said officers on the Commercial Paper Notes may be manual or
facsimile. Commercial Paper Notes bearing the manual or facsimile signatures of individuals
who are or were the proper officers of the City on the date of passage of this Ordinance shall be
deemed to be duly executed on behalf of the City, notwithstanding that such individuals or either
of them shall cease to hold such offices at the time of the initial sale and delivery of Commercial
Paper Notes authorized to be issued hereunder or at the time Commercial Paper Notes are
delivered in subsequent sales, exchanges and transfers, all as authorized and provided in Chapter
1201, Texas Government Code.
No Commercial Paper Note shall be entitled to any right or benefit under this Ordinance,
or be valid or obligatory for any purpose, unless there appears on such Commercial Paper Note a
certificate of authentication executed by the Paying Agent/Registrar by manual signature, or, in
the case of the Master Note, the Paying Agent/Registrar has executed the Master Note, and the
execution of any Commercial Paper Note by the Paying Agent/Registrar shall be conclusive
evidence, and the only evidence, that such Commercial Paper Note has been duly certified or
registered and delivered.
Section 2.07. Notes Mutilated, Lost, Destroyed or Stolen. If any Note shall become
mutilated, the City, at the expense of the Holder of said Note, shall execute and deliver a new
Note of like tenor and number in exchange and substitution for the Note so mutilated, but only
upon surrender to the City of the Note so mutilated. If any Note shall be lost, destroyed or
stolen, evidence of such loss, destruction or theft may be submitted to the City and, if such
evidence be satisfactory to it and indemnity satisfactory to it shall be given, the City, at the
expense of the Holder, shall execute and deliver a new Note of like tenor in lieu of and in
substitution for the Note so lost, destroyed or stolen. Neither the City nor the Paying
Agent/Registrar shall be required to treat both the original Note and any duplicate Note as being
Outstanding for the purpose of determining the
principal amount of Notes which may be issued hereunder, but both the original and the
duplicate Note shall be treated as one and the same.
Section 2.08. Negotiability, Registration and Exchangeability. The Notes issued
hereunder shall be and shall have all of the qualities and incidents of, a negotiable instrument
under the laws of the State of Texas, and each successive Holder, in accepting any of the
obligations, shall be conclusively deemed to have agreed that such obligations shall be and have
all of the qualities and incidents of a negotiable instrument under the laws of the State of Texas.
The Registration Books relating to the registration, payment and transfer or exchange of
the Commercial Paper Notes shall at all times be kept and maintained by the City at the
Designated Office of the Registrar, and the Registrar shall obtain, record and maintain in the
Registration Books the name and address of each registered owner of the Commercial Paper
Notes, except for Commercial Paper Notes registered to bearer, issued under and pursuant to the
provisions of this Ordinance, and the Registrar further shall provide such information to the City
as described in Section 2.03 hereof. Any Commercial Paper Note may, in accordance with its
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terms and the terms hereof, be transferred or exchanged for Commercial Paper Notes of like
tenor and character and of other authorized denominations upon the Registration Books by the
Holder in person or by his duly authorized agent, upon surrender of such Commercial Paper Note
to the Registrar for cancellation, accompanied by a written instrument of transfer or request for
exchange duly executed by the Holder or by his duly authorized agent, in form satisfactory to the
Registrar.
Upon surrender for transfer of any Commercial Paper Note at the Designated Office of
the Registrar, the Registrar shall register and deliver, in the name of the designated transferee or
transferees (or to bearer, as appropriate), one or more new Commercial Paper Notes executed on
behalf of, and furnished by, the City of like tenor and character and of authorized denominations
and having the same maturity, bearing interest at the same rate or rates and of a like aggregate
principal amount as the Commercial Paper Note or Commercial Paper Notes surrendered for
transfer.
Furthermore, Commercial Paper Notes may be exchanged for other Commercial Paper
Notes of like tenor and character and of authorized denominations and having the same maturity,
bearing the same rate or rates of interest and of like aggregate principal amount as the
Commercial Paper Notes surrendered for exchange, upon surrender of the Commercial Paper
Notes to be exchanged at the Designated Office of the Registrar. Whenever any Commercial
Paper Notes are so surrendered for exchange, the Registrar shall register and deliver new
Commercial Paper Notes of like tenor and character as the Commercial Paper Notes exchanged,
executed on behalf of, and furnished by,the City to the Holder requesting the exchange.
The City and the Registrar may charge the Noteholder a sum sufficient to reimburse them
for any expenses incurred in making any exchange or transfer after the first such exchange or
transfer. The Registrar or the City may also require payment from the Holder of a sum sufficient
to cover any tax, fee or other governmental charge that may be imposed in relation thereto. Such
charges and expenses shall be paid before any such new Commercial Paper Note shall be
delivered.
New Commercial Paper Notes delivered upon any transfer or exchange shall be valid
obligations of the City, evidencing the same debt as the Commercial Paper Notes surrendered,
shall be secured by this Ordinance and shall be entitled to all of the security and benefits hereof
to the same extent as the Commercial Paper Notes surrendered.
The City reserves the right to change the above registration and transferability provisions
of the Commercial Paper Notes at any time on or prior to the delivery thereof in order to comply
with applicable laws and regulations of the United States in effect at the time of issuance thereof.
Section 2.09. Series ECP Note Payment Fund. Upon the first issuance of Commercial
Paper Notes,the City shall create and establish with the Issuing and Paying Agent a separate and
special fund designated as the "City of Fort Worth, Texas General Purpose Series ECP Note
Payment Interest and Sinking Fund" (the "Series ECP Note Payment Fund"). Moneys on
deposit in the Series ECP Note Payment Fund shall be used to pay principal of and interest on
Commercial Paper Notes at the respective interest payment, redemption and maturity dates of
each issue thereof as provided herein. Amounts remaining in the Series ECP Note Payment
Fund not then necessary for the purposes thereof may be transferred to the Series ECP Note
Construction Account (created pursuant to Section 2.11 hereof) upon request of an Authorized
Representative.
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Pending the expenditure of moneys in the Series ECP Note Payment Fund for authorized
purposes, moneys deposited therein may be invested in Eligible Investments at the direction of
the Chief Financial Officer/Director of Financial Management Services of the City or the
designee thereof.
Section 2.10. Security and Pledge; Payments; Tax Levy. (a) During any year while the
Notes (including both principal and interest) are Outstanding or unpaid, the City Council shall
compute and ascertain a rate and amount of ad valorem taxes which will be sufficient to raise
and produce the money required to provide for the payment of the interest thereon as such
interest comes due and to provide and maintain a sinking fund adequate to pay the principal
thereon as such principal matures (but never less than 2% of the Issuer's outstanding
indebtedness, including the principal amount of the Notes then Outstanding at the time of such
tax levy); and such tax shall be based on the latest approved tax rolls of the Issuer, with full
allowance being made for tax delinquencies and the cost of tax collection. Such rate and amount
of ad valorem taxes are hereby levied, and are hereby ordered to be levied, within the limits
prescribed by law, against all taxable property in the Issuer for each year while any of the Notes
or interest thereon are Outstanding; such tax shall be assessed and collected in each such year;
and the proceeds of such tax shall be appropriated and applied to the payment of the interest on
and principal of the Notes as and when due.
(b) There is hereby allocated, from lawfully available funds of the Issuer, amounts
sufficient to pay interest on the Notes reasonably anticipated to be issued and payable prior to the
collection of the first tax levy for the Notes based upon interest rates actually authorized and/or
the maximum amount of interest payable on the Notes projected to come due prior to the
collection of taxes.
(c) In determining the amount of taxes to be levied and the amount of other funds to
be allocated to the payment of the principal of and interest on the Notes from and after the first
tax levy, the Issuer may take into account any other sources of funding that are lawfully available
or are to be lawfully available for payment of such principal of and interest on the Notes and may
take into account any legal limitation regarding the maximum rate or amount of interest that may
be payable on the Notes from time to time.
(d) The payment of the principal of and interest on the Notes are and shall be secured
by and payable from a lien on and pledge of the following, subject to the provisions of this
Ordinance permitting the application thereof for the purposes and on the terms and conditions set
forth herein: (i) the proceeds from the sale of Notes to refinance the principal amount of
maturing Notes (i.e., "roll"), (ii) the proceeds of Refunding Bonds to be issued by the Issuer to
pay the principal of and interest on Notes, (iii) the proceeds of the tax levy set forth in this
Section 2.10, and (iv) all amounts in the funds and accounts created or maintained pursuant to
this Ordinance and the Issuing and Paying Agent Agreement(except the Rebate Fund), including
earnings on such amounts, and such amounts constitute funds held for that purpose, subject only
to the provisions of this Ordinance and the Issuing and Paying Agent Agreement permitting the
application thereof for the purposes and on the terms and conditions set forth herein and therein.
The pledge herein made shall be irrevocable until all of the Notes have been paid and retired.
The granting of this pledge by the Issuer does not limit in any manner the rights of the Issuer to
issue any additional debt or incur any other obligations. The Notes are not secured by or payable
from a mortgage or deed of trust on any properties, whether real, personal, or mixed, nor from
any source other than as specified in this Ordinance.
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(e) The Issuer covenants to pay the principal of, premium, if any, and the interest on
the Notes when due, whether by reason of maturity or redemption.
(f) Chapter 1208, Texas Government Code, applies to the issuance of the Notes and
the pledge of the proceeds of the sale of Notes or Refunding Bonds under this section and the
pledge of taxes under this Section 2.10, and such pledge is therefore valid, effective, and
perfected. If State law is amended at any time while the Notes are outstanding such that the
pledge granted by the Issuer under this section is to be subject to the filing requirements of
Chapter 9, Texas Business and Commerce Code, then in order to preserve to the Holders of the
Notes the perfection of the security interest in said pledge, the Issuer agrees to take such
measures as it determines are reasonable and necessary under State law to comply with the
applicable provisions of Chapter 9, Texas Business and Commerce Code and enable a filing to
perfect the security interest in said pledge to occur.
Section 2.11. Series ECP Note Construction Account. Upon the first issuance of
Commercial Paper Notes, the City shall create and establish on the records of the City a separate
account designated as the "City of Fort Worth, Texas General Purpose Series ECP Note
Construction Account" (the "Series ECP Note Construction Account"). Moneys deposited in
the Series ECP Note Construction Account shall remain therein until from time to time expended
to pay for Project Costs, and to refund Notes issued in connection with Projects and shall not be
used for any other purposes whatsoever, except as otherwise provided below, and pending such
expenditure, moneys in said Account may be invested at the direction of the Chief Financial
Officer/Director of Financial Management Services of the City or the designee thereof in
Eligible Investments.
Any amounts on deposit in the Series ECP Note Construction Account designated by an
Authorized Representative as eligible to pay interest during construction and thereafter may be
transferred from time to time at the direction of an Authorized Representative to the credit of the
Series ECP Note Payment Fund for use in accordance with the terms of Section 2.09 hereof.
Any amounts remaining in the Series ECP Note Construction Account after the payment of all
Project Costs shall be paid into the Series ECP Note Payment Fund and used for the payment of
such maturities of the Commercial Paper Notes coming due at such times as may be selected by
an Authorized Representative.
Section 2.12. Cancellation. All Commercial Paper Notes which at maturity or
redemption are surrendered to the Paying Agent/Registrar for the collection of the principal and
interest thereof or are surrendered for transfer or exchange pursuant to the provisions hereof
shall, upon payment or issuance of new Commercial Paper Notes, be cancelled by the Paying
Agent/Registrar, and the Paying Agent/Registrar forthwith shall transmit to the City a certificate
identifying such Commercial Paper Notes and that such Commercial Paper Notes have been duly
cancelled and destroyed.
Section 2.13. Fiscal and Other Agents. In furtherance of the purposes of this Ordinance,
the City may from time to time appoint and provide for the payment of such additional fiscal,
paying or other agents or trustees as it may deem necessary or appropriate in connection with the
Notes.
Section 2.14. Funds Secured. Moneys in all funds and accounts created or maintained
pursuant to this Ordinance or the Issuing and Paying Agent Agreement, to the extent not invested
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as permitted hereunder, shall be secured in the manner prescribed by law for securing funds of
the City.
Section 2.15. Liquidity. The City reserves the option, but is not required, to provide
liquidity in support of all or any of the Commercial Paper Notes to be Outstanding under this
Ordinance from its available funds, in amounts as further provided in Sections 4.02(b) and 4.03
of this Ordinance. The City reserves the option, but is not required, to enter into one or more
liquidity or credit agreements to provide liquidity or credit in such amounts as determined by the
City in support of all or any of the Commercial Paper Notes to be Outstanding under this
Ordinance, and to execute all necessary instruments in connection therewith. The City agrees to
provide written notice to the Dealer, the Issuing and Paying Agent and any Rating Agency then
maintaining a rating on the Commercial Paper Notes, at least thirty (30) days prior to the date on
which the City provides liquidity in support of the Commercial Paper Notes, and, in the case of
liquidity or credit to be provided in accordance with the terms of a liquidity and/or credit
agreement, a copy of the proposed form of such agreement.
ARTICLE III
ISSUANCE AND SALE OF NOTES
Section 3.01. Issuance and Sale of Commercial Paper Notes. All Commercial Paper
Notes shall be issued as "obligations" under the Act. All Commercial Paper Notes shall be sold
in the manner determined by the City, acting through its Authorized Representatives, to be most
economically advantageous to the City.
The Commercial Paper Notes shall be completed and delivered by the Issuing and Paying
Agent in accordance with an Issuance Request executed by the City, acting through its
Authorized Representatives, and delivered to the Issuing and Paying Agent. The Issuance
Request shall be prepared in the manner specified below and in the Issuing and Paying Agent
Agreement. To the extent such instructions are not written, they shall be confirmed in writing by
the City, acting through its Authorized Representatives, within twenty-four (24) hours. Said
instructions shall specify such principal amounts, Note Dates, Original Interest Rates, Original
Maturity Dates, and other terms and conditions which are hereby authorized and permitted to be
fixed by the Authorized Representative at the time of sale of the Commercial Paper Notes. Such
instructions shall include the purchase price of the Commercial Paper Notes, and a request that
the Issuing and Paying Agent authenticate such Commercial Paper Notes by counter signature of
its authorized officer or employee and deliver them to the named purchaser or purchasers thereof
upon receipt of payment in accordance with the custom then prevailing in the New York
financial market in regard to such Commercial Paper Notes. The rules of the New York
Clearinghouse shall apply thereto. Such instructions shall also contain provisions representing
that all action on the part of the City necessary for the valid issuance of the Commercial Paper
Notes then to be issued has been taken, that all provisions of Texas and federal law necessary for
the valid issuance of such Commercial Paper Notes with provision for interest exemption from
federal income taxation have been complied with, if applicable, and that such Commercial Paper
Notes in the hands of the Holders thereof will be valid and enforceable obligations of the City
according to their terms, subject to the exercise of judicial discretion in accordance with general
principles of equity and bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors' rights heretofore or hereafter enacted to the extent constitutionally
applicable and that, if applicable, based upon the advice of Bond Counsel, the interest on the
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Commercial Paper Notes is exempt from federal income taxation. The Issuance Request also
shall certify that:
(i) no Event of Default under Section 5.01 hereof has occurred and is
continuing as of the date of such Issuance Request;
(i i) the City has been advised by Bond Counsel that the projects to be financed
with the proceeds of the Commercial Paper Notes will constitute Projects or that the
obligations to be refunded were issued in connection with Projects;
(iii) the City is in compliance with the covenants set forth in Article IV hereof
as of the date of such Issuance Request; and
(iv) the City has been advised by Bond Counsel that the proposed expenditure
of the proceeds of such Commercial Paper Notes for such projects and refunding will not
cause the City to be in violation of its covenants set forth in Section 4.04 hereof.
For purposes of this Ordinance, such instructions described above shall constitute an Issuance
Request.
Section 3.02. Issuance Requests and Extension Notices. Upon receipt of an Issuance
Request, the Issuing and Paying Agent shall, by 3:00 p.m. on such day the Issuance Request is
received, complete each Commercial Paper Note as to amount, Note Date, Original Maturity
Date and Original Rate specified therein, and deliver each such Commercial Paper Note to or
upon the order of the Dealer upon receipt of payment therefor; provided, however, that no such
Commercial Paper Notes shall be delivered by the Issuing and Paying Agent if such delivery
would cause the sum of the aggregate principal amount of Commercial Paper Notes Outstanding
to exceed the limitation set forth in Section 4.01 of this Ordinance. If an Issuance Request is
received after 12:00 noon on a given day, the Issuing and Paying Agent shall not be obligated to
deliver the requested Commercial Paper Notes until the next succeeding Business Day.
Upon receipt of an Extension Notice, the Issuing and Paying Agent shall, by 3:00 p.m. on
such day the Extension Notice is received, complete each Commercial Paper Note as to amount,
Note Date and Extended Maturity Date specified therein, and deliver each such Commercial
Paper Note to or upon the order of the Dealer, as requested; provided, however, that no such
Commercial Paper Notes shall be delivered by the Issuing and Paying Agent if such delivery
would cause the sum of the aggregate principal amount of Commercial Paper Notes Outstanding
to exceed the limitation set forth in Section 4.01 of this Ordinance. If an Extension Notice is
received after 11:30 a.m. on a given day, the Issuing and Paying Agent shall not be obligated to
deliver the requested Commercial Paper Notes,until the next succeeding Business Day.
Section 3.03. Proceeds of Sale of Commercial Paper Notes. The proceeds of the sale of
any Commercial Paper Notes (net of all expenses and costs of sale and issuance) shall be applied
for any or all of the following purposes as directed by an Authorized Representative:
(i) Proceeds to be used for the payment of Outstanding Commercial Paper
Notes at or before maturity shall be retained in the Series ECP Note Payment Fund, and
expended therefor; and
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(ii) Proceeds not retained in the Series ECP Note Payment Fund as provided
in subparagraph (i) above shall be transferred and deposited to the Series ECP Note
Construction Account and used and applied in accordance with the provisions hereof.
Section 3.04. Issuing and Paying Agent Agreement. The Issuing and Paying Agent
Agreement by and between the City and the Issuing and Paying Agent, relating to the
Commercial Paper Notes, in substantially the form attached to this Ordinance as Exhibit D, is
hereby approved, and any Authorized Representative is hereby authorized and directed to
execute the same for and on behalf of the City and the City Secretary is authorized to attest and
place the City seal on such instrument. Any Authorized Representative is hereby authorized to
enter into any supplemental agreements with the Issuing and Paying Agent or with any successor
Issuing and Paying Agent in order to implement the functions of the Issuing and Paying Agent or
Registrar with respect to the Commercial Paper Notes.
Section 3.05. Dealer Agreement. The appointment of Loop Capital Markets LLC by the
City to serve as Dealer is hereby confirmed. The Dealer Agreement to be entered into with the
Dealer pertaining to the sale, from time to time, of Commercial Paper Notes or the purchase of
Commercial Paper Notes from the City, all for a fee to be set forth in the Dealer Agreement, in
substantially the form attached to this Ordinance as Exhibit E, is hereby approved, and any
Authorized Representative is hereby authorized and directed to execute the same for and on
behalf of the City and the City Secretary is authorized to attest and place the City seal on such
instrument.
Section 3.06. Record of Projects Financed with Commercial Paper Notes. The City
hereby covenants and agrees that immediately following the delivery of each Issuance Request to
the Issuing and Paying Agent, it will keep and maintain a proper and complete system of records
pertaining to the Projects being financed with the proceeds of the Commercial Paper Notes that
are the subject of each respective Issuance Request. Such records shall include the following
information: (i) the principal amount of Commercial Paper Notes being issued for each Project;
(ii) the Election proposition being utilized to finance each Project; (iii) the principal amount
being applied against each Election proposition; and (iv) the principal amount of voted authority
remaining for each Election proposition.
ARTICLE IV
COVENANTS OF THE CITY
Section 4.01. Limitation on Issuance. Unless this Ordinance is amended and modified by
the City Council in accordance with the provisions of Section 6.01 hereof, the Issuer covenants
that there will not be issued and Outstanding at any time more than the Authorized Amount of
Notes. The City, however, does reserve the right to increase said amount by an amendment to
this Ordinance duly adopted by the City Council, but in no event to an amount greater than the
amount of any remaining voted authorized but unissued ad valorem tax supported public
securities determined at the time of the adoption of such amendment. For purposes of this
Section any portion of Outstanding Notes to be paid on the day of calculation from moneys on
deposit in the Series ECP Note Payment Fund or the proceeds of Notes or Refunding Bonds or
any combination thereof shall nod be considered Outstanding.
Should the City determine that it is necessary or desirable to provide liquidity in support
of all or any of the Commercial Paper Notes, the City shall provide liquidity in an amount equal
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to the total principal amount of such Outstanding Commercial Paper Notes plus interest to accrue
thereon for the following two hundred and seventy (270) days. Any agreement to provide
liquidity or credit from external sources in support of the Commercial Paper Notes shall be
presented to the City Council for its approval.
Section 4.02. Punctual Payment. The City will punctually pay or cause to be paid the
principal of and interest, if any, on the Notes (but only from the sources pledged herein), in
conformity with the Notes and this Ordinance.
Section 4.03. Covenant to Refinance. The City covenants that it will undertake its best
efforts to issue and deliver Notes or Refunding Bonds at the times and in the amounts necessary
to refinance the Commercial Paper Notes that are maturing on the applicable Extended Maturity
Date and apply the proceeds of such Notes or Refunding Bonds to retire such Commercial Paper
Notes, either at maturity or redemption prior to maturity. Notwithstanding the foregoing, the
City, acting through its Authorized Representatives, shall not deliver an Issuance Request for
Commercial Paper Notes that could not be refinanced on or before the Maximum Maturity Date.
The receipts derived from the refinancing of the Commercial Paper Notes, whether by
other Commercial Paper Notes or Refunding Bonds, and all amounts in the funds and accounts
created or maintained pursuant to this Ordinance or the Issuing and Paying Agent Agreement,
including earnings on such amounts, are hereby pledged as security for the payment of the
Commercial Paper Notes and constitute trust funds held for that purpose, subject only to the
provisions of this Ordinance and the Issuing and Paying Agent Agreement permitting the
application thereof for the purposes and on the terms and conditions set forth herein and therein.
The pledge herein made shall be irrevocable until all of the Commercial Paper Notes to be
refinanced have been paid and retired.
Section 4.04. Commercial Paper Notes to Remain Tax-Exempt. In order to maintain the
exclusion from gross income of the interest on the Commercial Paper Notes for federal income
tax purposes, the Issuer will make all calculations required by section 148 of the Code, including,
but not limited to, the calculation of rebate, in a reasonable and prudent fashion and to segregate
and set aside the lawfully available amounts that such calculations indicate may be required to be
paid to the United States of America. The City will at all times do and perform all acts and things
within its power and authority necessary to comply with each applicable requirement of section
103 and sections 141 through 150 of the Code. The City will execute or cause to be executed a
Federal Tax Certificate as may be required by the Code, in the opinion of Bond Counsel, and the
Form 8038-G, or any other forms designated by the Internal Revenue Service in substitution
thereof. In furtherance of the foregoing, the Issuer will execute annually, or at any other time
necessary in the opinion of Bond Counsel, a Federal Tax Certificate and Form 8038-G necessary
to assure the tax-exempt status of the Commercial Paper Notes. In furtherance thereof, the City
covenants as follows:
(a) to take any action to assure that no more than ten (10) percent of the
proceeds of the Commercial Paper Notes or the projects financed therewith (less amounts
deposited to a reserve fund, if any) are used for any "private business use", as defined in
section 141(b)(6) of the Code or, if more than ten (10) percent of the proceeds are so
used, that amounts, whether or not received by the City, with respect to such private
business use, do not, under the terms of this Ordinance or any underlying arrangement,
directly or indirectly, secure or provide for the payment of more than ten (10) percent of
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the debt service on the Commercial Paper Notes, in contravention of section 141(b)(2) of
the Code;
(b) to take any action to assure that in the event that the "private business use"
described in subsection (a) hereof exceeds five (5) percent of the proceeds of the
Commercial Paper Notes or the projects financed therewith (less amounts deposited into
a reserve fund, if any) then the amount in excess of five (5) percent is used for a "private
business use" which is "related" and not "disproportionate", within the meaning of
section 141(b) (3) of the Code, to the governmental use;
(c) to take any action to assure that no amount which is greater than the lesser
of $5,000,000, or five (5) percent of the proceeds of the Commercial Paper Notes (less
amounts deposited into a reserve fund, if any) is directly or indirectly used to finance
loans to persons, other than state or local governmental units, in contravention of section
141(c) of the Code;
(d) to refrain from taking any action which would otherwise result in the
Commercial Paper Notes being treated as "private activity bonds" within the meaning of
section 141(b) of the Code;
(e) to refrain from taking any action that would result in the Commercial
Paper Notes being "federally guaranteed" within the meaning of section 149(b) of the
Code;
(f) to refrain from using any portion of the proceeds of the Commercial Paper
Notes, directly or indirectly, to acquire or to replace funds which were used, directly or
indirectly, to acquire "investment property" (as defined in section 148(b)(2) of the Code)
which produces a materially higher yield over the term of the Commercial Paper Notes,
other than investment property acquired with --
(1) proceeds of the Commercial Paper Notes invested for a reasonable
temporary period until such proceeds are needed for the purpose for which the
obligations are issued,
(2) amounts invested in a bona fide debt service fund, within the
meaning of section 1.148-1(b) of the Treasury Regulations, and
(3) amounts deposited in any reasonably required reserve or
replacement fund to the extent such amounts do not exceed ten (10) percent of the
proceeds of the Commercial Paper Notes;
(g) to otherwise restrict the use of the proceeds of the Commercial Paper
Notes or amounts treated as proceeds of the Commercial Paper Notes, as may be
necessary, so that the Commercial Paper Notes do not otherwise contravene the
requirements of section 148 of the Code (relating to arbitrage) and, to the extent
applicable, section 149(d) of the Code (relating to advance refundings); and
(h) to pay to the United States of America at least once during each five-year
period (beginning on the date of delivery of the Commercial Paper Notes) an amount that
is at least equal to ninety (90) percent of the "Excess Earnings", within the meaning of
21
section 148(f) of the Code, and to pay to the United States of America, not later than
sixty (60) days after the Commercial Paper Notes have been paid in full, one hundred
(100) percent of the amount then required to be paid as a result of Excess Earnings under
section 148(f) of the Code.
The City shall not expend, or permit to be expended, the proceeds of the Commercial
Paper Notes in any manner inconsistent with its reasonable expectations as certified in the
Federal Tax Certificates to be executed from time to time with respect to the Commercial Paper
Notes; provided, however, that the City may expend proceeds of the Commercial Paper Notes in
any manner if the City first obtains an unqualified opinion of nationally-recognized bond counsel
that such expenditure will not impair the exemption from federal income taxation of interest paid
on the Commercial Paper Notes. The City hereby elects to treat those Commercial Paper Notes
redeemed during each eighteen-month period as one "issue" in accordance with the provisions of
section 148(f)(3) of the Code, unless otherwise provided in the Federal Tax Certificate.
The City understands that the term "proceeds" includes "disposition proceeds" as defined
in the Treasury Regulations and, in the case of a refunding bond, transferred proceeds (if any)
and proceeds of the refunded bonds expended prior to the date of the issuance of the Commercial
Paper Notes. 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
Commercial Paper Notes, 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 Bond Counsel, will not
adversely affect the exemption from federal income taxation of interest on the Commercial Paper
Notes 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 Commercial
Paper Notes, the City agrees to comply with the additional requirements to the extent necessary,
in the opinion of Bond Counsel, to preserve the exemption from federal income taxation of
interest on the Commercial Paper Notes under section 103 of the Code. In furtherance of such
intention, the City Council hereby authorizes and directs, jointly and severally, the Mayor, the
City Manager, any Assistant City Manager and the Chief Financial Officer/Director of Financial
Management Services of the City to execute any documents, certificates or reports required by
the Code, and to make such elections on behalf of the City which may be permitted by the Code
as are consistent with the purpose for the issuance of the Commercial Paper Notes.
In order to facilitate compliance with the above clause (h), upon the issuance of
Commercial Paper Notes, a"Rebate Fund" may be established by the City for the sole benefit of
the United States of America, and such Fund shall not be subject to the claim of any other
person, including without limitation the Noteholders. The Rebate Fund is established for the
additional purpose of compliance with section 148 of the Code.
Section 4.05 Allocation of, and Limitation on, Expenditures for Projects. The City
covenants to account for on its books and records the expenditure of proceeds from the sale of
the Commercial Paper Notes and any investment earnings thereon to be used for Projects by
allocating proceeds to expenditures within eighteen (18) months of the later of the date that (a)
the expenditure on a Project is made or (b) each Project is completed. The foregoing
notwithstanding, the City shall not expend such proceeds or investment earnings more than sixty
(60) days after the later of (a) the fifth anniversary of the date of delivery of the Commercial
Paper Notes or (b) the date the Commercial Paper Notes are retired, unless the City obtains an
22
opinion of nationally-recognized bond counsel substantially to the effect that such expenditure
will not adversely affect the tax-exempt status of the Commercial Paper Notes.
Section 4.06. Disposition of Projects. The City covenants that the property constituting a
Project 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 substantially to the effect that such sale or other disposition will not adversely affect the
tax-exempt status of the Commercial Paper Notes. For purposes of this Section, the portion of
the property comprising personal property and disposed of in the ordinary course of business
shall not be treated as a transaction resulting in the receipt of cash or other compensation.
Section 4.07 Written Procedures. Until superseded by another action of the City, the
written procedures to ensure compliance with the covenants contained herein regarding private
business use, remedial actions, arbitrage and rebate approved by the City on August 24, 2021,
apply to the issuance of the Commercial Paper Notes issued as obligations described in section
103(a) of the Code, and are incorporated by reference into this Ordinance.
Section 4.08. [Reserved].
Section 4.09. Opinion of Bond Counsel. The City shall cause the legal opinion of Bond
Counsel as to the validity of the Commercial Paper Notes and as to the exemption of interest on
the
Commercial Paper Notes from federal income taxation to be furnished to any Holder without
cost. In addition, a copy of said opinion may be printed on each of the Commercial Paper Notes.
In addition, in connection with the annual updating of the Offering Memorandum (as provided in
accordance with Section 6.08 hereof) as required by the Dealer Agreement, there may be
provided an annual updated opinion of Bond Counsel, at the cost of the City.
Section 4.10. Continuing Disclosure Oblijzation. To the extent required by the
provisions of the Rule, the City agrees to enter into an agreement to file financial information
and operating data with respect to the Commercial Paper Notes with EMMA. The City agrees to
provide the Dealer a link to the City's consolidated audited financial report posted on the City's
website promptly after each fiscal year's consolidated audited financial report is accepted by the
City Council.
Section 4.11. Notice to Rating? Agencies. The City shall cause to be provided to any
Rating Agency notice of any proposed amendment to this Ordinance, with such notice to be
provided in the manner set forth in the Issuing and Paying Agent Agreement.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES OF NOTEHOLDERS
Section 5.01. Events of Default. If one or more of the following events shall occur:
(a) if default shall be made in the due and punctual payment of any
installment of principal of any Commercial Paper Note when and as the same shall
become due and payable, whether at maturity as therein expressed, by declaration or
otherwise;
23
(b) if the City shall fail to make due and punctual payment of any installment
of interest on any Commercial Paper Note when and as such interest installment shall
become due and payable;
(c) if default shall be made by the City in the performance or observance of
any other of the covenants, agreements or conditions on its part in this Ordinance or in
the Commercial Paper Notes contained, and such default shall continue for a period of
sixty (60) days after written notice thereof; provided, however, if such default cannot be
cured within the sixty (60) day period but corrective action to cure such default is
commenced and diligently pursued until the default is corrected no such Event of Default
shall be deemed to have occurred; or
(d) if there shall occur the dissolution (without a successor being named to
assume the rights and obligations) or liquidation of the City or the filing by the City of a
voluntary petition in bankruptcy, or adjudication of the City as a bankrupt, or assignment
by the City for the benefit of its creditors, or the entry by the City into an agreement of
composition with its creditors, or the approval by a court of competent jurisdiction of a
petition applicable to the City in any proceeding for the adjustment of its debts instituted
under the provisions of the Bankruptcy Code, as amended, or under any similar act in any
jurisdiction which may now be in effect or hereafter enacted;
then such event as described above shall constitute an "Event of Default" under this Ordinance.
Section 5.02. Suits at Law or in Equity and Mandamus. In case one or more Events of
Default shall occur, then and in every such case the Holder of any Note at the time Outstanding
shall be entitled to proceed to protect and enforce such Holder's rights by such appropriate
judicial proceeding as such Holder shall deem most effectual to protect and enforce any such
right, either by suit in equity or by action at law, whether for the specific performance of any
covenant or agreement contained in this Ordinance, or in aid of the exercise of any power
granted in this Ordinance, or to enforce any other legal or equitable right vested in the Holders of
Notes by this Ordinance or the Notes or by law. The provisions of this Ordinance shall be a
contract with each and every Holder of Notes and the duties of the City shall be enforceable by
any Noteholder by mandamus or other appropriate suit, action or proceeding in any court of
competent jurisdiction.
Section 5.03. Remedies Not Exclusive. No remedy herein conferred upon or reserved to
the Holders of Notes is intended to be exclusive of any other remedy, and every such remedy
shall be cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing, at law or in equity or by statute or otherwise, and may be exercised at any time
or from time to time, and as often as may be necessary, by the Holder of any one or more of the
Notes.
Section 5.04. No Personal Liability. None of the members of the City Council, nor any
Authorized Representative, nor any other official or officer, agent, or employee of the City, shall
be charged personally by the Holders with any liability, or be held personally liable to the
Holders under any term or provision of this Ordinance, or because of any Event of Default or
alleged Event of Default under this Ordinance.
24
ARTICLE VI
MISCELLANEOliS
Section 6.01. Amendments or Modifications without Consent of Holders of Notes. This
Ordinance and the rights and obligations of the City and of the Holders of Notes may be
modified or amended at any time by a supplemental ordinance, without notice to or the consent
of any Noteholders, but only to the extent permitted by law, and, subject to the rights of the
holders of the Notes, only for any one or more of the following purposes --
(1) to add to the covenants and agreements of the City in this Ordinance
contained, other covenants and agreements thereafter to be observed, or to surrender any
right or power herein reserved to or conferred upon the City;
(2) to cure any ambiguity or inconsistency, or to cure or correct any defective
provision contained in this Ordinance, upon receipt by the City of an approving opinion
of Bond Counsel selected by the City, that the same is needed for such purpose, and will
more clearly express the intent of this Ordinance; or
(3) to supplement the security for the Notes, replace or provide additional
credit facilities, make such changes, modifications or amendments as may be necessary
or desirable in order to obtain the approval of this Ordinance by the Attorney General of
the State of Texas, as required by Section 6.09 hereof, or to obtain or maintain the
granting of a rating on the Notes by a nationally recognized municipal bond rating
agency, or change the form of the Notes, or make such other changes in the provisions
hereof as the City may deem necessary or desirable and which shall not materially
adversely affect the interests of the Holders of the Notes;
provided, however, that nothing herein contained shall permit or be construed to permit the
amendment of the terms and conditions of this Ordinance or of the Commercial Paper Notes so
as to:
(1) Make any change in the Original Maturity Date or Extended Maturity
Date of any of the Outstanding Commercial Paper Notes;
(2) Reduce the rate of interest borne by any of the Outstanding Commercial
Paper Notes;
(3) Reduce the amount of the principal payable on any of the Outstanding
Commercial Paper Notes;
(4) Modify the terms of payment of principal of or interest on the Outstanding
Commercial Paper Notes, or impose any conditions with respect to such payment;
(5) Affect the rights of the Holders of less than all of the Outstanding
Commercial Paper Notes; or
25
(6) Reduce or restrict the pledge made for the payment of the Commercial
Paper Notes;
and provided, further, that no change, modification or amendment shall be made in this
Ordinance or become valid and effective without the approval of such change, modification or
amendment
by the Attorney General of the State of Texas, to the extent required by the Act.
Section 6.02. Additional Actions. Any Authorized Representative, the City Secretary,
and the other officers of the City, each are hereby authorized and directed,jointly and severally,
to do any and all things and to execute and deliver any and all documents which they may deem
necessary or advisable in order to consummate the issuance, sale and delivery of the Notes and
otherwise to effectuate the purposes of this Ordinance, the Issuing and Paying Agent Agreement,
the Dealer Agreement and the Offering Memorandum. Specifically, by the adoption of this
Ordinance, the City Council hereby authorizes the payment of the fees and expenses incurred
and to be paid by the City in connection with the issuance, sale and delivery of the Notes and the
execution and delivery of the Dealer Agreement and the Issuing and Paying Agent Agreement
including, without limitation, the fee of the Attorney General of the State of Texas payable in
respect to the review of the proceedings authorizing the issuance of the Commercial Paper Notes
required under Section 1202.004, Texas Government Code. By adoption of this Ordinance, each
Authorized Representative is designated as a special Acting Assistant City Manager for the
limited purposes of executing certificates, agreements, notices, instruction letters, requisitions,
and other documents on behalf of the City in accordance with this Ordinance.
Section 6.03. Ordinance to Constitute a Contract; Equal Security. In consideration of
the acceptance of the Notes, the issuance of which is authorized hereunder, by those who shall
hold the same from time to time, this Ordinance shall be deemed to be and shall constitute a
contract between the City and the Holders from time to time of the Notes and the pledge made in
this Ordinance by the City and the covenants and agreements set forth in this Ordinance to be
performed by the City shall be for the equal and proportionate benefit, security and protection of
all Holders of the Notes, without preference, priority or distinction as to security or otherwise of
any of the Notes authorized hereunder over any of the others by reason of time of issuance, sale
or maturity thereof or otherwise for any cause whatsoever, except as expressly provided in or
permitted by this Ordinance.
Section 6.04. Severability of Invalid Provisions. If any one or more of the covenants,
agreements or provisions herein contained shall be held contrary to any express provisions of law
or contrary to the policy of express law, though not expressly prohibited, or against public
policy, or shall for any reason whatsoever be held invalid, then such covenants, agreements or
provisions shall be null and void and shall be deemed separable from the remaining covenants,
agreements or provisions and shall in no way affect the validity of any of the other provisions
hereof or of the Notes issued hereunder.
Section 6.05. Payment and Performance on Business Day,. Whenever under the terms
of this Ordinance or the Commercial Paper Notes, the performance date of any provision hereof
or thereof, including the payment of principal of or interest on the Commercial Paper Notes,
shall occur on a day other than a Business Day, then the performance thereof, including the
payment of principal of and interest on the Commercial Paper Notes, need not be made on such
26
day but may be performed or paid, as the case may be, on the next succeeding Business Day with
the same force and effect as if made on the date of performance or payment.
Section 6.06. Defeasance. If, when all or any portion of the Commercial Paper Notes
shall have become due and payable in accordance with their terms or otherwise as provided in
this Ordinance, the entire principal and interest so due and payable upon said Commercial Paper
Notes
shall be paid, or if at or prior to the date said Commercial Paper Notes have become due and
payable, sufficient moneys or obligations described in Chapter 1207, Texas Government Code,
shall be held in trust by the Issuing and Paying Agent and provision shall also be made for
paying all other sums payable hereunder by the City with respect to said Commercial Paper
Notes, the pledge herein created with respect to said Commercial Paper Notes shall thereupon
cease, terminate and become discharged and said Commercial Paper Notes shall no longer be
deemed outstanding for purposes of this Ordinance and all the provisions of this Ordinance
relating to the Commercial Paper Notes, including all covenants, agreements, liens and pledges
made herein for the benefit thereof, shall be deemed duly discharged, satisfied and released.
Section 6.07. Limitation of Benefits with Respect to the Ordinance. With the exception
of the rights or benefits herein expressly conferred, nothing expressed or contained herein or
implied from the provisions of this Ordinance or the Notes is intended or should be construed to
confer upon or give to any person other than the City, the Holders of the Notes, the Issuing and
Paying Agent and the Dealer, any legal or equitable right, remedy or claim under or by reason of
or in respect to this Ordinance or any covenant, condition, stipulation, promise, agreement or
provision herein contained. This Ordinance and all of the covenants, conditions, stipulations,
promises, agreements and provisions hereof are intended to be and shall be for and inure to the
sole and exclusive benefit of the City, the Holders of the Notes, the Issuing and Paying Agent
and the Dealer as herein provided.
Section 6.08. Use of Offering Memorandum. The use by the Dealer of the Offering
Memorandum, prepared by the City in connection with the sale of Commercial Paper Notes, and
the distribution of the Offering Memorandum by the Dealer, is approved subject to the approval
thereof by an Authorized Representative. Any Authorized Representative is hereby authorized
to approve the use by the Dealer of any updated or new Offering Memorandum, which shall
occur no less frequently than on each anniversary of the initial date of the Offering
Memorandum.
Section 6.09. Approval of Attorney General. An Authorized Representative shall submit
this Ordinance and a transcript of proceedings related thereto to the Attorney General of the State
of Texas for approval, as required by the Act. No Notes herein authorized to be issued shall be
sold or delivered by the City until the Attorney General of the State of Texas shall have approved
this Ordinance and other agreements and proceedings as may be required in connection
therewith, all as required by the Act. The City Council authorizes the payment of the fee of the
Attorney General of the State of Texas for the examination of the proceedings relating to the
Commercial Paper Notes, in the amount determined in accordance with the provisions of
Section 1202.004, Texas Government Code.
Section 6.10. Section 2252.908, Government Code. The City shall not execute the
Dealer Agreement or the Issuing and Paying Agent Agreement unless the Dealer and the Issuing
and Paying Agent, respectively, has confirmed to an Authorized Representative that either it (i)
has made disclosure filings to the Texas Ethics Commission in accordance with Section
27
2252.908, Texas Government Code or (ii) is exempt from making filings under Section
2252.908(c)(4), Texas Government Code. If clause (i) of this Section 6.10 applies to any party,
within 30 days of receipt of any such disclosure filing the filing will be acknowledged by the
City in accordance with the rules of the Texas Ethics Commission.
Section 6.11. Preamble. The preamble to this Ordinance shall be considered an integral
part of this Ordinance and is herein incorporated as part of the body of this Ordinance for all
purposes.
Section 6.12. Immediate Effect. This Ordinance shall be effective immediately from and
after its passage in accordance with the provisions of Section 1201.028, Texas Government
Code.
Section 6.13. Open Meeting. It is hereby officially found and determined that the
meeting at which this Ordinance was passed was open to the public, and public notice of the
time, place and purpose of said meeting was given, all as required by Chapter 551, Texas
Government Code, as amended.
[Execution Page Follows]
28
ADOPTED AND EFFECTIVE August 23, 2022.
- iaacu) 1� - —=-1
Mayor,City of Fort Worth, Texas
ATTEST:
(SEAL)
�ArSecretary, City of Fort Worth, Texas
of FoR.
APPROVED AS TO FORM AND LEGALITY:1,141A IA'
AS
ifty'aAfforney, City-ofWbrt Worth
Signature Page for Ordinance Authorizing Commercial Paper Notes,Series ECP
29
THE STATE OF TEXAS
COUNTIES OF TARRANT, DENTON, WISE, PARKER AND JOHNSON
CITY OF FORT WORTH
I, Jannette S. Goodall, City Secretary of the City of Fort Worth, in the State of Texas, do
hereby certify that I have compared the attached and foregoing excerpt from the minutes of the
regular, open, public meeting of the City Council of the City of Fort Worth, Texas held on
August 23, 2022, and of the ordinance authorizing the issuance of General Purpose Commercial
Paper Notes, Series ECP, which was duly passed at said meeting, and that said copy is a true and
correct copy of said excerpt and the whole of said ordinance. Said meeting was open to the
public, and public notice of the time, place, and purpose of said meeting was given, all as
required by Chapter 551, Texas Government Code, as amended.
In testimony whereof, I have set my hand and have hereunto affixed the seal of said City
of Fort Worth,this 23`d day of August 2022.
ry of the
Worth, Texas
(SEAL)
i
EXHIBIT A
Form of Commercial Paper Note:
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF FORT WORTH, TEXAS
GENERAL PURPOSE COMMERCIAL PAPER NOTE,
SERIES ECP
Note Interest Note
Number Rate Date $
On (the "Original Maturity Date")for value received, THE CITY
OF FORT WORTH, TEXAS (the "City")
Promises To Pay To The Order of
The Principal Sum Of
Payable At
(the "Issuing and Paying Agent"),
and to pay interest, if any, on said principal amount, specified above, from the above specified
Note Date on said Original Maturity Date at the per annum Interest Rate specified above
(computed on the basis of actual days elapsed and a 365-day or 366-day year, as applicable)
solely from the sources hereinafter identified and as hereinafter stated.
This Note is one of an issue of commercial paper notes (the "Commercial Paper Notes")
which has been duly authorized and issued in accordance with the provisions of an ordinance
(the "Ordinance") passed by the City Council of the City for the purpose of financing Project
Costs of Projects; to refund obligations issued in connection with a Project; and to refinance,
renew or refund Notes and Refunding Bonds, including interest thereon, in accordance with the
provisions of the Ordinance; all in accordance and in strict conformity with the provisions of
Chapters I331 and 1371, Texas Government Code, as amended (collectively, the "Act").
Defined terms used in this Commercial Paper Note shall have the meanings given said terms in
the Ordinance.
Both principal of and interest on this Commercial Paper Note shall be payable in
immediately available lawful money of the United States of America at the designated corporate
office of the Issuing and Paying Agent, specified above, or its successor.
If the Original Maturity Date shall have been extended to the Extended Maturity Date, as
provided in the Ordinance, the interest accrued on this Commercial Paper Note to the Original
Maturity Date will be paid on the Original Maturity Date. The principal amount of this
Commercial Paper Note will be payable on the Extended Maturity Date, and after the Original
Maturity Date, this Commercial Paper Note shall bear interest from the Original Maturity Date to
the Extended Maturity Date, at the per annum Extended Rate described below (computed on the
basis of actual days elapsed and a 365-day or 366-day year, as applicable) solely from the
sources hereinafter identified and as hereinafter stated.
The payment of the principal of and interest on this Note is and shall be secured by and
payable from the following, subject to the provisions of the Ordinance permitting the application
thereof for the purposes and on the terms and conditions set forth therein: (i)the proceeds from
the sale of Notes to refinance the principal amount of maturing Notes, (ii) the proceeds of
Refunding Bonds to be issued by the Issuer to pay the principal of and interest on Notes, (iii) the
proceeds of the tax levy set forth in Section 2.10 of the Ordinance, and (iv) any funds held and
available for such purposes in funds and accounts created or maintained under the Ordinance or
the Issuing and Paying Agent Agreement (except the Rebate Fund). This Note is not secured by
or payable from a mortgage or deed of trust on any properties, whether real, personal, or mixed,
nor from any source other than as specified in the Ordinance.
No interest will accrue on the principal amount hereof after said Original Maturity Date
or, if the Original Maturity Date shall have been extended to the Extended Maturity Date, after
said Extended Maturity Date, or the date fixed for redemption of this Commercial Paper Note.
If the Original Maturity Date is before the 15th day of the month, and the City exercises
its option in accordance with the Ordinance to extend the Original Maturity Date of this
Commercial Paper Note to an Extended Maturity Date, interest accruing after the Original
Maturity Date shall be payable on the first Business Day of the next month and on the first
Business Day of each month thereafter and on the Extended Maturity Date for, or the date fixed
for redemption of, this Commercial Paper Note. If the Original Maturity Date is on or after the
15th day of the month, and the City exercises its option in accordance with the Ordinance to
extend the Original Maturity Date of this Commercial Paper Note to an Extended Maturity Date,
interest accruing after the Original Maturity Date shall be payable on the first Business Day of
the second succeeding month and on the first Business Day of each month thereafter and on the
Extended Maturity Date for, or the date fixed for redemption of, this Commercial Paper Note.
The Extended Rate shall be the rate of interest per annum determined by the following
formula:
The greater of(SIFMA Index+ E) or F
The Extended Rate applicable to this Commercial Paper Note will be determined weekly
by the Issuing and Paying Agent based on the Prevailing Ratings and other information available
as of 1 1:00 a.m., New York, New York time, on the Original Maturity Date of this Commercial
Paper Note and each Thursday thereafter and will apply from that date through the following
Wednesday or, if earlier,the applicable Extended Maturity Date, or the date fixed for redemption
of this Commercial Paper Note. As used in the formula, the E and F variables shall be the fixed
percentage rates, expressed in basis points and yields, respectively, determined based on the
Prevailing Ratings of the Rating Agencies then rating the Commercial Paper Notes at the request
of the City, as follows:
Prevailing Rating
S&P E Variable F Variable
A-1+ 250 bps 7.00%
A-1 350 bps 7.50%
A-2 550 bps 8.00%
Lower than A-2 Max Rate Max Rate
(or rating
withdrawn for
credit reasons)
If the City obtains another rating on the Commercial Paper Notes from a credit rating agency, the
Issuing and Paying Agent shall, upon written direction of the Authorized Representative,
following consultation with the Authorized Representative and the Dealer, determine how the
credit rating agency's rating categories shall be treated for the purpose of indicating an E or F
variable. In no event shall the Extended Rate exceed the Maximum Interest Rate.
It is hereby certified and recited that all acts, conditions, and things required by law and
the Ordinance to exist, to have happened, and to have been performed precedent to and in the
issuance of this Commercial Paper Note, do exist, have happened, and have been performed in
regular and in due time, form, and manner as required by law; that the issuance of this
Commercial Paper Note, together with all other Outstanding Commercial Paper Notes, is not in
excess of the Authorized Amount permitted to be issued under the Ordinance; that sufficient and
proper provision for the levy and collection of taxes has been made,which, when collected, shall
be appropriated exclusively to the payment of the principal and interest on this Commercial
Paper Note, together with the other Commercial Paper Notes; and that the total indebtedness of
the City does not exceed any constitutional, statutory or charter limitation.
This Commercial Paper Note has all the qualities and incidents of a negotiable instrument
under the laws of the State of Texas.
This Commercial Paper Note may be registered to bearer or to any designated payee.
Title to any Commercial Paper Note registered to bearer shall pass by delivery. If not registered
to bearer, this Commercial Paper Note may be transferred only on the books of the Issuing and
Paying Agent. Upon surrender hereof at the designated office of the Issuing and Paying Agent,
this Commercial Paper Note may be exchanged for a like aggregate principal amount of fully
registered (which registration may be to bearer) Commercial Paper Notes of authorized
denominations of like interest rate and maturity, and in the same form as this Commercial Paper
Note, but only in the manner, and subject to the limitations, and upon payment of the charges
provided in the Ordinance and upon surrender and cancellation of this Commercial Paper Note.
This Commercial Paper Note shall not be entitled to any benefit under the Ordinance or
be valid or become obligatory for any purpose until this Commercial Paper Note shall have been
authenticated by the execution by the Issuing and Paying Agent of the Certificate of
Authentication hereon.
IN TESTIMONY WHEREOF, the City Council has caused the seal of the City to be duly
impressed or placed in facsimile hereon, and this Note to be signed with the imprinted facsimile
signature of the Mayor, attested by the facsimile signature of the City Secretary and approved as
to form by the facsimile signature of the City Attorney.
xxxxxxxx xxxxxxxx
City Secretary, Mayor,
City of Fort Worth City of Fort Worth
APPROVED AS TO FORM:
xxxxxxx (SEAL)
City Attorney, City of Fort Worth
ISSUING AND PAYING AGENT'S
CERTIFICATE OF AUTHENTICATION
This Commercial Paper Note is one of the Commercial Paper Notes delivered pursuant to
the within mentioned Ordinance.
as Issuing and Paying Agent
By:
Authorized Signatory
EXHIBIT B
FORM OF MASTER NOTE
A-1
The Depository Trust Company
A subsidiary of The Depository Trust&Clearing Corporation
MUNICIPALi —TECP MASTER NOTE
(Date of Issuance)
City of Fort Worth, Texas ("Issuer"), for value received, hereby promises to pay to Cede & Co., as
nominee of the Depository Trust Company, or to registered assigns (i) the principal amount,
together with unpaid accrued interest thereon, if any, on the maturity date of each obligation
identified on the records of Issuer (the "Underlying Records") as being evidenced by this Master
Note, which Underlying Records are maintained by U.S. Bank Trust Company National Association
("Paying Agent"); (ii) interest on the principal amount of each such obligation that is payable
in installments, if any, on the due date of each installment, as specified on the Underlying Records; and
(iii) the principal amount of each such obligation that is payable in installments, if any, on the due date of
each installment, as specified on the Underlying Records. Interest shall be calculated at the rate and
according to the calculation convention specified on the Underlying Records. Payments shall be made
soley from the sources stated on the Underlying Records by wire transfer to the registered owner from
Paying Agent without the necessity of presentation and surrender of this Master Note.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS MASTER NOTE
SET FORTH ON THE REVERSE HEREOF.
This Master Note is a valid and binding obligation of Issuer.
Not Valid Unless Countersigned for Authentication by Paying Agent.
U.S. Bank Trust Company National Association City of Fort Worth, Texas
(Paying Agent) (Issuer)
By: BY:
f
(Authorized Countersignature) (Authorized Signature)
13TCC
Note:
Schedule A contains statements that DTC believes
accurately describe DTC, the method of effecting
book-entry transfers of securities distributed
through DTC,and certain related matters.
Very truly yours,
City of Fort Worth, Texas
[Issu r]
By: 611 l
[Authorized Officer's Signature]
[Guarantor]
By:
[Authorized Officer's Signature]
U.S. Bank Trust Company National Association
[Issuing Agent]
By:
[Authorized Officer's Signature]
U.S. Bank Trust Company National Association
[Paying Agent]
By:
cc: Underwriter
Underwriter's Counsel
-5-
MP 21807-06/2013
EXHIBIT C
FORM OF EXTENSION NOTICE
Date
[Name and Address of Issuing and Paying Agent]
[Name and Address of Dealer]
EXTENSION NOTICE
Ladies and Gentlemen:
This notice is provided pursuant to the requirements of Section 2.04(a) of the Ordinance (the
"Ordinance") adopted by the City Council of the City of Fort Worth, Texas, with respect to the issuance
of the City of Fort Worth, Texas General Purpose Commercial Paper Notes, Series ECP, for the purpose
of extending the term of a Commercial Paper Note, as provided herein. Capitalized terms used herein and
not otherwise defined shall have the meaning given in the Ordinance.
(a) The Commercial Paper Note is in the principal amount of$ , bears interest at
the Original Interest Rate of %, and has a stated Original Maturity Date of
, 20 .
(b) The Extended Maturity Date of the Commercial Paper Note shall be 20_,
which is a Business Day.
(c) The certifications made in the Issuance Request delivered in connection with the initial
issuance of the Commercial Paper Note are confirmed.
(d) The term of the Commercial Paper Note, as extended to the Extended Maturity Date,
does not exceed 270 days or extend past the Maximum Maturity Date.
Dated:
CITY OF FORT WORTH, TEXAS
By
Authorized Representative
B-1
EXHIBIT D
FORM OF ISSUING AND PAYING AGENT AGREEMENT
C-1
ISSUING AND PAYING AGENT AGREEMENT
THIS ISSUING AND PAYING AGENT AGREEMENT (the "Agreement") is dated
as of September 1, 2022, by and between U.S. Bank Trust Company, National Association (the
"Bank") with offices at 100 Wall Street, Suite 1600,New York,New York 10005 and the City of
Fort Worth, Texas, a Texas home-rule municipality with offices at 200 Texas Street, Fort Worth,
Texas 76102 (the "City") regarding the City's commercial paper program (hereinafter referred to
as the "Program").
WITNESSETH:
WHEREAS, at the request of City, Bank is prepared to act (a) as depositary for the
safekeeping of certain notes of City, to-wit, its City of Fort Worth, Texas General Purpose
Commercial Paper Notes, Series ECP, which may be issued and sold in the United States
commercial paper market under the Program (the "Commercial Paper Notes"; such Commercial
Paper Notes when issued in book-entry form being hereinafter referred to as "Book-Entry
Commercial Paper Notes" and when issued in the form of certificated promissory notes being
hereinafter referred to as "Certificated Commercial Paper Notes"), (b) as issuing agent on behalf
of City in connection with the issuance of the Commercial Paper Notes, (c) as paying agent to
undertake certain obligations to make payments in respect of the Commercial Paper Notes, and
(d) as depositary to receive certain funds on behalf of City, as set forth herein, and
WHEREAS, this Agreement will govern Bank's rights, powers and duties as such
depositary, issuing agent and paying agent for the Commercial Paper Notes and City's rights and
obligations in connection therewith.
NOW THEREFORE, for good and valuable consideration, the parties hereto agree as
follows:
1. Appointment of Bank. City hereby appoints Bank and Bank hereby agrees to
act, on the terms and conditions specified herein, as depositary with respect to unissued
Certificated Commercial Paper Notes (as hereinafter defined) and to funds received by Bank
pursuant to Sections 6 and 7 hereof (the "Note Funds"), and issuing and paying agent for the
Commercial Paper Notes issued under the Program. The Commercial Paper Notes will be sold
through such commercial paper dealers and/or placement agents as City shall have notified Bank
in writing from time to time (collectively, the "Dealers"). City has engaged Loop Capital
Markets LLC to serve as the initial Dealer.
2. Letter of Representations. City will promptly deliver to Bank an executed
version of the form of Letter of Representations (the "Letter of Representations")provided by the
Depository Trust Company ("DTC"). City understands and agrees that such Letter of
Representations when executed by City and Bank and accepted by DTC shall supplement the
provisions of this Agreement and that City, Bank, and DTC shall be bound by the terms and
provisions of the Letter of Representations, including any procedures and operational
arrangements applicable thereunder.
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3. Commercial Paper Notes.
(a) Book-Entry Commercial Paper Notes shall be represented by one or more master
notes ("Master Note" or "Master Notes") which shall be executed by manual or facsimile
signature by an Authorized Representative (as hereafter defined). Bank will hold the Master
Note(s) in safekeeping for the account of DTC, in accordance with Bank's customary practice.
(b) If Certificated Commercial Paper Notes are to be issued, they shall be in the form
provided by City, shall be serially numbered and shall have been executed in the manner
provided in the Ordinance (as hereinafter defined), but shall otherwise be uncompleted. City will
from time to time furnish Bank with an adequate supply of Certificated Commercial Paper
Notes, as City, in accordance with the provisions of the Ordinance, in its sole and absolute
discretion, considers appropriate.
(c) Each Certificated Commercial Paper Note or Master Note, as the case may be,
delivered to Bank shall be accompanied by a letter from City identifying the Certificated
Commercial Paper Note(s) or Master Note(s) transmitted therewith, and Bank shall acknowledge
receipt of such certificated Commercial Paper Note(s) or Master Note(s) on the copy of such
letter or pursuant to some other form of written receipt deemed appropriate by it at the time of
delivery to it of such Certificated Commercial Paper Note(s) or Master Note(s). Pending the
issuance of Certificated Commercial Paper Notes as provided in Section 5 hereof, all Certificated
Commercial Paper Notes delivered to Bank shall be held by Bank for the account of City, for
safekeeping in accordance with Bank's customary practice.
4. Authorized Representatives. Annually or more frequently, if requested in
writing by Bank, to reflect changes thereto, City will furnish to Bank certificates in the form of
Exhibit A ("Incumbency Certificates") of a City officer certifying the incumbency and specimen
signatures of officers or agents of City authorized to execute Commercial Paper Notes on behalf
of City by manual or facsimile signature and/or to take other action hereunder on behalf of City
(each an "Authorized Representative"). Until Bank receives and has a reasonable time to act
upon a subsequent Incumbency Certificate of City, Bank is entitled to rely on the last such
Incumbency Certificate delivered to Bank for purposes of determining the Authorized
Representatives. Bank shall not have any responsibility to City to determine by whom or by what
means a facsimile signature may have been affixed on the Commercial Paper Notes, or to
determine whether any facsimile or manual signature resembles the specimen signature(s) filed
with Bank by a duly authorized officer of City. Any Commercial Paper Notes bearing the
manual or facsimile signature of a person who is an Authorized Representative on the date such
signature is affixed shall be binding on City after the authentication thereof by Bank
notwithstanding that such person shall have died or shall have otherwise ceased to hold his or her
office on the date such Commercial Paper Note is countersigned or delivered to Bank. City
represents and warrants it may appoint other officers, employees and agents of City (an
"Authorized Person") including without limitation any Dealers, to give notices and /or issuance
instructions to Bank under this Agreement, provided that notice of the appointment of each
Authorized Person is delivered to Bank in writing. Each such appointment shall remain in effect
unless and until revoked by City in a written notice to Bank.
5. Issuance of Commercial Paper Notes.
(a) Issuance Requests shall be in the form attached hereto as Exhibit B. Issuance
2
4
Y
Requests may be delivered by an Authorized Representative through an electronic instruction
and reporting communication service offered by either the Dealer or Bank pursuant to Section
10 hereof, in each case received by Bank at the address specified in Section 19 hereof prior to
2:00 p.m. on the day on which such Issuance Request is to be operative.
If Bank, at its option, acts upon an Issuance Request received after 2:00 p.m. on the day
on which the Issuance Request is to be operative, City understands and agrees that (a) such
Issuance Request shall be acted upon on a best efforts basis, and (b) Bank makes no
representation or warranty that the issuance and delivery of any Commercial Paper Note
pursuant to such Issuance Request shall be completed prior to the close of business on such
date.
Any Issuance Request given by telephone shall be confirmed to Bank in writing, either
by regular mail (upon receipt), electronic transmission or facsimile, by an Authorized
Representative prior to 2:00 p.m. in the form of Exhibit B hereto on the day on which such
Issuance Request is to be operative.
(b) Bank's duties and responsibilities in connection with the issuance of the
Commercial Paper Notes shall include:
a. holding the Master Commercial Paper Notes in safekeeping and
completing or causing to be completed, each Master Commercial Paper Note as to
amount, date, maturity date, interest rate and interest amount upon receipt of Issuance
Requests in accordance with the Ordinance;
b. (1) verifying that the aggregate principal amount of Commercial Paper
Notes described in each Issuance Request (together with the interest thereon), plus the
aggregate principal amount of all Commercial Paper Notes then outstanding (together
with the interest thereon), less the aggregate principal amount of any of the then
Outstanding Commercial Paper Notes to be retired concurrently with the issuance of
the Commercial Paper Notes described in the Issuance Request (including interest
thereon), does not exceed the maximum principal amount of the Commercial Paper
Notes authorized in section 2.01 of the Ordinance to be outstanding at any one time
(the "Authorized Amount"), and (2) assigning to each Issuance Request received from
City a CUSIP number;
C. causing to be delivered a Commercial Paper Note on behalf of City
upon receipt of instructions from an Authorized Representative, as to the series,
principal amount, registered owner, Issue Date, Original Maturity Date, Extended
Maturity Date, Original Rate and Extended Rate by way of data entry transfer to the
DTC MMI Same Day Funds Settlement System("SDFS"), and to receive from SDFS a
confirmation receipt that such delivery was effected; and
d. holding the amounts on deposit in the appropriate funds and accounts
established pursuant to the Ordinance separate from all other funds, accounts and
subaccounts of Bank, and applying such amounts in accordance with the terms hereof
and of the Ordinance.
Bank shall have no duty or responsibility to make any transfer of the proceeds of the
sale of the Commercial Paper Notes, or to advance any moneys or effect any credit with respect
3
to such proceeds or transfers unless and until Bank has actually received the proceeds of the
sale of the Commercial Paper Notes.
6. Proceeds of Sale of the Commercial Paper:Totes.
(a) Contemporaneously with the execution and delivery of this Agreement, Bank will
establish an account designated as the City of Fort Worth, Texas General Purpose Series ECP
Note Payment Account (the "Note Payment Account"). On each day on which a Dealer or its
agent receives Commercial Paper Notes (whether through the facilities of DTC in the manner set
forth in the Letter of Representations or by delivery in accordance with the provisions of this
Agreement), all proceeds received by Bank in connection with such sale shall be credited in
immediately available funds to the Note Payment Account. From time to time upon written
instructions received by Bank from an Authorized Person or Authorized Representative, Bank
agrees to transfer immediately available funds from the Note Payment Account to City for
deposit in the City of Fort Worth, Texas General Purpose Series ECP Note Construction Account
(the "Construction Account") created in the ordinance establishing the Program (the
"Ordinance"), held by City. City agrees to provide Bank with wiring instructions to effect
transfers to the Construction Account. If Bank chooses, in its sole discretion, to credit City's
account before Bank has collected funds for delivery of Commercial Paper Notes, it is
understood that such credit shall be an advance to City to be promptly repaid to Bank from
proceeds of sale of Commercial Paper Notes. If any such advance is not repaid by 5:00 p.m. on
the day it is made, City shall repay such advance on the next Business Day together with interest
thereon at the rate charged by Bank for such advance, which rate shall not be less than the Prime
Rate as defined and subject to the limitation described in Section 7(d).
(b) Moneys deposited in the Note Payment Account may be invested by Bank in
Eligible Investments as specified in and pursuant to a written direction of the Chief Financial
Officer/Director of Financial Management Services of City or the designee thereof, and Bank
may conclusively presume that any investment in which Bank is so directed qualifies as an
Eligible Investment. City recognizes and agrees that Bank will not provide supervision,
recommendations or advice relating to either the investment of funds or the purchase or
disposition of any investment and Bank shall not have any liability for any loss in an investment
made pursuant to the terms of the written direction received from City. Bank has no
responsibility whatsoever to determine the market or other value of any investment and makes no
representation or warranty as to the accuracy of any such valuations. To the extent applicable
regulations grant rights to receive brokerage confirmations for certain security transactions, City
waives receipt of such confirmations. Bank may elect, but shall not be obligated, to credit the
Note Payment Account with funds representing income or principal payments due on, or sales
proceeds due in respect of, assets in the Note Payment Account, or to credit to the Note Payment
Account assets intended to be purchased with such funds, in each case before actually receiving
the requisite funds from the payment source, or to otherwise advance funds for Note Payment
Account transactions. Notwithstanding anything else in this Agreement, (i) any such crediting of
funds or assets shall be provisional in nature, and Bank shall be authorized to reverse or offset
any such transactions or advances of funds in the event that Bank does not receive good funds
with respect thereto, and (ii) nothing in this Agreement shall constitute a waiver of any of Bank's
rights as a securities intermediary under Uniform Commercial Code Sec. 9-206, as it is applied
under Texas law. Bank may also off-set against and deduct from the Note Payment Account
with respect to checks or other deposits that have been credited to the Note Payment Account but
are subsequently returned unpaid or reversed.
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7. Payment of Commercial Paper Notes.
(a) By 1:00 p.m. on the date that any Commercial Paper Notes is scheduled to be paid
on its Original Maturity Date, City shall ensure that there shall have been transferred to Bank for
deposit in the Note Payment Account immediately available funds at least equal to the principal
amount of and interest on any Commercial Paper Notes scheduled to be paid on such Original
Redemption Date. When any Commercial Paper Note is presented to Bank for payment by the
holder thereof (which may, in the case of Book-Entry Commercial Paper Notes, be DTC or a
nominee of DTC) on its Original Maturity Date, payment shall be made from and charged to the
Note Payment Account to the extent funds are available in said account. The foregoing
notwithstanding, if the payment of any Commercial Paper Note is not made on its Original
Maturity Date and the maturity of the Commercial Paper Note has been extended to an Extended
Maturity Date, the payment of the interest on such Commercial Paper Note due and accruing
shall be paid on the Original Maturity Date.
(b) Each Commercial Paper Note presented to Bank for payment at or prior to 2:15
p.m. on any Business Day at or after its Original Maturity Date shall be paid by Bank on the
same day as such presentation (or if presented after 2:t 5 p.m. on any such Business Day, then on
the next succeeding Business Day) to the extent funds are available in the Note Payment
Account. The foregoing notwithstanding, if the principal of any Commercial Paper Note is not
paid on its Original Maturity Date, the maturity of such Commercial Paper Note shall
automatically be extended to its Extended Maturity Date, payment of the principal of such
Commercial Paper Note shall occur on its Extended Maturity Date or on its date of prior
redemption. If the Original Maturity Date is before the 15th day of the month, and the City
exercises its option in accordance with the Ordinance to extend the Original Maturity Date of a
Commercial Paper Note to an Extended Maturity Date, interest accruing after the Original
Maturity Date shall be payable on the first Business Day of the next month and on the first
Business Day of each month thereafter and on the Extended Maturity Date for, or the date fixed
for redemption of, the Commercial Paper Note. If the Original Maturity Date is on or after the
15th day of the month, and the City exercises its option in accordance with the Ordinance to
extend the Original Maturity Date of this Commercial Paper Note to an Extended Maturity Date,
interest accruing after the Original Maturity Date shall be payable on the first Business Day of
the second succeeding month and on the first Business Day of each month thereafter and on the
Extended Maturity Date for, or the date fixed for redemption of, the Commercial Paper Note.
(c) By 1:00 p.m. on the date that any Commercial Paper Note is scheduled to mature,
whether on its Original Maturity Date or Extended Maturity Date or upon redemption after the
Original Maturity Date, City shall ensure that there shall have been transferred to Bank for
deposit in the Note Payment Account immediately available funds at least equal to the amount of
Commercial Paper Notes maturing or being redeemed on such date. When any matured or
redeemed Commercial Paper Note is presented to Bank for payment by the holder thereof(which
may, in the case of Book-Entry Commercial Paper Notes, be DTC or a nominee of DTC),
payment shall be made from and charged to the Note Payment Account to the extent funds are
available in said account.
(d) Bank may, but shall have no obligation to, make a payment pursuant to Section
7(a) hereof, whether on an Original Maturity Date, an Extended Maturity Date or a redemption
date, prior to receipt from City of sufficient immediately available funds. In such case, City
5
agrees to promptly repay such advance provided that, if such advance is not repaid by 5:00 p.m.,
New York time, on the day it is made, City shall repay such advance on the next Business Day
together with interest thereon at the Prime Rate. No prior action or course of dealing on the part
of Bank with respect to advances of the purchase price or payments of matured or redeemed
Commercial Paper Notes shall give rise to any claim or cause of action by City against Bank in
the event that Bank refuses to pay or settle any Commercial Paper Notes for which City has not
timely provided funds as required by this Agreement. In no event shall the Prime Rate exceed
the Maximum Interest Rate. As used in this Agreement, "Prime Rate" means the rate per annum
interest which U.S. Bank Trust Company, National Association ("USBTCNA") announces
publicly or otherwise makes available to the public from time to time as its "prime rate"
(currently calculated on the basis of actual number of days elapsed over a year of 360 days) with
any change in the "prime rate" to be effective on and as of the date of any change in said "prime
rate". The Prime Rate and the calculation thereof may be established by USBTCNA in its sole
discretion and is not necessarily the lowest rate of interest offered by USBTCNA to its most
creditworthy customers. The Prime Rate is a variable or fluctuating rate which increases or
decreases from time to time. City shall assure the prompt reimbursement to Bank of any such
advance (including the interest thereon).
8. Redemption of Commercial Paper Notes. Upon receipt from Dealer of a
written notice directing Bank to redeem Commercial Paper Notes in the form of Exhibit C (a
"Direction to Redeem") by no later than 9:00 a.m. on the second Business Day prior to the date
fixed for redemption, Bank shall correspondingly (i) notify DTC by no later than 12:00 noon on
the second Business Day prior to such redemption date that notice of redemption to redeem such
Commercial Paper Notes has been received, and (ii) by no later than 4:30 p.m., New York time,
on the second Business Day prior to the date fixed for redemption, cause such notice to redeem
such Commercial Paper Notes in the form of Exhibit D (a "Redemption Notice") on the date
fixed for redemption to be posted on EMMA.
9. Representations and Warranties of City. City hereby warrants and represents
to Bank, and, each request to issue Commercial Paper Notes shall constitute City's continuing
warranty and representation, as follows:
(a) This Agreement is, and all Commercial Paper Notes delivered to Bank pursuant to
this Agreement will be, duly authorized, executed and delivered by City. Bank's appointment to
act for City hereunder is duly authorized by City.
(b) The issuance and delivery of the Commercial Paper Notes will not violate any
state or federal law and the Commercial Paper Notes do not require registration under the
Securities Act of 1933, as amended.
(c) This Agreement constitutes, and the Commercial Paper Notes, when completed,
countersigned, and delivered pursuant hereto, will constitute, City's legal, valid and binding
obligations enforceable against City in accordance with their terms, except as such enforceability
may be limited by principles of governmental immunity of political subdivisions, bankruptcy,
insolvency, reorganization, moratorium or other similar laws heretofore or hereafter enacted to
the extent constitutionally applicable affecting the rights of creditors generally and by general
principles of equity.
(d) City is a home-rule municipality and political subdivision duly organized and
6
validly existing under the laws of Texas, and no liquidation, dissolution, bankruptcy, windup or
similar proceedings have been instituted with respect to City.
(e) City has, and at all relevant times has had, all necessary power and authority to
execute, deliver and perform this Agreement and to issue the Commercial Paper Notes.
(f) City has taken all actions which are required for the authorization of the issuance
of the Commercial Paper Notes, including specifically the adoption of the Ordinance, which
Ordinance authorized the execution, delivery and performance of this Agreement, and such
actions do not require the approval or consent of any holder or trustee of any indebtedness or
obligations of City.
(g) The issuance of Commercial Paper Notes by City (i) does not and will not
contravene any provision of any governmental law, regulation or rule in effect under the laws of
the State of Texas applicable to City, and (ii) does not and will not conflict with, breach or
contravene the provisions of any contract or other instrument binding upon City.
(h) The issuance and delivery of the Commercial Paper Note(s) have been effected
under the terms of the Ordinance.
10. Reliance on Instructions. Bank shall incur no liability to City in acting
hereunder upon instructions contemplated hereby which Bank reasonably believed in good faith
to have been given by an Authorized Representative or an Authorized Person, as the case may
be. Instructions transmitted via SPANS Online (as defined in Section 18 hereof) shall be the
equivalent to the giving of a duly authorized written instruction which Bank may act upon
without liability. In the event a discrepancy exists between any telephonic instructions and any
other such instructions, the telephonic instructions as understood by Bank will be deemed to
control.
11. Cancellation of Commercial Paper Notes. Upon payment by Bank of
Certificated Commercial Paper Note(s)presented for payment, Bank shall mark such Certificated
Commercial Paper Note(s) as paid and (i) in due course cancel Certificated Commercial Paper
Note(s) presented for payment and from time to time return such canceled Certificated
Commercial Paper Notes to City, or (ii) destroy such Certificated Commercial Paper Notes(s)
and deliver to City from time to time a destruction certificate identifying all Certificated
Commercial Paper Notes destroyed since the issuance of the prior destruction certificate. Upon
the written request of City, Bank agrees to cancel and return to City all unissued Certificated
Commercial Paper Notes in Bank's possession at the time of such request.
12. Termination.
(a) This Agreement may be terminated at any time by either Bank or City by sixty
(60) days' prior written notice to the other, provided that, so long as City continues to pay the
fees and expenses of Bank as set forth herein, Bank agrees to continue acting as issuing and
paying agent hereunder until such time as Bank's successor has been selected and has entered
into an agreement with City to that effect. Such termination shall not affect the respective
liabilities of the parties hereunder arising prior to such termination.
(b) If no successor has been appointed within such 60-day period, then Bank shall
7
have the right to petition a court of competent jurisdiction for the appointment of Bank's
successor hereunder. Bank shall be reimbursed for any and all reasonable expenses in
connection with any such petition and appointment.
(c) On the Business Day following the date of termination of this Agreement, Bank
shall destroy all Certificated Commercial Paper Notes in Bank's possession and shall transfer to
City all funds, if any, then on deposit in the Note Payment Account after deduction and payment
to Bank of all reasonable fees and expenses(including court costs and attorneys' fees) payable to,
incurred by, or expected to be incurred by Bank in connection with the performance of its duties
and the exercise of its rights hereunder. In the event Bank withholds funds for fees and expenses
that it expects to incur, and such expected fees and expenses are either not incurred or are less
than expected, Bank shall promptly transfer such surplus funds to City. Bank shall promptly
notify City of all Certificated Commercial Paper Notes so destroyed.
13. Binding Effect; Successors. This Agreement shall be binding upon the
respective parties hereto and their heirs, executors, successors or assigns. If Bank consolidates,
merges or converts into, or transfers all or substantially all of its corporate trust business
(including this Agreement) to another corporation, Bank shall provide written notice to City of
such event prior to such consolidation, merger, conversion or transfer becoming effective, and
the successor or transferee corporation without any further act shall be the successor Bank.
14. Liability of Bank.
(a) Bank shall not be liable for any act or omission hereunder, except in the case of
negligence or willful misconduct as described in Section 15 herein. Bank's duties shall be
determined by the express provisions of this Agreement, the Letter of Representations (including
the documents referred to therein) and the Ordinance, and Bank shall be responsible for the
performance of only such duties and obligations as are specifically set forth herein and therein,
and no implied covenants shall be read into any such document against Bank. Bank has no
fiduciary or discretionary duties of any kind.
(b) Bank shall have no liability under and no duty to inquire as to the provisions of any
agreement other than this Agreement. Bank shall not be required to ascertain whether any
issuance or sale of Commercial Paper Note(s) (or any amendment or termination of this
Agreement) has been duly authorized or is in compliance with any other agreement to which
City is a party (whether or not Bank is a party to such other agreement).
(c) In no event shall Bank be liable to City for incidental, indirect, special, consequential
or punitive damages or penalties (including, but not limited to, lost profits) even if Bank has been
advised of the likelihood of such damages or penalty and regardless of the form of action. Bank
shall not be responsible for delays or failures in performance resulting from acts beyond its direct
control, including, without limitation, acts of God, strikes, lockouts, acts of war or terror,
epidemics, governmental regulations, fire, communication line failures, computer viruses,
insurrections or attacks,power failures, earthquakes or other disasters.
(d) Bank shall not be obligated to take any legal action or commence any proceeding in
connection with this Agreement, any funds in the Note Payment Fund, prosecute or defend any
such legal action or proceeding or to take any other action that Bank determines in its sole
judgment,reasonably exercised, may expose it to liability or expense.
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(e) If, at any time, Bank is unable to determine, to Bank's sole satisfaction, the proper
disposition of all or any portion of the Note Payment Account or Bank's proper actions with
respect to its obligations hereunder, then Bank may, in its sole discretion, take either or both of
the following actions:
i. suspend the performance of any of its obligations (including without
limitation any disbursement obligations) under this Agreement until such uncertainty
shall be resolved in good faith satisfaction of Bank; or
ii. petition (by means of an interpleader action or any other appropriate
method) any court of competent jurisdiction, in any venue convenient to Bank, for
instructions with respect to such dispute or uncertainty, and to the extent required or
permitted by law, pay into such court, for holding and disposition in accordance with the
instructions of such court, all funds held by it hereunder, after deduction and payment to
Bank of all fees and reasonable expenses (including court costs and attorneys' fees)
payable to, incurred by, or expected to be incurred by, Bank in connection with the
performance of its duties and the exercise of its rights hereunder.
15. Indemnification of Bank. To the extent permitted by the laws of the State of
Texas, City agrees to indemnify and hold Bank, and its directors, officers and employees
harmless from and against, and Bank shall not be liable for, any and all claims (whether asserted
by City, Dealer, any Commercial Paper Note holder or any other person or entity), losses,
liabilities (including liabilities for penalties), actions, suits,judgments, demands, damages, costs
and expenses of any nature (including, without limitation, attorneys' fees and expenses) arising
out of or resulting from the exercise of its rights and/or the performance of its duties hereunder;
provided, however, that City shall not be liable to indemnify or pay Bank or any of its officers,
employees or agents with respect to any claim, loss, liability, action, suit, judgment, demand,
damage, cost or expense to the extent determined by a court of competent jurisdiction to have
been directly or indirectly caused by Bank's negligence or willful misconduct. The foregoing
indemnity includes, but is not limited to, (i) any action taken or omitted to be taken by Bank or
any of its officers, employees or agents upon written, telecopy, telephonic or other electronically
transmitted instructions (authorized herein) received by Bank from, or believed by it in good
faith to have been given by, the proper person or persons and (ii) all costs and expenses incurred
by Bank and any of its directors, officers, and employees in connection with the enforcement of
City's obligations under this Section 15. The provisions of this Section 15 shall survive (i)
Bank's resignation or removal hereunder and(ii) the termination of this Agreement.
16. Compensation of Bank.
(a) Fees and Expenses. City agrees to compensate Bank on demand for its services
hereunder in accordance with the Schedule of Fees attached hereto as Exhibit C, as such
Schedule of Fees may be amended from time to time by written agreement of each party hereto.
The obligations of City under this Section 16 shall survive any termination of this Agreement
and the resignation or removal of Bank.
(b) Security and Offset. City hereby grants to Bank a security interest in, lien upon
and right of offset against the Note Funds with respect to any compensation or reimbursement
due any of them hereunder. If for any reason the Note Funds are insufficient to cover such
9
compensation and reimbursement, City shall promptly pay such amounts to Bank upon receipt of
an itemized invoice. All disbursements of funds from the Note Funds shall be subject to the fees
and claims of Bank pursuant to this Section.
17. Identifying Information. To help the government fight the funding of terrorism
and money laundering activities, Federal law requires all financial institutions to obtain, verify,
and record information that identifies each person who opens an account. For a non-individual
person such as a business entity, a charity, a trust, or other legal entity, Bank requires
documentation to verify its formation and existence as a legal entity. Bank may ask to see
financial statements, licenses, and identification and authorization documents from individuals
claiming authority to represent the entity or other relevant documentation. The parties
acknowledge that a portion of the identifying information set forth herein is being requested by
Bank in connection with the USA Patriot Act, Pub.L.107-56 (the "Act"), and each agrees to
provide any additional information requested by Bank in connection with the Act or any other
legislation or regulation to which Bank is subject, in a timely manner.
18. SPANS Online.
(a) City and each Authorized Representative may use the U.S. Bank Trust Company,
Securities Processing Automated Notes System Online ("SPANS Online") instruction and
reporting communication service to transmit instructions to Bank or obtain reports with respect
to the Commercial Paper Notes. City may, by separate agreement between City and one or more
of its Authorized Persons, authorize the Authorized Person to directly access SPANS Online for
the purposes of transmitting instructions to Bank or obtaining reports with respect to the
Commercial Paper Notes. City acknowledges that (i) some or all of the services utilized in
connection with SPANS Online are furnished by SS&C Technologies, Inc. ("SS&C"),
(ii) SPANS Online is provided to City "AS IS" without warranties or representations of any kind
whatsoever, and (iii) SPANS Online is proprietary and confidential property disclosed to City in
confidence and may be utilized only on the SPANS Online Terms and Conditions as set forth in
the SPANS Online website and for purposes set forth in this Agreement.
(b) To permit the use of SPANS Online to transmit instructions and/or obtain reports
with respect to the Commercial Paper Notes, Bank will supply City with a customer
identification number and initial passwords. City may thereafter change its passwords directly
through SPANS Online. City will keep all information relating to its identification number and
passwords strictly confidential and will be responsible for the maintenance of adequate security
over its customer identification number and passwords. Instructions transmitted over SPANS
Online and received by Bank pursuant to this Agreement shall be deemed conclusive evidence
that such instructions are correct and complete and that the issuance or redemption of the
Commercial Paper Notes directed thereby has been duly authorized by City.
19. Notices.
(a) Issuance Requests hereunder shall be (a) mailed, (b) telephoned, (c) transmitted
by facsimile device, or (d) transmitted electronically to Bank at the address,
telephone number or facsimile number specified below, and shall be deemed
delivered upon receipt by Bank at the address, telephone number and/or facsimile
number specified below.
10
(b) All communications to Bank by or on behalf of City or a Dealer, by writing or
telephone, which relate to the completion, delivery or payment of any
Commercial Paper Note, are to be delivered to Bank via SPANS Online or
directed to Commercial Paper Operations at the address or telephone number
indicated below or to such other address or telephone number as Bank specifies to
City in writing.
U.S. Bank Trust Company,National Association
100 Wall Street, 16th Floor
New York,NY 10005
Attention: Commercial Paper Operations
Facsimile No.: (212) 509-4529
Telephone No.: (212) 951-8508
Email address: mmi.processinggusbank.com
(b) Notices and other communications hereunder to Bank (other than
communications that relate to the completion, delivery or payment of any Commercial Paper
Note) or to City are to be directed to the address or telephone number indicated below, or to such
other address or telephone number as the party receiving such notice shall have previously
specified in writing to the party sending such notice:
If to City at:
City of Fort Worth, Texas
200 Texas Street, Third Floor
Fort Worth, Texas 76102
Attention: Chief Financial Officer/Director of Financial Management
Services
Telephone: (817) 392-8500
Fax: (817) 392-8966
E-Mail: reginald.zenogfortworthtexas.gov
With a copy to the City Law Department at the same address.
If to Bank at:
U.S. Bank Trust Company,National Association
100 Wall Street, Suite 1600
New York,NY 10005
Attention: Corporate Trust Administration
Facsimile No.: (212) 509-3384
Telephone No.: (212) 951-8561
Notices shall be deemed delivered when received at the applicable address specified above. For
purposes of this Section 19, "when received" shall mean actual receipt (i) of an electronic
communication by facsimile or email transmission or SPANS Online; or (ii) of an oral
communication by any person answering the telephone at the office of the individual or
department specified in or pursuant to this Agreement; or (iii) of a written communication
11
hand-delivered, by national overnight courier service, or by first class, certified or registered
mail, return receipt requested, at the office specified in or pursuant to this Agreement.
20. Optional Security Procedures. In the event funds transfer instructions, address
changes or change in contact information are given (other than in writing at the time of execution
of this Agreement), whether in writing, by facsimile or otherwise, Bank is authorized but shall be
under no duty to seek confirmation of such instructions by telephone call-back to an Authorized
Representative, and Bank may rely upon the confirmation of anyone purporting to be the person
or persons so designated. The persons and telephone numbers for call-backs may be changed
only in writing actually received and acknowledged by Bank and shall be effective only after
Bank has a reasonable opportunity to act on such changes. City agrees that Bank may at its
option record any telephone calls made pursuant to this Section. Bank in any funds transfer may
rely solely upon any account numbers or similar identifying numbers provided by City to
identify (a) the beneficiary, (b) the beneficiary's bank, or (c) an intermediary bank. Bank may
apply funds for any payment order it executes using any such identifying number, even when its
use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank
other than the beneficiary's bank or an intermediary bank designated. City acknowledges that
these optional security procedures are commercially reasonable.
21. Amendment, Waiver and Assignment. None of the terms or conditions of this
Agreement may be changed, waived, modified, discharged, terminated or varied in any manner
whatsoever unless in writing duly signed by each party to this Agreement. No course of conduct
shall constitute a waiver of any of the terms and conditions of this Agreement, unless such
waiver is specified in writing, and then only to the extent so specified. A waiver of any of the
terms and conditions of this Agreement on one occasion shall not constitute a waiver of the other
terms of this Agreement, or of such terms and conditions on any other occasion. Except as
provided in Section 13 hereof, this Agreement may not be assigned by any party without the
written consent of the other party.
22. Severability. To the extent any provision of this Agreement is prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Agreement.
23. No Israel Boycott. Pursuant to Section 2270.002, Texas Government Code, Bank
hereby represents that as a "Company", as defined in Section 808.001, Texas Government Code,
Bank, or any wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate
of Bank, does not Boycott Israel and, subject to or as otherwise required by applicable Federal
law, including, without limitation, 50 U.S.C. Section 4607, Bank, as a "Company", as defined in
Section 808.001, Texas Government Code, or any wholly owned subsidiary, majority-owned
subsidiary, parent company or affiliate of Bank, agrees not to Boycott Israel during the term of
this Agreement. For purposes of this Section, "Boycott Israel" shall have the meaning given
such term in Section 2270.002, Texas Government Code.
24. Foreign Terrorist Organization. For purposes of Subchapter F of Chapter
2252 of the Texas Government Code, at the time of execution of this Agreement, Bank hereby
represents and warrants that as a "Company", as defined in Sections 806.001 and 807.001, Texas
Government Code, Bank, or any wholly owned subsidiary, majority-owned subsidiary, parent
company or affiliate of Bank, (i) does not engage in business with Iran, Sudan or any foreign
12
terrorist organization as described in Chapters 806 or 805 of the Texas Government Code, or
Subchapter F of Chapter 2252 of the Texas Government Code, and (ii) is not a company listed by
the Texas Comptroller of Public Accounts under Sections 806.051, 807.051 or 2252.153 of the
Texas Government Code. The term "foreign terrorist organization" shall have the meaning given
such term in Section 2252.151, Texas Government Code.
25. Chapter 2274, Texas Government Code (No Discrimination ALYainst Fossil-
Fuel Companies). To the extent this Agreement constitutes a contract for goods or services for
which a written verification is required under Section 2274.002 (as added by Senate Bill 13 in
the 87th Texas Legislature, Regular Session), Texas Government Code, as amended, Bank
hereby verifies that it and its parent company, wholly- or majority-owned subsidiaries, and other
affiliates, if any, do not boycott energy companies and will not boycott energy companies during
the term of this Agreement. The foregoing verification is made solely to enable the City to
comply with such Section and to the extent such Section does not contravene applicable Texas or
federal law. As used in the foregoing verification, "boycott energy companies" shall mean,
without an ordinary business purpose, refusing to deal with, terminating business activities with,
or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit
commercial relations with a company because the company (A) engages in the exploration,
production, utilization, transportation, sale, or manufacturing of fossil fuel-based energy and
does not commit or pledge to meet environmental standards beyond applicable federal and state
law; or (B) does business with a company described by (A) above. As used in this Section, Bank
understands "affiliate" to mean an entity that controls, is controlled by, or is under common
control with Bank within the meaning of SEC Rule 133(f), 17 C.F.R. § 230.133(f), and exists to
make a profit.
26. Chapter 2274, Texas Government Code (No Discrimination Against Firearm
Entities and Firearm Trade Associations). To the extent this Agreement constitutes a contract
for goods or services for which a written verification is required under Section 2274.002 (as
added by Senate Bill 19 in the 87th Texas Legislature, Regular Session), Texas Government
Code, as amended, Bank hereby verifies that it and its parent company, wholly- or majority-
owned subsidiaries, and other affiliates, if any, do not have a practice, policy, guidance, or
directive that discriminates against a firearm entity or firearm trade association and will not
discriminate during the term of this Agreement against a firearm entity or firearm trade
association. The foregoing verification is made solely to enable compliance with such Section
and to the extent such Section does not contravene applicable Texas or federal law. As used in
the foregoing verification, (a) "discriminate against a firearm entity or firearm trade association"
(A) means, with respect to the firearm entity or firearm trade association, to (i) refuse to engage
in the trade of any goods or services with the firearm entity or firearm trade association based
solely on its status as a firearm entity or firearm trade association, (ii) refrain from continuing an
existing business relationship with the firearm entity or firearm trade association based solely on
its status as a firearm entity or firearm trade association, or (iii) terminate an existing business
relationship with the firearm entity or firearm trade association based solely on its status as a
firearm entity or firearm trade association and (B) does not include (i) the established policies of
a merchant, retail seller, or platform that restrict or prohibit the listing or selling of ammunition,
firearms, or firearm accessories and (ii) a company's refusal to engage in the trade of any goods
or services, decision to refrain from continuing an existing business relationship, or decision to
terminate an existing business relationship (aa)to comply with federal, state, or local law, policy,
or regulations or a directive by a regulatory agency or (bb) for any traditional business reason
that is specific to the customer or potential customer and not based solely on an entity's or
13
association's status as a firearm entity or firearm trade association, (b) "firearm entity" means a
manufacturer, distributor, wholesaler, supplier, or retailer of firearms (i.e., weapons that expel
projectiles by the action of explosive or expanding gases), firearm accessories (i.e., devices
specifically designed or adapted to enable an individual to wear, carry, store, or mount a firearm
on the individual or on a conveyance and items used in conjunction with or mounted on a firearm
that are not essential to the basic function of the firearm, including detachable firearm
magazines), or ammunition (i.e., a loaded cartridge case, primer, bullet, or propellant powder
with or without a projectile) or a sport shooting range (as defined by Section 250.001, Texas
Local Government Code), and (c) "firearm trade association" means a person, corporation,
unincorporated association, federation, business league, or business organization that (i) is not
organized or operated for profit (and none of the net earnings of which inures to the benefit of
any private shareholder or individual), (ii) has two or more firearm entities as members, and (iii)
is exempt from federal income taxation under Section 501(a), Internal Revenue Code of 1986, as
an organization described by Section 501(c) of that code. As used in this Section, Bank
understands "affiliate" to mean an entity that controls, is controlled by, or is under common
control with Bank within the meaning of SEC Rule 133(f), 17 C.F.R. § 230.133(f), and exists to
make a profit.
27. Attorney General Standing Letter. Bank represents that it has on file with the
Texas Attorney General a standing letter addressing the representations and verifications in
Sections 23 through 26 of this Agreement in a form acceptable to the Texas Attorney General. In
addition, if Bank or the parent company, a wholly- or majority-owned subsidiary or another
affiliate of Bank receives or has received a letter from the Texas Comptroller of Public Accounts
pursuant to Chapter 809, Texas Government Code seeking written verification that it does not
boycott energy companies (a"Comptroller Request Letter"), Bank shall promptly notify City and
Co-Bond Counsel (if it has not already done so) and provide to City or Co-Bond Counsel, upon
request by City or Co-Bond Counsel, written verification to the effect that its standing letter
described in the preceding sentence remains in effect and may be relied upon by City and the
Texas Attorney General (the `Bringdown Verification"). The Bringdown Verification shall also
confirm that Bank (or the parent company, a wholly- or majority-owned subsidiary or other
affiliate of Bank that received the Comptroller Request Letter) intends to timely respond or has
timely responded to the Comptroller Request Letter. The Bringdown Verification may be in the
form of an e-mail.
28. Governing Law. This Agreement shall be governed and construed in accordance
with laws of the State of Texas; however, the rights, duties and obligations of Bank shall be
governed and construed in accordance with the laws of the State of New York applicable to
contracts made and performed in the State of New York and, to the extent applicable, operating
circulars of the Federal Reserve Bank, federal laws and regulations as amended, New York
Clearing House rules and, to the extent not otherwise inconsistent with this Agreement, general
commercial bank practices applicable to commercial paper issuance and payment.
29. Entire Agreement, No Third Party Beneficiaries. This Agreement, together
with the Letter of Representations, constitutes the entire agreement between the parties relating
to Bank's issuing agent, paying agent and depositary duties and obligations to City. Except as
provided in Section 15 hereof, nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
14
k
30. Execution in Counterparts, Facsimiles. This Agreement may be executed in
two or more counterparts, which when so executed shall constitute one and the same agreement.
The delivery of copies of this Agreement as executed by PDF or facsimile transmission shall
constitute effective execution and delivery as to the parties and may be used in lieu of originals
for all purposes.
31. Dealings. Bank and any stockholder, director, officer or employee of Bank may
buy, sell, and deal in any of the securities of City, any Dealer or any purchaser of the
Commercial Paper Notes and become financially interested in any transaction in which City, any
Dealer or any such purchaser may be interested, and contract and lend money to City, any Dealer
or any such purchaser and otherwise act as fully and freely as though it were,not a depository,
issuing or paying agent under this Agreement. Nothing herein shall preclude Bank from acting
in any other capacity for City, any Dealer or any such purchaser or for any other person or entity.
32. Tax Reporting. Bank shall have no responsibility for the tax consequences of
this Agreement and City shall consult with independent counsel concerning any and all tax
matters. City shall provide IRS Form W-9 or Form W-8. To the extent required by the Internal
Revenue Code or regulations promulgated thereunder, Bank shall report the amount of interest
paid or the amount treated as interest accrued on the Commercial Paper Notes which is required
to be reported by the holders of the Commercial Paper Notes on their returns of federal income
tax, or assure that such report is made, to such holders and the Internal Revenue Service.
33. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY LAW,
EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ANY RIGHT THAT IT MAY
HAVE TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND,
ACTION OR CAUSE OF ACTION ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT.
34. PublicitV. No party will (a) use any other party's proprietary indicia, trademarks,
service marks, trade names, logos, symbols, or brand names, or (b) otherwise refer to or identify
any other party in advertising, publicity releases, or promotional or marketing publications, or
correspondence to third parties without, in each case, securing the prior written consent of such
other party.
35. Consent to Jurisdiction and Venue. Each party irrevocably and unconditionally
submits to the exclusive jurisdiction of the United States Federal courts located in Tarrant
County, Texas and waives any objection to such jurisdiction or venue. The parties hereto
consent to and agree to submit to the jurisdiction of any of the courts specified herein, and agree
to accept service of process to vest personal jurisdiction over them in any of these courts.
36. References to Time in this Agreement. All references to time in this Agreement
shall be to New York City time, unless the reference to time in this Agreement otherwise
indicates.
[Execution Page Follows]
15
IN WITNESS WHEREOF,the parties have caused this Issuing and Paying Agent
Agreement to be duly executed and delivered as of the day and year first above written.
CITY OF FORT WORTH TEXAS
By:
Name: David ` ce
Title: City Manager
ATTEST:
By: A 1440 ..
NameYJ Goodall ....
Title: Cry
U.S.BANK TRUST COMPANY,
NATIONAL ASSOCIATION
Authorized Officer's Signature
Name:
Title:
Signature Page—Issuing and Paying Agent Agreement
16
EXHIBIT A
Certificate of Authorized Representatives
We are the officers and employees of the City of Fort Worth, Texas (the "City") as
specified below. We are duly authorized pursuant to the "Ordinance approving and authorizing
the issuance by the City of Fort Worth, Texas of its General Purpose Commercial Paper Notes,
Series ECP, in an aggregate principal amount at any one time outstanding not to exceed
$300,000,000 to provide interim financing to pay Project Costs for Eligible Projects and to
refund obligations issued in connection with Eligible Projects; approving and authorizing certain
authorized officers and employees to act on behalf of the City in the selling and delivery of such
Commercial Paper Notes, within the limitations and procedures specified herein; making certain
covenants and agreements in connection therewith; resolving other matters incident and related
to the issuance, sale, security and delivery of such Commercial Paper Notes, including the
appointment of an Issuing and Paying Agent and a Dealer and approval of an Issuing and Paying
Agent Agreement and a Dealer Agreement; approving the use of an Offering Memorandum in
connection with the sale from time to time of such Commercial Paper Notes; and providing an
effective date" adopted on August 23, 2022 (the "Ordinance") and the Issuing and Paying Agent
Agreement dated as of September 1, 2022 between the City and U.S. Bank Trust Company,
National Association to act severally as an Authorized Representative (as defined in the
Ordinance) in connection with the issuance, from time to time, by the City of commercial paper
notes (the "Commercial Paper Notes") in accordance with the Ordinance. The signature of each
Authorized Representative is set forth beside their respective names.
Authorized Representatives Title Si a
David Cooke City Manager
Reginald Zeno Chief Financial Officer
Executed this,` 0%�day of 0 ' 2022.
Before me, on this day personally appeared the foregoing individuals, known to me to be
the officers whose true and genuine signatures were subscribedd above in my presence.
Given under my hand and seal of office this & day ofL ,
2022.
SELENA ALA 4Nota Pu lic
° 6�=Notary Public, State of Texas
� 1 0 Comm. Expires 03-31-2024
�!�
Notary ID 132422526
�b
�47 q �� A-1
Exhibit B
Form of Issuance Request
Date
[Issuing and Paying Agent]
Re: Issuance Request for issuance and sale of City of Fort Worth, Texas General Purpose Commercial
Paper Notes, Series ECP
You are hereby requested, instructed and authorized to issue, authenticate and deliver Commercial Paper
Notes of the above referenced series in the principal amount(s) scheduled to mature and bearing interest
upon receipt of the purchase price therefore from the identified purchaser(s), as shown in the attached
Schedule I hereto which is incorporated herein by reference and made a part of these instruction for all
purposes. Terms capitalized but not otherwise defined hereon shall have the meaning ascribed to them in
the ordinance establishing the General Purpose Commercial Paper program, adopted on August 23, 2022
(the "Ordinance").
Upon receipt of the proceeds of sale of the Commercial Paper Notes, (net of all expenses and costs of sale
and issuance),the undersigned certifies that the same should be deposited and disbursed as follows.
$_ Deposit to the credit of the Note Payment Fund, Account No. and
apply the deposit as follows: (1)for payment and redemption or purchase
of Outstanding Commercial Paper Notes, the amount of $ . Any
proceeds not deposited to the credit of the Note Payment Fund as
provided in the preceding sentence shall be transferred and deposited to
the Construction Account for payment of Project Costs as set forth
below.
$ Wire transfer for deposit to the Construction Account: , for credit to
the_,the amount of $ for the purpose of financing Project Costs.
The principal amount of the Commercial Paper Notes outstanding after this issuance: $
The undersigned represents that(i) all action on the part of the City necessary for the valid issuance of the
Commercial Paper Notes to be issued has been taken; (ii) all provisions of Texas and federal law
necessary for the valid issuance of the Commercial Paper Notes with provision for interest exemption
from federal income taxation have been complied with; (iii)the Commercial Paper Notes in the hands of
the Holders thereof will be valid and enforceable obligations of the City according to their terms, subject
to the exercise of judicial discretion in accordance with general principles of equity and bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting creditors' rights heretofore or
hereafter enacted to the extent constitutionally applicable; and (iv) based upon the advice of Bond
Counsel,the interest on the Commercial Paper Notes is exempt from federal income taxation.
The undersigned hereby certifies that (i) no Event of Default under Section 5.01 of the Ordinance has
occurred and is continuing as of the date of this Issuance Request; (ii)the City has been advised by Bond
Counsel that the projects to be financed with the proceeds of the Commercial Paper Notes will constitute
Projects or that the obligations to be refunded were issued in connection with Projects; (iii) the City is in
compliance with the covenants set forth in Article IV of the Ordinance as of the date of this Issuance
Request; and (iv) the City has been advised by Bond Counsel that the proposed expenditure of the
proceeds of such Commercial Paper Notes for such projects and refunding will not cause the City to be in
E-1
violation of its covenants set forth in Section 4.04 of the Ordinance.
Please forward debit and credit slips for each of the above transactions to the undersigned. The
undersigned, along with others is charged with responsibility for issuing the Commercial Paper Notes.
CITY OF FORT WORTH,TEXAS
By:
Name:
Title:
Acting as an Authorized Representative
Receipt of the Issuance Request is hereby acknowledged:
[Issuing and Paying Agent]
By:
Name:
Title:
SCHEDULEI
Principal Amount:
Note Date:
Original Interest Rate:
Original Maturity Date:
Purchase Price:
Purchaser:
E-1
Exhibit B
Direction to Redeem
U.S. Bank Trust Company, National Association
100 Wall Street, 16th Floor
New York, New York 10005
Re: City of Fort Worth, Texas General Purpose Commercial Paper Notes,
Series ECP
Ladies and Gentlemen:
U.S. Bank Trust Company, National Association, as Issuing and Paying Agent for the captioned
Notes, is hereby directed to cause City of Fort Worth, Texas General Purpose Commercial Paper
Notes, Series ECP, CUSIP Number , in the aggregate principal amount of$
to be called for redemption on , 20_ (the "Redemption Date"), at the price of par plus
accrued but unpaid interest to, but excluding, the date of redemption.
Dated:
LOOP CAPITAL MARKETS LLC, as Dealer
Title:
cc: Chief Financial Officer/Director of Financial
Management Services, City of Fort Worth, Texas
E-1
Exhibit D
Redemption Notice
Re: City of Fort Worth, Texas General Purpose Commercial Paper Notes,
Series ECP
U.S. Bank Trust Company, National Association, as Issuing and Paying Agent for the captioned
Notes, has been directed to give notice that the City of Fort Worth, Texas General Purpose
Commercial Paper Notes, Series ECP, CUSIP Number , in the aggregate principal
amount of $ , have been called for redemption, in accordance with the terms of the
ordinance of the City of Fort Worth, Texas authorizing the issuance of the captioned Notes, on
, 20 , at the price of par plus accrued but unpaid interest to, but excluding, the date of
redemption.
Dated:
E-1
Exhibit D
Fee Schedule
E-1
EXHIBIT E
FORM OF DEALER AGREEMENT
D-1
DEALER AGREEMENT
Between
THE CITY OF FORT WORTH, TEXAS
and
LOOP CAPITAL MARKETS LLC
Dated as of September 1, 2022
Relating to
City of Fort Worth, Texas General Purpose
Commercial Paper Notes, Series ECP
This Dealer Agreement, dated as of September 1, 2022 (this "Agreement"), is between
the CITY OF FORT WORTH, TEXAS (the "City") and LOOP CAPITAL MARKETS LLC (the
"Dealer"). For and in consideration of the mutual covenants made herein and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Background and Definitions.
(a) The City has authorized the issuance and reissuance from time-to-time of its tax-
exempt commercial paper notes (the "Commercial Paper Notes") in the aggregate principal
amount not to exceed $300,000,000 outstanding at any time.
(b) The City authorized the issuance of the Commercial Paper Notes pursuant to its
"Ordinance approving and authorizing the issuance by the City of Fort Worth, Texas of its
General Purpose Commercial Paper Notes, Series ECP, in an aggregate principal amount at any
one time outstanding not to exceed $300,000,000 to provide interim financing to pay Project
Costs for Projects and to refund obligations issued in connection with Projects; approving and
authorizing certain authorized officers and employees to act on behalf of the City in the selling
and delivery of such Commercial Paper Notes, within the limitations and procedures specified
herein; making certain covenants and agreements in connection therewith; resolving other
matters incident and related to the issuance, sale, security and delivery of such Commercial
Paper Notes, including the appointment of an Issuing and Paying Agent and a Dealer and
approval of an Issuing and Paying Agent Agreement and a Dealer Agreement; approving the use
of an Offering Memorandum in connection with the sale from time to time of such Commercial
Paper Notes; and providing an effective date", adopted on August 23, 2022 (the "Ordinance").
(c) The Ordinance provides for the appointment of commercial paper dealers to perform
certain duties, including the offering and sale from time-to-time of the Commercial Paper Notes
on behalf of the City.
(d) The Dealer has agreed to accept the duties and responsibilities under this Agreement
with respect to the Commercial Paper Notes under the Ordinance and this Agreement.
(e) Unless otherwise defined herein, all capitalized terms shall have the meanings
ascribed to them in the Ordinance or in the Issuing and Paying Agent Agreement between the
City and U.S. Bank Trust Company, National Association, dated as of September 1, 2022 (the
"Issuing and Paying Agent Agreement"). For purposes of this Agreement, the term "Business
Day" shall have the meaning given said term in the Ordinance.
(f) All references to time in this Agreement shall refer to prevailing time in New York,
New York.
Section 2. Appointment of Dealer.
(a) Subject to the terms and conditions contained herein, the City hereby appoints Loop
Capital Markets LLC as the Dealer for the Commercial Paper Notes, and Loop Capital Markets
LLC hereby accepts such appointment.
(b) The Dealer shall act as non-exclusive Dealer with respect to the Commercial Paper
Notes. The Dealer acknowledges that the City may enter into agreements with other dealers in
connection with the offering and sale of the Commercial Paper Notes on behalf of the City as set
forth in the Ordinance. The City will promptly notify the Dealer if the City enters into any such
agreement, or later terminates any such agreement.
Section 3. Responsibilities of Dealer.
(a) Subject to the terms and conditions set forth in this Agreement, the Dealer agrees to
perform the duties and responsibilities of the Dealer set forth in this Agreement. It is understood
that in undertaking to perform such duties, and in the performance thereof, it is the intention of
the parties that the Dealer will act solely as an agent and not as a principal, except as expressly
provided in this Agreement. The Dealer shall use its commercially reasonable efforts to solicit
and arrange sales of the Commercial Paper Notes on behalf of the City at such rates and
maturities as may prevail from time to time in the market. The Dealer and the City agree that any
Commercial Paper Notes which the Dealer may arrange the sale of or which, in the Dealer's sole
discretion, it may elect to purchase, will be purchased or sold on the terms and conditions and in
the manner provided in the Ordinance, the Issuing and Paying Agent Agreement and this
Agreement. Anything herein to the contrary notwithstanding, to the extent of any conflict
between the provisions hereof and of the Ordinance or the Issuing and Paying Agent Agreement,
the provisions of the Ordinance and the Issuing and Paying Agent Agreement shall be
controlling.
(b)Notwithstanding anything to the contrary contained herein, the Dealer:
(i) will suspend its efforts with respect to the offer or sale of the Commercial Paper Notes on
behalf of the City upon the receipt of notice of the occurrence of an Event of Default under the
Commercial Paper Notes, the Ordinance, or the Issuing and Paying Agent Agreement; and
(ii) may, in its sole discretion which shall not be unreasonable or arbitrarily exercised,
suspend its efforts with respect to the offer or sale of the Commercial Paper Notes on behalf of
the City immediately upon the occurrence of any of the following events, which suspension may
continue so long as such event continues to exist as to the Commercial Paper Notes (the Dealer
agrees to give notice to the City of its suspension of efforts promptly after such suspension
occurs):
(1) suspension or material limitation in trading in securities generally on the New York Stock
Exchange;
(2) a general moratorium on commercial banking or securities settlement or clearance
services in New York is declared by either federal or New York State authorities;
(3) the engagement by the United States in hostilities if the effect of such engagement, in the
Dealer's reasonable judgment, makes it impractical or inadvisable to proceed with the solicitation
of offers to purchase the Commercial Paper Notes;
(4) legislation shall be introduced by committee, by amendment or otherwise, or be enacted
by, the House of Representatives or the Senate of the Congress of the United States (the
2
"Congress"), or a decision by a court of the United States shall be rendered, or a stop order,
ruling, regulation or official statement by, or on behalf of, the United States Securities and
Exchange Commission or other governmental agency having jurisdiction of the subject matter
shall be made or proposed, to the effect that the offering or sale of obligations of the general
character of the Commercial Paper Notes, as contemplated hereby, is or would be in violation of
any provision of the Securities Act of 1933, as amended and then in effect, or the Securities
Exchange Act of 1934, as amended and then in effect, or with the purpose or effect of otherwise
prohibiting the offering or sale of obligations of the general character of the Commercial Paper
Notes or the Commercial Paper Notes transactions, as contemplated hereby;
(5) any event shall occur or information shall become known, which makes untrue, incorrect
or misleading in any material respect any statement or information contained in any disclosure
documents provided to the Dealer by the City in connection with the performance of the Dealer's
duties hereunder, whether provided pursuant to Section 8 hereof or otherwise, or causes such
documents to contain an untrue, incorrect or misleading statement of a material fact or to omit to
state a material fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not misleading;
(6) any governmental authority shall impose, as to the Commercial Paper Notes, or
obligations of the general character of the Commercial Paper Notes, any material restrictions not
now in force, or increase materially those now in force;
(7) any of the representations and warranties of the City made in this Agreement shall not
have been true and correct on the date made;
(8) the City fails to observe any of the covenants or agreements made in this Agreement or if
the Ordinance or the Issuing and Paying Agent Agreement is no longer in full force and effect;
(9) any rating agency then rating the Commercial Paper Notes shall either (i) downgrade the
short-term ratings assigned to the Commercial Paper Notes or (ii) suspend or withdraw the then
current ratings assigned to the Commercial Paper Notes;
(10) an actual or imminent default or a moratorium in respect of payment of any U.S.
Treasury bills, bonds or notes occurs, the effect of which, in the Dealer's reasonable judgment,
makes it impractical to market the Commercial Paper Notes or to enforce contracts for the sale of
the Commercial Paper Notes;
(11) trading of any securities of the City shall have been suspended on any exchange or in any
over-the-counter market;
(12) any material adverse change in the financial markets generally that, in the reasonable
judgment of the Dealer, makes it impracticable or inadvisable to proceed with the offering or sale
of the Commercial Paper Notes; or
(13) (i) legislation shall have been enacted by the Congress, introduced in the Congress or
recommended to the Congress for passage by the President of the United States or the United
States Department of the Treasury (the "Treasury Department") or the Internal Revenue Service
or favorably reported for passage to either house of Congress by any Committee of such House
3
to which such legislation has been referred for consideration or passed by either house of
Congress, (ii) a decision shall have been rendered by a court of the United States or the United
States Tax Court, or(iii) an order, ruling or communication (including a press release) shall have
been issued by the Treasury Department or other agency with competent jurisdiction, in each
case with respect to federal taxation upon revenues or other income derived by the City or any
similar body, or upon interest received on obligations of the general character of the Commercial
Paper Notes or the Commercial Paper Notes transactions, that in the reasonable judgment of the
Dealer materially adversely affects the market for the Commercial Paper Notes.
Section 4. Transactions in Commercial Paper Notes. All transactions in Commercial
Paper Notes between the Dealer and the City shall be in accordance with the Ordinance, the
Issuing and Paying Agent Agreement, this Agreement and with the customs and practices in the
commercial paper market regarding settlement and delivery formally adopted in writing from
time to time by the New York Clearinghouse, to the extent not inconsistent with the Ordinance.
As early as possible, but not later than 12:30 p.m. on the day on which any Commercial Paper
Note is to be issued, the Dealer shall notify the City of the proposed Original Maturity Dates,
prices and interest rates (which interest rates shall not exceed the Maximum Interest Rate as
defined in the Ordinance) at which the Dealer will purchase or cause the purchase of the
Commercial Paper Notes, and provide the City with any other information as required for
delivery of such Commercial Paper Notes. Except as described below, the Dealer shall not be
obligated to purchase or cause the purchase of any Commercial Paper Notes unless and until
agreement has been reached in each case on the foregoing points and the Dealer has agreed to
such purchase. Not later than 2:30 p.m. on the date of each transaction the Dealer shall either (a)
confirm each transaction made with or arranged by it or (b) notify the City and the Issuing and
Paying Agent of the difference, if any, between the principal amount of maturing Commercial
Paper Notes and the principal amount of Commercial Paper Notes which the Dealer has arranged
to sell or has agreed to purchase. Such confirmation or notification shall be given by telephone
(or by other telecommunications medium acceptable to the City) and in writing to the City and
the Issuing and Paying Agent pursuant to the requirements of Section 14(a) hereof.
Section 5. Payment for Commercial Paper Notes. The Dealer shall pay for the
Commercial Paper Notes sold by the Dealer (or purchased by the Dealer for its own account) in
immediately available funds by 2:00 p.m. on the Business Day such Commercial Paper Notes are
delivered to the Dealer (provided that such Commercial Paper Notes are so delivered to the
Dealer by 12:30 p.m. on such Business Day). All Commercial Paper Notes will be sold at par,
and the Commercial Paper Notes will be evidenced either by (i) a global master commercial
paper note immobilized with DTC or (ii) commercial paper notes in the form attached to the
Ordinance.
Section 6. Authorized Representatives. Commercial Paper Note transactions with the
City, pursuant to Section 4 hereof, shall be with any one of the officers or employees of the City
who are designated as Authorized Representatives by certificate signed by the Authorized
Representative. The initial written designation of the Authorized Representatives is appended
hereto as Appendix A. By approving this Agreement, the City Council approves the designation
of the individuals named in Appendix A to act as Authorized Representatives for all purposes
under the Ordinance. The City agrees to provide the Dealer with revised written designations in
the form of Appendix A when and as required by changes in the Authorized Representatives.
4
The Dealer may rely upon such designation unless and until otherwise notified in writing by the
City.
Section 7. Resignation of Dealer. The Dealer may at any time resign and be discharged
of its duties and obligations hereunder upon providing the City and the Issuing and Paying Agent
with ninety (90) days' prior written notice or, if earlier, on the date that a replacement Dealer has
been appointed by the City if the City in its sole discretion elects to appoint a replacement
Dealer. The Dealer shall assign and deliver this Agreement to its successor if requested by the
City.
Section 8. Furnishing of Disclosure Materials.
(a) Prior to the first issuance of Commercial Paper Notes under the Ordinance, the City
agrees to furnish the Dealer with as many copies as the Dealer may reasonably request of the
offering memorandum of the City relating to the Commercial Paper Notes (the "Offering
Memorandum"), and such other information with respect to the City and the Commercial Paper
Notes as the Dealer may reasonably request from time to time.
(b) The City agrees to prepare (and the Dealer agrees to cooperate in the City's
preparation of) from time-to-time a new Offering Memorandum of the City for the Commercial
Paper Notes in the event the Dealer determines that the preparation and distribution of such
Offering Memorandum is necessary or desirable in connection with offering and sale on behalf
of the City of the Commercial Paper Notes, and to furnish or to cause to be furnished to the
Dealer as many copies of such new Offering Memorandum as the Dealer may reasonably
request.
(c) If, at any time during the term of this Agreement, any event shall occur or facts
become known to either party that might affect the correctness or completeness of any statement
of a material fact contained in the then current Offering Memorandum, such party shall promptly
notify the other in writing of the circumstances and details of such event. The City agrees to
promptly furnish to the Dealer a copy of each filing or notice made to anyone (whether in
connection with the Commercial Paper Notes or otherwise) pursuant to any undertaking or other
agreement of the City made under any provision of Rule 15c2-12 promulgated by the United
States Securities and Exchange Commission.
Section 9. Indemnification and Contribution. To the extent permitted by Texas law,
the City agrees to indemnify the Dealer and to hold the Dealer harmless against any loss,
damage, claim, liability or expense (including reasonable cost of defense) arising out of, or based
upon, any allegation that any of the information provided by the City to the Dealer pursuant to
this Agreement includes any untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein not misleading in light of circumstances under
which they were made.
Section 10. Fees and Expenses. In addition to any fees paid by the City in connection
with the creation of the commercial paper program pursuant to which the Commercial Paper
Notes shall be issued, as compensation to the Dealer hereunder, the City agrees to pay to the
Dealer during each calendar year a fee equal to 0.09% times the principal amount of the
5
Commercial Paper Notes Outstanding, times the number of days such Commercial Paper Notes
are Outstanding, divided by 365 or 366 (as appropriate), payable quarterly (for quarters ending
March 31, June 30, September 30 and December 31, commencing with the quarter ending
December 31, 2022) in arrears on the first day of each January, April, July and October.
Section 11. Representations, Warranties, Covenants and Agreements of the City.
The City, by its acceptance hereof, represents, warrants, covenants, and agrees with the Dealer
that:
(a) it is a home-rule municipality created and functioning under the Constitution and laws
of the State of Texas;
(b) it has full power and authority to take all actions required or permitted to be taken by
the City by or under, and to perform and observe the covenants and agreements on its part
contained in, this Agreement and any other instrument or agreement relating thereto to which the
City is a party;
(c) it has, on or before the date hereof, duly taken all action necessary to be taken by it
prior to such date to authorize (i) the execution, delivery and performance of this Agreement, the
Ordinance and any other instrument or agreement to which the City is a parry and which has
been or will be executed in connection with the transactions described in the foregoing
documents; and (ii) the carrying out, giving effect to, consummation and performance of the
transactions and obligations described in the foregoing agreements and by the current Offering
Memorandum;
(d) it will provide the Dealer at its address set forth below, within 190 days of the end of
each fiscal year, a link to the City's consolidated audited financial report posted on the City's
website promptly after each fiscal year's consolidated audited financial report is accepted by the
City Council, as further described in Section 4.10 of the Ordinance;
(e) it will promptly notify the Dealer by electronic means, if possible, and, if not
possible, by other communication made in writing, of any material adverse changes that may
affect the offering and sale on behalf of the City of the Commercial Paper Notes or any fact or
circumstance which may constitute, or with the passage of time will constitute, an Event of
Default under the Commercial Paper Notes, the Ordinance or the Issuing and Paying Agent
Agreement;
(f) Offering Memoranda and supplements, amendments and updates to any thereof,
furnished by the City and used by the Dealer (including amendments, supplements and
replacements thereof), until such time as they shall have been subsequently amended, updated or
replaced, shall not contain any untrue, incorrect or misleading statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not misleading;
(g) it will provide to the Dealer within two (2) Business Days of the execution of any
credit or liquidity facility agreement related to the Commercial Paper Notes or amendment
thereto, including any extension of any such facility, a copy of such executed agreement or
amendment;
6
(h) the Commercial Paper Notes are not required to be registered under the Securities
Act of 1933, as amended, and no indenture in respect of the Commercial Paper Notes is required
to be qualified under the Trust Indenture Act of 1939, as amended;
(i) no consent or action of, or filing or registration with, any governmental or public
regulatory body or authority, including the United States Securities and Exchange Commission,
is required to authorize, or is otherwise required in connection with the execution, delivery or
performance of, this Agreement, the Commercial Paper Notes or the Issuing and Paying Agent
Agreement, except as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Commercial Paper Notes; and
0) each issuance of Commercial Paper Notes by the City hereunder (including each
"rollover" of the Commercial Paper Notes) shall be deemed a representation and warranty by the
City to the Dealer, as of the date thereof, that, after giving effect to such issuance, (i) the
representations and warranties given by the City set forth above in this Section 11 remain true
and correct on and as of such date as if made on and as of such date, (ii) the Commercial Paper
Notes being issued on such date have been duly authorized and when issued as provided in the
Issuing and Paying Agent Agreement and the Ordinance will constitute legal, valid and binding
obligations of the City, enforceable against the City in accordance with their terms, subject to
principles of governmental immunity of political subdivisions and to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law), (iii) since the date of the then current Offering Memorandum, there has been no
material adverse change in the condition (financial or otherwise), operations or business
prospects of the City that has not been disclosed to the Dealer in writing and (iv) the City is not
in default with respect to any of its obligations hereunder or under the Commercial Paper Notes,
the Issuing and Paying Agent Agreement or the Ordinance.
Section 12. Term of Agreement. This Agreement shall become effective on the date
hereof and shall continue in full force and effect until the Maximum Maturity Date, as defined in
the Ordinance, subject to the right of suspension and termination as provided herein. This
Agreement may be terminated by either party upon ninety (90) days written notice; provided,
however, an early termination of this Agreement by either party shall not be effective until (a) a
successor Dealer has been appointed by the City and such appointment has been accepted by
such successor, and (b) notice has been given to the Holders of the Commercial Paper Notes, the
Issuing and Paying Agent and any rating agency then issuing a rating on the Commercial Paper
Notes of the appointment of the successor Dealer. If the ninety (90) day notice period expires
and no successor has been appointed, the Dealer, at the expense of the City, has the right to
petition a court of competent jurisdiction to appoint a successor under this Agreement. Further,
the Dealer and the City agree that the effective date of an early termination of this Agreement
shall not occur at any time that would disrupt, delay or otherwise adversely affect the payment of
the Commercial Paper Notes. The foregoing notwithstanding, the Dealer may be removed at any
time, at the direction of the City, upon seven (7) days' prior written notice to the Dealer and the
Issuing and Paying Agent, subject to the requirement that a successor Dealer be appointed by the
City promptly after removing the Dealer.
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Section 13. Dealing in Commercial Paper Notes by the Dealer; No Obligation to
Purchase Commercial Paper Notes. (a) The Dealer, in its individual capacity, may in good
faith buy, sell, own, hold and deal in any of the Commercial Paper Notes, including, without
limitation, any Commercial Paper Notes offered and sold by the Dealer pursuant to this
Agreement, and may join in any action which any Holder may be entitled to take with like effect
as if it did not act in any capacity hereunder. The Dealer, in its individual capacity, either as
principal or agent, may also engage in or be interested in any financial or other transaction with
the City and may act as depositary, account party, or agent for any committee or body of owners
of the Commercial Paper Notes or other obligations of the City as freely as if it did not act in any
capacity hereunder.
(b) Nothing in this Agreement shall be deemed to constitute the Dealer an underwriter of
the Commercial Paper Notes or to obligate the Dealer to purchase any Commercial Paper Notes
for its own account at any time.
Section 14. Miscellaneous. (a) Except as otherwise specifically provided in this
Agreement, all notices, demands and formal actions under this Agreement shall be in writing and
either (i) hand-delivered, (ii) sent by electronic means, or (iii) mailed by registered or certified
mail, return receipt requested, postage prepaid, to:
The Dealer:
Loop Capital Markets LLC
Short Term Underwriting Desk
111 West Jackson Blvd., Suite 1901
Chicago, Illinois 60604
Attention: Anna Hsu
Telephone: (312) 356-5890
E-Mail: anna.hsu@loopcapital.com
The City:
City of Fort Worth, Texas
200 Texas Avenue, Third Floor
Fort Worth, Texas 76102
Attention: Chief Financial Officer/Director of Financial
Management Services
Telephone: (817) 392-8500
Fax: (817) 392-8966
E-Mail: reginald.zeno@fortworthtexas.gov
The Issuing and Paying Agent:
U.S. Bank Trust Company,National Association
100 Wall Street, Suite 1600
New York,New York 10005
Attention: Corporate Trust Services
8
Telephone: (212) 951-8512
Fax: (212) 361-6153
E-Mail: mmi.processing@usbank.com
Each party hereto may, by notice given under this Agreement to the other parties
described above, designate other addresses to which subsequent notices, requests, reports or
other communications shall be directed.
(b) This Agreement shall inure to the benefit of and be binding only upon the parties
hereto and their respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of any of the Commercial Paper Notes merely because of such
purchase. No owner of the Commercial Paper Notes or other third party shall, by reason of such
ownership, have any rights or privileges hereunder.
(c) All of the representations and warranties of the City and the Dealer in this Agreement
shall remain operative and in full force and effect, regardless of(i) any investigation made by or
on behalf of the Dealer or the City, (ii) the offering and sale of and any payment for any
Commercial Paper Notes hereunder, or (iii) suspension, termination or cancellation of this
Agreement.
(d) This Agreement constitutes the entire agreement between the parties hereto with
respect to the matters covered hereby, and supersedes all prior agreements and understandings
between the parties.
(e) This Agreement and each provision hereof may be amended, changed, waived,
discharged or terminated only by an instrument in writing signed by the parties hereto.
(e) Nothing herein shall be construed to make any party an employee of the other or to
establish any fiduciary relationship between the parties except as expressly provided herein.
(f) If any provision of this Agreement shall be held or deemed to be or shall, in fact, be
invalid, inoperative or unenforceable for any reason, such circumstances shall not have the effect
of rendering any other provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatsoever.
(g) This Agreement shall be governed by and construed in accordance with the laws of
the State of Texas except that the duties and obligations of the Dealer shall be governed by the
laws of the State of New York. Each party hereto irrevocably waives, if and to the extent
permitted by applicable law, any and all right to a trial by jury in any action, suit or legal
proceedings arising out of or relating to this Agreement or the transactions contemplated hereby.
(h) This Agreement may be executed in several counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same document. Delivery of
an executed counterpart of a signature page of this Agreement by telecopy or other electronic
imaging means shall be effective as delivery of a manually executed counterpart of this
Agreement.
9
Section 15. Relationship of Parties. The City acknowledges and agrees that (i) the
offer and sale of the Commercial Paper Notes pursuant to this Agreement is an arm's length
commercial transaction between the City and the Dealer, (ii) in connection with such transaction,
the Dealer is acting solely as a principal and not as a fiduciary of or financial advisor to the City,
(iii) the Dealer is not acting as a Municipal Advisor (as defined in Section 17B of the Securities
Exchange Act of 1934, as amended), (iv) the Dealer has not assumed a fiduciary responsibility in
favor of the City with respect to the offer or sale of the Commercial Paper Notes or the process
leading thereto (whether the Dealer, or any affiliate of the Dealer, has advised or is currently
advising the City on other matters) or any other obligation to the City except the obligations
expressly set forth in this Agreement, (v) the Dealer has financial and other interests that differ
from those of the City, (vi) the City has consulted with its own legal and financial advisors to the
extent it deemed appropriate in connection with the offer and sale of the Commercial Paper
Notes and (vii) the only obligations the Dealer has to the City with respect to the transactions
contemplated hereby are expressly set forth in this Agreement.
The City further acknowledges that the Dealer may not be able to perform some of the
services the City may request of the Dealer from time to time in connection with the Dealer's
engagement as a dealer of the Commercial Paper Notes to the extent that such services would
cause the Dealer to be considered a "municipal advisor" under SEC Rel.No. 34-70462 (Sept. 20,
2013) implementing Section 975 of the Dodd Frank Wall Street Reform and Consumer
Protection Act.
Section 16. No Israel Boycott. To the extent this Agreement constitutes an agreement
for the provision of goods and services, pursuant to Section 2270.002, Texas Government Code,
the Dealer hereby represents that as a "Company", as defined in Section 808.001, Texas
Government Code, the Dealer, or any wholly owned subsidiary, majority-owned subsidiary,
parent company or affiliate of the Dealer, does not Boycott Israel and, subject to or as otherwise
required by applicable Federal law, including, without limitation, 50 U.S.C. Section 4607, the
Dealer, as a"Company", as defined in Section 808.001, Texas Government Code, or any wholly
owned subsidiary, majority-owned subsidiary, parent company or affiliate of the Dealer, agrees
not to Boycott Israel during the term of this Agreement. For purposes of this Section, "Boycott
Israel" shall have the meaning given such term in Section 2270.001, Texas Government Code.
Section 17. Foreign Terrorist Organization. For purposes of Subchapter F of Chapter
2252 of the Texas Government Code, at the time of execution of this Agreement, the Dealer
hereby represents and warrants that as a "Company", as defined in Sections 806.001 and
807.001, Texas Government Code, Dealer, or any wholly owned subsidiary, majority-owned
subsidiary, parent company or affiliate of Dealer, (i) does not engage in business with Iran,
Sudan or any foreign terrorist organization as described in Chapters 806 or 805 of the Texas
Government Code, or Subchapter F of Chapter 2252 of the Texas Government Code, and (ii) is
not a company listed by the Texas Comptroller of Public Accounts under Sections 806.051,
807.051 or 2252.153 of the Texas Government Code. The term "foreign terrorist organization"
shall have the meaning given such term in Section 2252.151, Texas Government Code.
Section 18. Chapter 2274, Texas Government Code (No Discrimination Against
Fossil-Fuel Companies). To the extent this Agreement constitutes a contract for goods or
services for which a written verification is required under Section 2274.002 (as added by Senate
10
Bill 13 in the 87th Texas Legislature, Regular Session), Texas Government Code, as amended,
the Dealer hereby verifies that it and its parent company, wholly- or majority-owned
subsidiaries, and other affiliates, if any, do not boycott energy companies and will not boycott
energy companies during the term of this Agreement. The foregoing verification is made solely
to enable the City to comply with such Section and to the extent such Section does not
contravene applicable Texas or federal law. As used in the foregoing verification, "boycott
energy companies" shall mean, without an ordinary business purpose, refusing to deal with,
terminating business activities with, or otherwise taking any action that is intended to penalize,
inflict economic harm on, or limit commercial relations with a company because the company
(A) engages in the exploration, production, utilization, transportation, sale, or manufacturing of
fossil fuel-based energy and does not commit or pledge to meet environmental standards beyond
applicable federal and state law; or (B) does business with a company described by (A) above.
As used in this Section, the Dealer understands "affiliate" to mean an entity that controls, is
controlled by, or is under common control with the Dealer within the meaning of SEC Rule
133(f), 17 C.F.R. § 230.133(f), and exists to make a profit.
Section 19. Chapter 2274, Texas Government Code (No Discrimination Against
Firearm Entities and Firearm Trade Associations). To the extent this Agreement constitutes
a contract for goods or services for which a written verification is required under Section
2274.002 (as added by Senate Bill 19 in the 87th Texas Legislature, Regular Session), Texas
Government Code, as amended, the Dealer hereby verifies that it and its parent company,
wholly- or majority-owned subsidiaries, and other affiliates, if any, do not have a practice,
policy, guidance, or directive that discriminates against a firearm entity or firearm trade
association and will not discriminate during the term of this Agreement against a firearm entity
or firearm trade association. The foregoing verification is made solely to enable compliance with
such Section and to the extent such Section does not contravene applicable Texas or federal law.
As used in the foregoing verification, (a) "discriminate against a firearm entity or firearm trade
association" (A) means, with respect to the firearm entity or firearm trade association, to (i)
refuse to engage in the trade of any goods or services with the firearm entity or firearm trade
association based solely on its status as a firearm entity or firearm trade association, (ii) refrain
from continuing an existing business relationship with the firearm entity or firearm trade
association based solely on its status as a firearm entity or firearm trade association, or (iii)
terminate an existing business relationship with the firearm entity or firearm trade association
based solely on its status as a firearm entity or firearm trade association and (B) does not include
(i) the established policies of a merchant, retail seller, or platform that restrict or prohibit the
listing or selling of ammunition, firearms, or firearm accessories and (ii) a company's refusal to
engage in the trade of any goods or services, decision to refrain from continuing an existing
business relationship, or decision to terminate an existing business relationship (aa) to comply
with federal, state, or local law, policy, or regulations or a directive by a regulatory agency or
(bb) for any traditional business reason that is specific to the customer or potential customer and
not based solely on an entity's or association's status as a firearm entity or firearm trade
association, (b) "firearm entity" means a manufacturer, distributor, wholesaler, supplier, or
retailer of firearms (i.e., weapons that expel projectiles by the action of explosive or expanding
gases), firearm accessories (i.e., devices specifically designed or adapted to enable an individual
to wear, carry, store, or mount a firearm on the individual or on a conveyance and items used in
conjunction with or mounted on a firearm that are not essential to the basic function of the
11
firearm, including detachable firearm magazines), or ammunition (i.e., a loaded cartridge case,
primer, bullet, or propellant powder with or without a projectile) or a sport shooting range (as
defined by Section 250.001, Texas Local Government Code), and (c) "firearm trade association"
means a person, corporation, unincorporated association, federation, business league, or business
organization that (i) is not organized or operated for profit (and none of the net earnings of which
inures to the benefit of any private shareholder or individual), (ii) has two or more firearm
entities as members, and (iii) is exempt from federal income taxation under Section 501(a),
Internal Revenue Code of 1986, as an organization described by Section 501(c) of that code. As
used in this Section, the Dealer understands "affiliate" to mean an entity that controls, is
controlled by, or is under common control with the Dealer within the meaning of SEC Rule
133(f), 17 C.F.R. § 230.133(f), and exists to make a profit.
20. Attorney General Standing Letter. The Dealer represents that it has on file with
the Texas Attorney General a standing letter addressing the representations and verifications in
Sections 16 through 19 of this Agreement in a form acceptable to the Texas Attorney General. In
addition, if the Dealer or the parent company, a wholly- or majority-owned subsidiary or another
affiliate of the Dealer receives or has received a letter from the Texas Comptroller of Public
Accounts pursuant to Chapter 809, Texas Government Code seeking written verification that it
does not boycott energy companies (a "Comptroller Request Letter"), the Dealer shall promptly
notify the City and Co-Bond Counsel (if it has not already done so) and provide to the City or
Co-Bond Counsel, upon request by the City or Co-Bond Counsel, written verification to the
effect that its standing letter described in the preceding sentence remains in effect and may be
relied upon by the City and the Texas Attorney General (the `Bringdown Verification"). The
Bringdown Verification shall also confirm that the Dealer (or the parent company, a wholly- or
majority-owned subsidiary or other affiliate of the Dealer that received the Comptroller Request
Letter) intends to timely respond or has timely responded to the Comptroller Request Letter. The
Bringdown Verification may be in the form of an e-mail.
[Signature page follows.]
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
CITY OF FORT WORTH,TEXAS
By: W44
Name: David Cooke
Title: City Manager
ATTEST:
� . FO� �
By: ® , (SEAL)
Name: nette S. Goodall
Title: ty Secretary
SAS g
LOOP CAPITAL MARKETS LLC
By:
Name:
Title:
r
5
Signatzrre page Series ECP Commercial Paper Dealer Agreement
12
APPENDIX A
CERTIFICATE OF AUTHORIZED REPRESENTATIVES
We are the officers acting on behalf of the City of Fort Worth, Texas (the "City") as
specified below. We are duly authorized pursuant to the "Ordinance approving and authorizing
the issuance by the City of Fort Worth, Texas of its General Purpose Commercial Paper Notes,
Series ECP, in an aggregate principal amount at any one time outstanding not to exceed
$300,000,000 to provide interim financing to pay Project Costs for Projects and to refund
obligations issued in connection with Projects; approving and authorizing certain authorized
officers and employees to act on behalf of the City in the selling and delivery of such
Commercial Paper Notes, within the limitations and procedures specified herein; making certain
covenants and agreements in connection therewith; resolving other matters incident and related
to the issuance, sale, security and delivery of such Commercial Paper Notes, including the
appointment of an Issuing and Paying Agent and a Dealer and approval of an Issuing and Paying
Agent Agreement and a Dealer Agreement; approving the use of an Offering Memorandum in
connection with the sale from time to time of such Commercial Paper Notes; and providing an
effective date" adopted on August 23, 2022 (the "Ordinance") to act severally as an Authorized
Representative (as defined in the Ordinance) in connection with the issuance, from time to time,
by the City of commercial paper notes (the "Commercial Paper Notes") in accordance with the
Ordinance. The specimen signature of each Authorized Representative is set forth beside their
respective names.
Authorized Title Specimen Signature
Representatives
David Cooke City Manager
Reginald Zeno Chief Financial Officer 'r
Executed this day of , 2022.
A-1
Before me, on this day personally appeared the foregoing individuals, known to me to be
the officers whose true and genuine signatures were subscribed above in my presence:
Given under my hand and seal of office this Q O day of , 2022.
(Notary Seal) Notary Public
SELENA ALA
Notary Public, State of Texas
i9 +P Comm. Expires 03-31-2024
Notary ID 132422528
A-2