Res 039-2021 4A Business Park Revenue Bond 04/06/2021 RESOLUTION 39-2021
RESOLUTION APPROVING A RESOLUTION OF THE WICHITA FALLS ECONOMIC
DEVELOPMENT CORPORATION AUTHORIZING THE ISSUANCE OF THE CORPORATION'S
SALES TAX REVENUE BONDS; APPROVING A SALES TAX REMITTANCE AGGREEMENT;
AND ENACTING OTHER PROVISIONS RELATING TO THE SUBJECT
WHEREAS, Wichita Falls Economic Development Corporation (the "Corporation") is a non-
profit industrial development corporation created, existing and governed by the Development
Corporation Act, Chapters 501, 502 and 504, Texas Local Government Code, formerly Section 4A of
Article 5190.6,Tex. Rev. Civ. Stat. Ann., as amended (the "Act").
WHEREAS,there has been presented to this City Council a resolution(the "Bond Resolution")
adopted by the Board of Directors of the Corporation authorizing the issuance and sale of the
Corporation's sales tax revenue bonds for the purposes of acquiring and constructing infrastructure
improvements in the Wichita Falls Business Park including streets and water and sewer improvements
for the promotion of new and expanded business enterprises in the City(the "Project");
WHEREAS,there has been presented to the City Council, a Sales Tax Remittance Agreement
pursuant to which sales taxes collected by the City for the benefit of the Corporation pursuant to the Act
shall be transferred and deposited into a fund for the use by the Corporation in the furtherance of its
authorized powers and purposes;
WHEREAS, this City Council finds and determines that it is necessary and appropriate to
approve the Bond Resolution for the purposes hereinabove provided;Now,Therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS:
Section 1. The recitals set forth in the preamble hereof are incorporated herein and shall have
the same force and effect as if set forth in this Section.The Bond Resolution,attached hereto as Exhibit
A, is hereby approved and the issuance by the Corporation of sales tax revenue bonds in the principal
amount not to exceed $11,000,000 (the "Bonds"), for the purpose financing the Project, funding the
reserve fund requirement for the Bonds and to pay costs of issuance of the Bonds, is hereby approved;
and said Bond Resolution, the Bonds and the expenditure of funds of the Corporation in connection
therewith are hereby approved.
Section 2. The Sales Tax Remittance Agreement, attached hereto as Exhibit B is hereby
approved and the Mayor or City Manager is hereby authorized to execute and deliver such agreement.
Section 3. The Mayor, City Clerk and any other officer or employee of the City, and each of
them,shall be and they are hereby expressly authorized,empowered and directed from time to time and
at any time to do and perform all such acts and things and to execute,acknowledge and deliver on behalf
of the City all such instruments, whether or not herein mentioned, as may be necessary or desirable in
order to carry out the terms and provisions of this Resolution and the Sales Tax Remittance Agreement.
Section 4. This Resolution shall be effective immediately upon adoption.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF WICHITA
FALLS, TEXAS, this 6th day of April 2021.
.
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Mayor
City of Wichita Falls,Texas
ATTEST
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City Clerk u�` a^ 1� ';
Cityof Wichita Falls Texas "'
APPROVED AS TO LEGAL FORM:
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City Attorney
City of Wichita Falls,Texas
RESOLUTION AUTHORIZING THE ISSUANCE OF WICHITA FALLS ECONOMIC
DEVELOPMENT CORPORATION SALES TAX REVENUE BONDS; ESTABLISHING
PROCEDURES AND DELEGATING AUTHORITY FOR THE SALE AND DELIVERY OF THE
BONDS; PROVIDING FOR THE SECURITY FOR AND PAYMENT OF SAID BONDS; PROVIDING
AN EFFECTIVE DA l'E; AND ENACTING OTHER PROVISIONS RELATING TO THE SUBJECT
THE STATE OF TEXAS §
WICHITA FALLS ECONOMIC DEVELOPMENT CORPORATION §
WHEREAS, Wichita Falls Economic Development Corporation (the "Corporation") is a non-
profit industrial development corporation created, existing and governed by V.T.C.A, Local Government
Code, Title 12, Subtitle Cl, as amended(the "Act"), specifically Chapters 501, 502 and 504 thereof(the
"Act").
WHEREAS, pursuant to the authority granted in the Act, the City of Wichita Falls, Texas (the
"City") has levied a one-quarter of one percent sales and use tax for the benefit of the Corporation (the
"Sales Tax"),to be used exclusively for the purposes set forth in the Act;
WHEREAS, the Corporation is authorized by the Act to issue its revenue bonds, to be secured by
and payable from the Sales Tax,in the manner and for the purposes hereinafter provided;
WHEREAS, the Corporation may undertake projects that are found by the Board of Directors
(the"Board")of the Corporation to be required or suitable for the development,retention, or expansion of
manufacturing and industrial facilities, research and development facilities, distribution centers, regional
or national corporate headquarters facilities, and such other purposes as authorized by the Act;
WHEREAS, the Corporation established and operates the Wichita Falls Business Park for the
promotion and development of new and expanded business enterprises and for the development,
retention, and expansion of manufacturing and industrial facilities, research and development facilities,
distribution centers and national corporate headquarters facilities;
WHEREAS, this Board has found that the Wichita Falls Business Park has attracted and
continues to attract business enterprises and has further determined that it is necessary and in the best
interests of the Corporation to construct infrastructure improvements for the Wichita Falls Business Park;
WHEREAS, a portion of the proceeds of the bonds hereinafter authorized will be used for
acquiring and constructing infrastructure improvements in the Wichita Falls Business Park including
street, drainage and water and sewer improvements for the promotion of new and expanded business
enterprises in the City (the "Project"), and it is hereby found, determined and declared that the Project is
necessary and suitable for the promotion and development of new and expanded business enterprises and
is required for the development, retention, and expansion of manufacturing, research and development
facilities, distribution centers and national corporate headquarters facilities and will aid in the
accomplishment of creating and retaining primary jobs as authorized by the Act;
WHEREAS,this Board of Directors hereby finds and determines that it is a public purpose and in
the best interests of the Corporation to issue the herein proposed bonds with such information and terms
to be included in a pricing certificate (the "Pricing Certificate") to be executed by the Pricing Officer
(hereinafter designated);
WHEREAS, the bonds hereafter authorized are being issued and delivered pursuant to the Act;
and
WHEREAS, It is officially found, determined, and declared that the meeting at which this
Resolution has been adopted was open to the public and public notice of the time, place and subject
matter of the public business to be considered and acted upon at said meeting, including this Resolution,
was given,all as required by the applicable provisions of Tex.Gov't Code Ann.ch. 551;Now,Therefore
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE WICHITA FALLS
ECONOMIC DEVELOPMENT CORPORATION:
Section 1. DEFINITIONS.
(a) Unless otherwise expressly provided or unless the context clearly requires otherwise, in this
Resolution the following terms shall have the meanings specified below:
"Act" shall mean the Development Corporation Act,V.T.C.A, Local Government Code, Title 12,
Subtitle Cl, as amended,specifically Chapters 501, 502 and 504 thereof.
"Additional Parity Obligations" means bonds,notes or other obligations the Corporation reserves
the right to issue on a parity with the Parity Revenue Obligations in accordance with the terms and
conditions prescribed in Section 16 hereof.
"Board" means the Board of Directors of the Corporation.
"Bonds" means the Corporation's Bonds entitled "Wichita Falls Economic Development
Corporation Sales Tax Revenue Bonds, Series 2021"authorized to be issued by Section 2.
"Closing Date"means the date of the initial delivery of and payment for the Bonds.
"Comptroller"means the Comptroller of Public Accounts of the State of Texas and any successor
officer or official that may be charged by law with the duty of collecting Gross Sales Tax Revenues for
the account of,and remitting the same to,the City for the account of the Corporation.
"Debt Service Fund" means the interest and sinking fund established and confirmed by Section
8(a).
"Designated Financial Officer"means the President or Treasurer of the Corporation.
"Economic Development Fund" means the special fund established and confirmed by Section
8(a).
"Event of Default"means any Event of Default as defined in Section 30(a).
"Fiscal Year" means twelve months' period beginning October 1 of each year and ending
September 30 of the succeeding year.
"Gross Sales Tax Revenue Fund" means the special fund established and confirmed by Section
8(a).
"Gross Sales Tax Revenues" means all of the revenues due or owing to, or collected or received
by or on behalf of the Corporation, whether by the City or otherwise, pursuant to the Sales Tax
Remittance Agreement or this Resolution, from or by reason of the levy of the Sales Tax, less any
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amounts due or owing to the Comptroller as charges for collection or retentions by the Comptroller for
refunds and to redeem dishonored checks and drafts, to the extent such charges and retention are
authorized or required by law.
"Interest Payment Date"means the date or dates upon which interest on the Bonds is scheduled to
be paid until the maturity of the Bond, such dates being set forth in the Pricing Certificate (hereinafter
defined)
"Parity Revenue Obligations"means the Bonds and Additional Parity Obligations.
"Paying Agent/Registrar" means the entity designated in the Pricing Certificate, any successor
thereto or an entity which is appointed as and assumes the duties of paying agent/registrar as provided in
this Resolution.
"Pledged Revenues" means (a)the Gross Sales Tax Revenues and(b)such other money, income,
revenues or other property which the Corporation may pledge expressly and specifically to the payment
of Parity Revenue Obligations.
"Pricing Certificate"means the Pricing Certificate described in Section 3(a).
"Project Development Fund"means the fund so designated and established by Section 8(a).
"Purchaser"means the person, firm or entity initially purchasing the Bonds from the Corporation
and which is designated in Section 26.
"Record Date" means the fifteenth day of the month next preceding an Interest Payment Date or
such other date as may be set forth in the Pricing Certificate.
"Registered Owner" means the person who is the Registered Owner of a Bond, as shown in the
Register.
"Registration Books"means the bond registration books specified in Section 4(b).
"Reserve Fund" means the reserve fund established and confirmed by Section 8(a).
"Reserve Requirement"has the meaning set forth in Section 12(a).
"Resolution"means this Resolution.
"Sales Tax"means the local sales and use tax authorized under the Act and heretofore authorized
and levied by the City within its existing boundaries, and hereafter required to be levied and collected
within any expanded areas included within the City pursuant to the Act, together with any increases in the
rate thereof if provided and authorized by applicable law.
"Sales Tax Remittance Agreement" means that certain agreement between the Corporation and
the City,bearing that name.
(b) This Resolution and all the terms and provisions hereof shall be liberally construed to
effectuate the purposes set forth herein to sustain the validity of this Resolution.
(c) Section references shall mean, unless otherwise designated, Sections of this Resolution.
Section 2. RECITALS, AMOUNT AND PURPOSE OF THE BONDS.
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(a) The recitals set forth in the preamble hereof are incorporated herein and shall have the same
force and effect as if set forth in this Section.
(b) The bonds of Wichita Falls Economic Development Corporation (the "Corporation") are
hereby authorized to be issued and delivered,in one or more series,in the aggregate principal amount not
to exceed the amount set forth below for the public purposes of (i) acquiring and constructing
infrastructure improvements in the Wichita Falls Business Park including street, drainage and water and
sewer improvements for the promotion of new and expanded business enterprises in the City (the
"Project"), (ii) funding the reserve fund requirement for the Bonds (if so provided in the Pricing
Certificate)and(iii)providing funds to pay the costs of issuance of the Bonds.
(c) Each Bond issued pursuant to this Resolution shall be designated: "WICHITA FALLS
ECONOMIC DEVELOPMENT CORPORATION SALES TAX REVENUE BOND, SERIES 2021," and
initially there shall be issued, sold, and delivered hereunder fully registered Bonds, without interest
coupons, with Bonds issued in replacement thereof being in the denominations and principal amounts
hereinafter stated and numbered consecutively from R-1 upward, payable to the respective Registered
Owners thereof(with the initial Bond being made payable to the initial purchaser as described in Section
26 hereof), or to the registered assignee or assignees of said Bonds or any portion or portions thereof(in
each case, the "Registered Owner"). The Bonds shall be in the respective denominations and principal
amounts, shall be numbered, shall mature and be payable on the date or dates in each of the years and in
the principal amounts, and shall bear interest to their respective dates of maturity or redemption prior to
maturity at the rates per annum, as set forth in the Pricing Certificate.
Section 3. DELEGATION TO PRICING OFFICER.
(a) As authorized by the Act, the President, Vice President and/or the Treasurer of the
Corporation (the "Pricing Officer") are each hereby authorized to act on behalf of the Corporation in
selling and delivering the Bonds, carrying out the other procedures specified in this Resolution,including,
determining the date of the Bonds, any additional or different designation or title by which the Bonds
shall be known,whether the Bonds shall be sold and delivered in one or more series and the date and sale
and delivery of each such series, the amount of Bonds to be issued, the price at which the Bonds will be
sold,the years in which the Bonds will mature, the principal amount to mature in each of such years,the
rate of interest to be borne by each such maturity, the interest payment and record dates, the price and
terms upon and at which the Bonds shall be subject to redemption prior to maturity at the option of the
Corporation, as well as any mandatory sinking fund redemption provisions, and approving modifications
to this Resolution and executing such instruments, documents and agreements as may be necessary with
respect thereto, and all other matters relating to the issuance, sale, and delivery of the Bonds and
obtaining municipal bond insurance or a surety reserve for all or any portion of the Bonds (including the
execution of any commitment agreements, membership agreements in mutual insurance companies, and
other similar agreements) and providing for the terms and provisions thereof applicable to the Bonds, all
of which shall be specified in the pricing certificate (the "Pricing Certificate") to be executed by the
Pricing Officer;provided that:
(i) the aggregate principal amount of the Bonds to be issued shall not exceed
$11,000,000;
(iv) the true interest cost of the Bonds shall not exceed 5.00%per annum;
(v) the net effective interest rate on the Bonds shall not exceed the maximum rate set
forth in Chapter 1204,Texas Government Code, as amended;
(vi) the final maturity of the Bonds shall not be later than September 1, 2051; and
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(vii) the delegation made hereby shall expire if not exercised by the Pricing Officer
within six(6)months of the date of adoption hereof.
(b) The Pricing Officer shall determine whether the Bonds will be sold by private placement or
negotiated or competitive sale. The term "Bonds" as used in this Resolution shall mean and include
collectively the bond initially issued and delivered pursuant to this Resolution and all definitive or
substitute bonds exchanged therefor, as well as all other substitute bonds and replacement bonds issued
pursuant hereto, and the term "Bond" shall mean any of the Bonds, unless the context clearly indicates
otherwise.
(c) In establishing the aggregate principal amount of the Bonds, the Pricing Officer shall
establish an amount not exceeding the amount authorized in Subsection (a) hereof, which shall be
sufficient in amount to provide for the purposes for which the Bonds are authorized and to pay costs of
issuing the Bonds. The Bonds shall be sold with and subject to such terms as set forth in the Pricing
Certificate. The Pricing Officer is authorized to make any other changes to this Resolution deemed
necessary by the Pricing Officer,with such changes to be set forth in the Pricing Certificate.
Section 4. CHARACTERISTICS OF THE BONDS.
(a) Appointment of Paying Agent/Registrar. The selection and appointment of the paying
agent/registrar for the Bonds (the"Paying Agent/Registrar")shall be as set forth in the Pricing Certificate.
The Pricing Officer is authorized and directed to execute and deliver in the name on behalf of the
Corporation a Paying Agent/Registrar Agreement with the Paying Agent/Registrar in substantially the
form presented at this meeting.
(b) Registration, Transfer, Conversion and Exchange. The Corporation shall keep or cause to be
kept at the corporate trust office of the Paying Agent/Registrar books or records for the registration of the
transfer, conversion and exchange of the Bonds (the "Registration Books"), and the Corporation hereby
appoints the Paying Agent/Registrar as its registrar and transfer agent to keep such books or records and
make such registrations of transfers, conversions and exchanges under such reasonable regulations as the
Corporation and Paying Agent/Registrar may prescribe; and the Paying Agent/Registrar shall make such
registrations, transfers, conversions and exchanges as herein provided within three days of presentation in
due and proper form. The Paying Agent/Registrar shall obtain and record in the Registration Books the
address of the registered owner of each Bond to which payments with respect to the Bonds shall be
mailed, as herein provided; but it shall be the duty of each registered owner to notify the Paying
Agent/Registrar in writing of the address to which payments shall be mailed, and such interest payments
shall not be mailed unless such notice has been given. The Corporation shall have the right to inspect the
Registration Books during regular business hours of the Paying Agent/Registrar, but otherwise the Paying
Agent/Registrar shall keep the Registration Books confidential and, unless otherwise required by law,
shall not permit their inspection by any other entity. The Corporation shall pay the Paying
Agent/Registrar's standard or customary fees and charges for making such registration, transfer,
conversion, exchange and delivery of a substitute Bond or Bonds. Registration of assignments, transfers,
conversions and exchanges of Bonds shall be made in the manner provided and with the effect stated in
the FORM OF BOND set forth in this Resolution. Each substitute Bond shall bear a letter and/or number
to distinguish it from each other Bond.
(c) Authentication. Except as provided in subsection (m) of this section, an authorized
representative of the Paying Agent/Registrar shall, before the delivery of any such Bond, date and
manually sign said Bond, and no such Bond shall be deemed to be issued or outstanding unless such Bond
is so executed. The Paying Agent/Registrar promptly shall cancel all paid Bonds and Bonds surrendered
for conversion and exchange. No additional ordinances, orders or resolutions need be passed or adopted
by the governing body of the Corporation or any other body or person so as to accomplish the foregoing
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conversion and exchange of any Bond or portion thereof, and the Paying Agent/Registrar shall provide for
the printing, execution and delivery of the substitute Bonds in the manner prescribed herein. Pursuant to
Subchapter D, Chapter 1201, Texas Government Code, the duty of conversion and exchange of Bonds as
aforesaid is hereby imposed upon the Paying Agent/Registrar, and, upon the execution of said Bond, the
converted and exchanged Bond shall be valid, incontestable, and enforceable in the same manner and
with the same effect as the Bonds which initially were issued and delivered pursuant to this Resolution,
approved by the Attorney General, and registered by the Comptroller of Public Accounts.
(d) Payment of Principal and Interest. The Corporation hereby further appoints the Paying
Agent/Registrar to act as the paying agent for paying the principal of and interest on the Bonds, all as
provided in this Resolution. The Paying Agent/Registrar shall keep proper records of all payments made
by the Corporation and the Paying Agent/Registrar with respect to the Bonds, and of all conversions and
exchanges of Bonds, and all replacements of Bonds, as provided in this Resolution. However, in the
event of a nonpayment of interest on a scheduled payment date, and for thirty (30)days thereafter, a new
record date for such interest payment (a "Special Record Date") will be established by the Paying
Agent/Registrar, if and when funds for the payment of such interest have been received from the
Corporation. Notice of the Special Record Date and of the scheduled payment date of the past due
interest (which shall be fifteen (15) days after the Special Record Date) shall be sent at least five (5)
business days prior to the Special Record Date by United States mail, first class postage prepaid, to the
address of each registered owner appearing on the Registration Books at the close of business on the last
business day next preceding the date of mailing of such notice.
(e) Payment to Registered Owner. Notwithstanding any other provision of this Resolution to the
contrary, the Corporation and the Paying Agent/Registrar shall be entitled to treat and consider the person
in whose name each Bond is registered in the Registration Books as the absolute owner of such Bond for
the purpose of payment of principal and interest with respect to such Bond,for the purpose of registering
transfers with respect to such Bond, and for all other purposes whatsoever. The Paying Agent/Registrar
shall pay all principal of and interest on the Bonds only to or upon the order of the registered owners, as
shown in the Registration Books as provided in this Resolution, or their respective attorneys duly
authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the
Corporation's obligations with respect to payment of principal of and interest on the Bonds to the extent
of the sum or sums so paid. No person other than a registered owner, as shown in the Registration Books,
shall receive a Bond certificate evidencing the obligation of the Corporation to make payments of
principal and interest pursuant to this Resolution.
(f) Paying Agent/Registrar. The Corporation covenants with the registered owners of the Bonds
that at all times while the Bonds are outstanding the Corporation will provide a competent and legally
qualified bank, trust company, financial institution or other agency to act as and perform the services of
Paying Agent/Registrar for the Bonds under this Resolution, and that the Paying Agent/Registrar will be
one entity. By accepting the position and performing as such, each Paying Agent/Registrar shall be
deemed to have agreed to the provisions of this Resolution, and a certified copy of this Resolution shall
be delivered to each Paying Agent/Registrar.
(g) Substitute Paying Agent/Registrar. The Corporation reserves the right to, and may, at its
option, change the Paying Agent/Registrar upon not less than one hundred twenty (120) days written
notice to the Paying Agent/Registrar, to be effective not later than sixty (60) days prior to the next
principal or interest payment date after such notice. In the event that the entity at any time acting as
Paying Agent/Registrar (or its successor by merger, acquisition, or other method) should resign or
otherwise cease to act as such, the Corporation covenants that promptly it will appoint a competent and
legally qualified bank, trust company, financial institution, or other agency to act as Paying
Agent/Registrar under this Resolution. Upon any change in the Paying Agent/Registrar, the previous
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Paying Agent/Registrar promptly shall transfer and deliver the Registration Books (or a copy thereof),
along with all other pertinent books and records relating to the Bonds, to the new Paying Agent/Registrar
designated and appointed by the Corporation. Upon any change in the Paying Agent/Registrar, the
Corporation promptly will cause a written notice thereof to be sent by the new Paying Agent/Registrar to
each registered owner of the Bonds, by United States mail, first-class postage prepaid, which notice also
shall give the address of the new Paying Agent/Registrar.
(g) Book-Entry Only System. Upon initial issuance, the ownership of the Bonds may, if so
designated by the Pricing Officer,be registered in the name of Cede &Co., as nominee of The Depository
Trust Company, New York, New York ("DTC"), pursuant to the Book-Entry Only System hereinafter
described and the provisions of Subsections (h), (i), (j) and (k) of this Section shall apply to the Bonds,
and except as provided in subsections (i), (j)and(m)of this Section, all of the outstanding Bonds shall be
registered in the name of Cede&Co., as nominee of DTC.
(h) Blanket Letter of Representations. The execution and delivery of the Blanket Letter of
Representations with respect to obligations of the Corporation is hereby approved, or, if applicable,
ratified and confirmed; and the provisions thereof shall be fully applicable to the Bonds. Notwithstanding
anything to the contrary contained herein, while the Bonds are subject to DTC's Book-Entry Only System
and to the extent permitted by law, the Letter of Representations is hereby incorporated herein and its
provisions shall prevail over any other provisions of this Resolution in the event of conflict.
(i) Bonds Registered in the Name of Cede & Co. With respect to Bonds registered in the name
of Cede & Co., as nominee of DTC, the Corporation and the Paying Agent/Registrar shall have no
responsibility or obligation to any securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations on whose behalf DTC was created ("DTC Participant") to
hold securities to facilitate the clearance and settlement of securities transactions among DTC Participants
or to any person on behalf of whom such a DTC Participant holds an interest in the Bonds. Without
limiting the immediately preceding sentence, the Corporation and the Paying Agent/Registrar shall have
no responsibility or obligation with respect to (i)the accuracy of the records of DTC, Cede & Co. or any
DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC
Participant or any other person, other than a registered owner of Bonds, as shown on the Registration
Books, of any notice with respect to the Bonds, or(iii)the payment to any DTC Participant or any other
person, other than a registered owner of Bonds, as shown in the Registration Books of any amount with
respect to principal of or interest on the Bonds. Upon delivery by DTC to the Paying Agent/Registrar of
written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co.,
and subject to the provisions in this Resolution with respect to interest checks being mailed to the
registered owner at the close of business on the Record date, the words "Cede & Co." in this Resolution
shall refer to such new nominee of DTC.
(j) Successor Securities Depository; Transfers Outside Book-Entry Only System. In the event
that the Corporation determines that DTC is incapable of discharging its responsibilities described herein
and in the representation letter of the Corporation to DTC or that it is in the best interest of the beneficial
owners of the Bonds that they be able to obtain certificated Bonds, the Corporation shall (i) appoint a
successor securities depository, qualified to act as such under Section 17A of the Securities and Exchange
Act of 1934, as amended, notify DTC and DTC Participants of the appointment of such successor
securities depository and transfer one or more separate Bonds to such successor securities depository or
(ii)notify DTC and DTC Participants of the availability through DTC of Bonds and transfer one or more
separate Bonds to DTC Participants having Bonds credited to their DTC accounts. In such event, the
Bonds shall no longer be restricted to being registered in the Registration Books in the name of Cede &
Co., as nominee of DTC, but may be registered in the name of the successor securities depository, or its
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nominee, or in whatever name or names registered owners transferring or exchanging Bonds shall
designate, in accordance with the provisions of this Resolution.
(k) Payments to Cede & Co. Notwithstanding any other provision of this Resolution to the
contrary, so long as any Bond is registered in the name of Cede & Co., as nominee of DTC, all payments
with respect to principal of and interest on such Bond and all notices with respect to such Bond shall be
made and given, respectively, in the manner provided in the representation letter of the Corporation to
DTC.
(1) General Characteristics of the Bonds. The Bonds (i) shall be issued in fully registered form,
without interest coupons, with the principal of and interest on such Bonds to be payable only to the
Registered Owners thereof, (ii)may and shall be redeemed prior to their scheduled maturities, (iii)may be
transferred and assigned, (iv) may be converted and exchanged for other Bonds, (v) shall have the
characteristics, (vi) shall be signed, sealed, executed and authenticated, (vii) the principal of and interest
on the Bonds shall be payable, and (viii) shall be administered and the Paying Agent/Registrar and the
Corporation shall have certain duties and responsibilities with respect to the Bonds, all as provided, and in
the manner and to the effect as required or indicated,in the FORM OF BOND set forth in this Resolution.
The Bonds initially issued and delivered pursuant to this Resolution is not required to be, and shall not be,
authenticated by the Paying Agent/Registrar, but on each substitute Bond issued in conversion of and
exchange for any Bond or Bonds issued under this Resolution the Paying Agent/Registrar shall execute
the Paying Agent/registrar's Authentication Bond,in the FORM OF BOND set forth in this Resolution.
(m) Cancellation of Initial Bond. On the closing date, one initial Bond representing the entire
principal amount of the Bonds, payable in stated installments to the order of the initial purchaser of the
Bonds or its designee, executed by manual or facsimile signature of the President and Secretary of the
Board, approved by the Attorney General of Texas, and registered and manually signed by the
Comptroller of Public Accounts of the State of Texas, will be delivered to such purchaser or its designee.
Upon payment for the initial Bond, the Paying Agent/Registrar shall (i) if the Bonds are sold by private
placement, insert the delivery date on the initial Bond and deliver the initial Bond to the Purchaser, with
any Bonds transferred, exchanged or substituted therefor to be registered in the name of the Registered
Owner thereof, or(ii)if the Bonds are sold by negotiated or competitive sale, the Paying Agent/Registrar
shall cancel the initial Bond and insert the delivery date on Bond No. T-1, cancel the initial Bond and
deliver to DTC on behalf of such purchaser one registered definitive Bond for each year of maturity of the
Bonds, in the aggregate principal amount of all of the Bonds for such maturity, registered in the name of
Cede & Co., as nominee of DTC. To the extent that the Paying Agent/Registrar is eligible to participate
in DTC's FAST System, the Paying Agent/Registrar shall hold the definitive Bonds in safekeeping for
DTC deliver to DTC on behalf of such purchaser one registered definitive Bond for each year of maturity
of the Bonds,in the aggregate principal amount of all of the Bonds for such maturity.
Section 5. FORM OF BOND. The form of the Bonds, including the form of Paying
Agent/Registrar's Authentication Certificate, the form of Assignment and the form of Registration
Certificate of the Comptroller of Public Accounts of the State of Texas to be attached to the Bond initially
issued and delivered pursuant to this Resolution, shall be, respectively, substantially as follows,with such
appropriate variations, omissions or insertions as are permitted or required by this Resolution and the
Pricing Certificate.
(a) Form of Bond.
NO.R- PRINCIPAL
LINT lED STA l'ES OF AMERICA
STATE OF TEXAS AMOUNT
WICHITA FALLS ECONOMIC DEVELOPMENT CORPORATION
8
SALES TAX REVENUE BOND
SERIES 2021
Interest Rate Dated/Delivery Date Maturity Date CUSIP No.
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
WICHITA FALLS ECONOMIC DEVELOPMENT CORPORATION(the "Corporation"), being
a nonstock, nonprofit industrial development corporation created, existing and governed by V.T.C.A,
Local Government Code, Title 12, Subtitle Cl, as amended (the "Act"), specifically Chapters 501, 502
and 504 thereof(the "Act"), and acting on behalf of the City of Wichita Falls, Texas (the "City"), for
value received, promises to pay, from the sources described herein, to the Registered Owner specified
above, or registered assigns (hereinafter called the "Registered Owner"), on the Maturity Date specified
above, the Principal Amount specified above. The Corporation promises to pay interest on the unpaid
principal amount hereof (calculated on the basis of a 360-day year of twelve 30-day months) from
_at the Interest Rate per annum specified above. Interest is payable on and
semiannually on each and thereafter to the Maturity Date specified above,
or the date of redemption prior to maturity; except, if this Bond is required to be authenticated and the
date of its authentication is later than the first Record Date (hereinafter defined), such Principal Amount
shall bear interest from the interest payment date next preceding the date of authentication, unless such
date of authentication is after any Record Date but on or before the next following interest payment date,
in which case such principal amount shall bear interest from such next following interest payment date;
provided, however, that if on the date of authentication hereof the interest on the Bond or Bonds, if any,
for which this Bond is being exchanged is due but has not been paid, then this Bond shall bear interest
from the date to which such interest has been paid in full.
THE PRINCIPAL OF AND INTEREST ON this Bond are payable in lawful money of the United
States of America,without exchange or collection charges. The principal of this Bond shall be paid to the
registered owner hereof upon presentation and surrender of this Bond at maturity, or upon the date fixed
for its redemption prior to maturity, at the principal corporate trust office of , Dallas,
Texas, which is the "Paying Agent/Registrar" for this Bond. The payment of interest on this Bond shall
be made by the Paying Agent/Registrar to the registered owner hereof on each interest payment date by
check or draft, dated as of such interest payment date, drawn by the Paying Agent/Registrar on, and
payable solely from, funds of the Corporation required by the resolution authorizing the issuance of this
Bond (the "Bond Resolution") to be on deposit with the Paying Agent/Registrar for such purpose as
hereinafter provided; and such check or draft shall be sent by the Paying Agent/Registrar by United States
mail, first-class postage prepaid, on each such interest payment date, to the registered owner hereof, at its
address as it appeared on the _ day of the month preceding each such date (the "Record
Date") on the Registration Books kept by the Paying Agent/Registrar, as hereinafter described. In
addition, interest may be paid by such other method, acceptable to the Paying Agent/Registrar, requested
by, and at the risk and expense of, the registered owner. In the event of a non-payment of interest on a
scheduled payment date, and for 30 days thereafter, a new record date for such interest payment (a
"Special Record Date") will be established by the Paying Agent/Registrar, if and when funds for the
payment of such interest have been received from the Corporation. Notice of the Special Record Date
and of the scheduled payment date of the past due interest (which shall be 15 days after the Special
Record Date) shall be sent at least five business days prior to the Special Record Date by United States
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mail, first-class postage prepaid, to the address of each owner of a Bond appearing on the Registration
Books at the close of business on the last business day next preceding the date of mailing of such notice.
ANY ACCRUED INl'EREST due at maturity or upon the redemption of this Bond prior to
maturity as provided herein shall be paid to the registered owner upon presentation and surrender of this
Bond for redemption and payment at the principal corporate trust office of the Paying Agent/Registrar.
The Corporation covenants with the registered owner of this Bond that on or before each principal
payment date, interest payment date, and accrued interest payment date for this Bond it will make
available to the Paying Agent/Registrar, from the "Debt Service Fund" created by the Bond Resolution,
the amounts required to provide for the payment, in immediately available funds, of all principal of and
interest on the Bonds,when due.
IF THE DATE for the payment of the principal of or interest on this Bond shall be a Saturday,
Sunday, a legal holiday or a day on which banking institutions in the city where the principal corporate
trust office of the Paying Agent/Registrar is located are authorized by law or executive order to close,
then the date for such payment shall be the next succeeding day that is not such a Saturday, Sunday, legal
holiday or day on which banking institutions are authorized to close; and payment on such date shall have
the same force and effect as if made on the original date payment was due.
THIS BOND is one of a series of Bonds dated , authorized in accordance with the
Constitution and laws of the State of Texas in the principal amount of $ for the public
purposes of(i)acquiring and constructing infrastructure improvements in the Wichita Falls Business Park
including street, drainage and water and sewer improvements for the promotion of new and expanded
business enterprises in the City(the "Project"), (ii)funding the reserve fund for the Bonds (if so provided
in the Pricing Certificate)and(iii)providing funds to pay the costs of issuance of the Bonds.
ON , or on any date thereafter, the Bonds of this series may be redeemed prior to
their scheduled maturities, at the option of the Corporation, with funds derived from any available and
lawful source, as a whole, or in part, and, if in part, the particular Bonds, or portions thereof, to be
redeemed shall be selected and designated by the Corporation(provided that a portion of a Bond may be
redeemed only in an integral multiple of$5,000), at a redemption price equal to the principal amount to
be redeemed plus accrued interest to the date fixed for redemption.
THE BONDS SCHEDULED TO MATURE on in the years and (the
"Term Bonds") are subject to scheduled mandatory redemption by the Paying Agent/Registrar by lot, or
by any other customary method that results in a random selection, at a price equal to the principal amount
thereof, plus accrued interest to the redemption date, out of moneys available for such purpose in the
interest and sinking fund for the Bonds, on the dates and in the respective principal amounts, set forth in
the following schedule:
Term Bond Term Bond
Maturity: , Maturity:
Principal Principal
Mandatory Redemption Date Amount Mandatory Redemption Date Amount
(maturity) (maturity)
The principal amount of Term Bonds of a stated maturity required to be redeemed on any mandatory
redemption date pursuant to the operation of the mandatory sinking fund redemption provisions shall be
reduced, at the option of the Corporation, by the principal amount of any Term Bonds of the same
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maturity which, at least forty-five (45) days prior to a mandatory redemption date (1) shall have been
acquired by the Corporation at a price not exceeding the principal amount of such Term Bonds plus
accrued interest to the date of purchase thereof, and delivered to the Paying Agent/Registrar for
cancellation, (2) shall have been purchased and canceled by the Paying Agent/Registrar at the request of
the Corporation at a price not exceeding the principal amount of such Term Bonds plus accrued interest to
the date of purchase, or(3) shall have been redeemed pursuant to the optional redemption provisions and
not theretofore credited against a mandatory redemption requirement.
AT LEAST THIRTY (30) days prior to the date fixed for any redemption of Bonds or portions
thereof prior to maturity a written notice of such redemption shall be sent by the Paying Agent/Registrar
by United States mail, first-class postage prepaid, at least thirty (30) days prior to the date fixed for any
such redemption, to the registered owner of each Bond to be redeemed at its address as it appeared on the
45th day prior to such redemption date; provided, however, that the failure of the registered owner to
receive such notice, or any defect therein or in the sending or mailing thereof, shall not affect the validity
or effectiveness of the proceedings for the redemption of any Bond. By the date fixed for any such
redemption due provision shall be made with the Paying Agent/Registrar for the payment of the required
redemption price for the Bonds or portions thereof that are to be so redeemed. If such written notice of
redemption is sent and if due provision for such payment is made, all as provided above, the Bonds or
portions thereof that are to be so redeemed thereby automatically shall be treated as redeemed prior to
their scheduled maturities, and they shall not bear interest after the date fixed for redemption, and they
shall not be regarded as being outstanding except for the right of the registered owner to receive the
redemption price from the Paying Agent/Registrar out of the funds provided for such payment. If a
portion of any Bond shall be redeemed, a substitute Bond or Bonds having the same maturity date,
bearing interest at the same rate, in any denomination or denominations in any integral multiple of
$5,000, at the written request of the registered owner, and in aggregate principal amount equal to the
unredeemed portion thereof, will be issued to the registered owner upon the surrender thereof for
cancellation, at the expense of the Corporation,all as provided in the Bond Resolution.
WITH RESPECT TO ANY OPTIONAL REDEMPTION OF THE BONDS, unless certain
prerequisites to such redemption required by this Resolution have been met and moneys sufficient to pay
the principal of and premium, if any, and interest on the Bonds to be redeemed shall have been received
by the Paying Agent/Registrar prior to the giving of such notice of redemption, such notice shall state that
said redemption may, at the option of the Corporation, be conditional upon the satisfaction of such
prerequisites and receipt of such moneys by the Paying Agent/Registrar on or prior to the date fixed for
such redemption, or upon any prerequisite set forth in such notice of redemption. If a conditional notice of
redemption is given and such prerequisites to the redemption and sufficient moneys are not received, such
notice shall be of no force and effect, the Corporation shall not redeem such Bonds and the Paying
Agent/Registrar shall give notice,in the manner in which the notice of redemption was given,to the effect
that the Bonds have not been redeemed.
ALL BONDS OF THIS SERIES are issuable solely as fully registered bonds, without interest
coupons, in the denomination of any integral multiple of$5,000. As provided in the Bond Resolution,
this Bond may, at the request of the registered owner or the assignee or assignees hereof, be assigned,
transferred, converted into and exchanged for a like aggregate principal amount of fully registered Bonds,
without interest coupons, payable to the appropriate registered owner, assignee or assignees, as the case
may be, having the same denomination or denominations in any integral multiple of$5,000 as requested
in writing by the appropriate registered owner, assignee or assignees, as the case may be,upon surrender
of this Bond to the Paying Agent/Registrar for cancellation, all in accordance with the form and
procedures set forth in the Bond Resolution. Among other requirements for such assignment and transfer,
this Bond must be presented and surrendered to the Paying Agent/Registrar, together with proper
instruments of assignment, in form and with guarantee of signatures satisfactory to the Paying
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Agent/Registrar, evidencing assignment of this Bond or any portion or portions hereof in any integral
multiple of$5,000 to the assignee or assignees in whose name or names this Bond or any such portion or
portions hereof is or are to be registered. The form of Assignment printed or endorsed on this Bond may
be executed by the registered owner to evidence the assignment hereof, but such method is not exclusive,
and other instruments of assignment satisfactory to the Paying Agent/Registrar may be used to evidence
the assignment of this Bond or any portion or portions hereof from time to time by the registered owner.
The Paying Agent/Registrar's reasonable standard or customary fees and charges for assigning,
transferring, converting and exchanging any Bond or portion thereof will be paid by the Corporation. In
any circumstance, any taxes or governmental charges required to be paid with respect thereto shall be
paid by the one requesting such assignment, transfer, conversion or exchange, as a condition precedent to
the exercise of such privilege. The Paying Agent/Registrar shall not be required to make any such
transfer, conversion, or exchange (i) during the period commencing with the close of business on any
Record Date and ending with the opening of business on the next following principal or interest payment
date, or(ii)with respect to any Bond or any portion thereof called for redemption prior to maturity,within
forty-five(45)days prior to its redemption date.
IN THE EVENT any Paying Agent/Registrar for the Bonds is changed by the Corporation,
resigns, or otherwise ceases to act as such, the Corporation has covenanted in the Bond Resolution that it
promptly will appoint a competent and legally qualified substitute therefor, and cause written notice
thereof to be mailed to the registered owners of the Bonds.
IT IS HEREBY certified, recited, and covenanted that this Bond has been duly and validly
authorized, issued, sold, and delivered; that all acts, conditions, and things required or proper to be
performed, exist, and be done precedent to or in the authorization, issuance, and delivery of this Bond
have been performed, existed, and been done in accordance with law; that this Bond is a special
obligation of the Corporation; that neither the State of Texas, the City, nor any political corporation,
subdivision, or agency of the State of Texas, nor any member of the Board of Directors of the
Corporation, either individually or collectively, shall be obligated to pay the principal of or the interest on
this Bond and neither the faith and credit nor the taxing power(except as described below)of the State of
Texas, the City, or any other political corporation, subdivision, or agency thereof is pledged to the
payment of the principal of or the interest on this Bond; that the principal of and interest on this Bond are
secured by and, together with certain outstanding bonds of the Corporation, payable from a first lien on
and pledge of certain funds created under the Resolution and the revenues defined in the Resolution as the
"Pledged Revenues", which include the proceeds of a one-quarter of one percent sales and use tax levied
and collected for the benefit of the Corporation by the City (the "Sales Tax") pursuant to the
Development Corporation Act, Chapters 501, 502 and 504, Texas Local Government Code, as amended
(the "Act"); and that the Registered Owner hereof shall not have the right to demand payment of the
principal of or interest on this Bond from any tax proceeds, other than the Sales Tax proceeds levied for
the benefit of the Corporation by the City pursuant to the Act, or from any other source.
THE CORPORATION HAS RESERVED the right in the Bond Resolution, subject to certain
conditions set forth therein,to issue obligations or incur indebtedness from time to time in the future on a
parity with the Bonds with respect to the pledge of and lien on the Pledged Revenues which secures the
Bonds. The Corporation may also issue obligations or incur indebtedness which is secured on a junior
and subordinate lien with respect to the Pledged Revenues. The Bond Resolution further provides that the
Corporation may create a debt service reserve fund and fund it or provide for it to be funded in connection
with the issuance of any obligations or the incurrence of any indebtedness which possesses a lien on and
pledge of the Pledged Revenues on a parity with the Bonds. The Corporation has created a debt service
reserve fund for the benefit of the Bonds, as provided in the Bond Resolution.
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THE CORPORATION HAS RESERVED THE RIGHT to amend the Bond Resolution as
provided therein, and under some (but not all) circumstances amendments thereto must be approved by
the registered owners of a majority in aggregate principal amount of the outstanding Bonds.
BY BECOMING the registered owner of this Bond, the registered owner thereby acknowledges
all of the terms and provisions of the Bond Resolution, agrees to be bound by such terms and provisions,
acknowledges that the Bond Resolution is duly recorded and available for inspection in the official
minutes and records of the governing body of the Corporation, and agrees that the terms and provisions of
this Bond and the Bond Resolution constitute a contract between each registered owner hereof and the
Corporation.
IN WITNESS WHEREOF,the Corporation has caused this Bond to be signed with the manual or
facsimile signature of the President of the Board of Directors of the Corporation and countersigned with
the manual or facsimile signature of the Secretary of the Board of Directors of said Corporation, and has
caused the official seal of the Corporation to be duly impressed,or placed in facsimile,on this Bond.
Secretary,Board of Directors President,Board of Directors
(SEAL)
(b) Form of Paying Agent/Registrar's Authentication Certificate.
PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE
(To be executed if this Bond is not accompanied by an executed Registration
Certificate of the Comptroller of Public Accounts of the State of Texas)
It is hereby certified that this Bond has been issued under the provisions of the Bond Resolution
described in the text of this Bond; and that this Bond has been issued in conversion or replacement of, or
in exchange for, a Bond, Bonds, or a portion of a Bond or Bonds of a series that originally was approved
by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts of the
State of Texas.
Dated:
Paying Agent/Registrar
By:
Authorized Representative
(c) Form of Assignment.
ASSIGNMENT
(Please type or print clearly)
For value received,the undersigned hereby sells,assigns and transfers unto:
Transferee's Social Security or Taxpayer Identification Number:
Transferee's name and address,including zip code:
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the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
, attorney,to register the transfer of the within
Bond on the books kept for registration thereof,with full power of substitution in the premises.
Dated:
Signature Guaranteed:
NOTICE: Signature(s) must be guaranteed by an NOTICE: The signature above must correspond
eligible guarantor institution participating in a with the name of the Registered Owner as it
securities transfer association recognized signature appears upon the front of this Bond in every
guarantee program. particular, without alteration or enlargement or
any change whatsoever.
(d) Form of Registration Certificate of the Comptroller of Public Accounts.
COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO.
I hereby certify that there is on file and of record in my office a true and correct copy of the
opinion of the Attorney General of the State of Texas approving this Bond and that this Bond has been
registered this day by me.
Witness my signature and seal this
Comptroller of Public Accounts of the State of
Texas
(COMPTROLLER'S SEAL)
(e) Initial Bond Insertions.
(i) The initial Bond shall be in the form set forth is paragraph(a) of this Section, except
that:
A. immediately under the name of the Bond, the headings "Interest Rate" and
"Maturity Date" shall both be completed with the words "As shown below" and "CUSIP
No. " shall be deleted.
B. the first paragraph shall be deleted and the following will be inserted:
"WICHITA FALLS ECONOMIC DEVELOPMENT CORPORATION (the "Corporation"), being a
nonstock, nonprofit industrial development corporation created, existing and governed by V.T.C.A, Local
Government Code, Title 12, Subtitle Cl, as amended(the "Act"), specifically Chapters 501, 502 and 504
thereof (the "Act"), and acting on behalf of the City of Wichita Falls, Texas (the "City"), for value
received, promises to pay to the Registered Owner specified above, or registered assigns (hereinafter
called the "Registered Owner"), on in each of the years, in the principal
installments and bearing interest at the per annum rates set forth in the following schedule:
Principal
Years Installments Interest Rates
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(Information from Section 3 to be inserted)
The Corporation promises to pay interest on the unpaid principal amount hereof(calculated on the basis
of a 360-day year of twelve 30-day months)from , at the respective Interest Rate
per annum specified above. Interest is payable on , and semiannually on each
and thereafter to the date of payment of the principal installment
specified above, or the date of redemption prior to maturity; except, that if this Bond is required to be
authenticated and the date of its authentication is later than the first Record Date (hereinafter defined),
such Principal Amount shall bear interest from the interest payment date next preceding the date of
authentication, unless such date of authentication is after any Record Date but on or before the next
following interest payment date, in which case such principal amount shall bear interest from such next
following interest payment date; provided, however, that if on the date of authentication hereof the
interest on the Bond or Bonds, if any, for which this Bond is being exchanged is due but has not been
paid,then this Bond shall bear interest from the date to which such interest has been paid in full."
C. The Initial Bond shall be numbered"T-1."
Section 6. CONFIRMATION OF LEVY OF SALES TAX.
(a) The Corporation hereby confirms the earlier levy by the City of the Sales Tax at the rate
voted at the election held by and within the City of January 18, 1997, and the Corporation hereby
warrants and represents that the City has duly and lawfully ordered the imposition and collection of the
Sales Tax upon all sales,uses and transactions as are permitted by and described in the Act throughout the
boundaries of the City as such boundaries existed on the date of said election and as they may be
expanded from time to time.
(b) For so long as any Parity Revenue Obligations are outstanding, the Corporation covenants,
agrees and warrants to take and pursue all action permissible under applicable law to cause the Sales Tax,
at said rate or at a higher rate if permitted by applicable law, to be levied and collected continuously, in
the manner and to the maximum extent permitted by applicable law, and to cause no reduction, abatement
or exemption in the Sales Tax or rate of tax below the rate stated, confirmed and ordered in Subsection(a)
of this Section to be ordered or permitted so long as any Parity Revenue Obligations shall remain
outstanding.
(c) If the City shall be authorized hereafter by applicable law to apply, impose and levy the Sales
Tax on any taxable items or transactions that are not subject to the Sales Tax on the date of the adoption
hereof, the Corporation, to the extent it legally may do so, hereby covenants and agrees to use its best
efforts to cause the City to take such action as may be required by applicable law to subject such taxable
items or transactions to the Sales Tax.
(d) The Corporation agrees to take and pursue all action permissible under applicable law to
cause the Sales Tax to be collected and remitted and deposited as herein required and as required by the
Act, at the earliest and most frequent times permitted by applicable law.
(e) The Corporation agrees and covenants at all times, and to use its best efforts to cause the
City,to comply with the Sales Tax Remittance Agreement.
Section 7. PLEDGE.
(a) The Pledged Revenues (with the exception of those in excess of the amounts required to
establish and maintain the Funds as hereinafter provided) are hereby pledged for the payment of the
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principal of and interest on all Parity Revenue Obligations which are or may be outstanding from time to
time, including the establishment and maintenance of the Reserve Fund hereinafter provided.
(b) The provisions, covenants, pledge and lien on and against the Pledged Revenues, as herein
set forth, are established and shall be for the equal benefit, protection and security of the Registered
Owners of the Parity Revenue Obligations without distinction as to priority and rights; and such lien shall
be valid and binding without any further action by the Corporation and without any filing or recording
with respect thereto other than in the records of the Corporation.
(c) The Parity Revenue Obligations, including interest payable thereon, shall constitute special,
limited obligations of the Corporation, payable solely from, and secured by a pledge of and lien on, the
Pledged Revenues as provided in this Resolution and not from any other revenues, properties or income
of the Corporation. Parity Revenue Obligations shall not constitute debts or obligations of the State or of
the City or any other political subdivision of the State, and the Registered Owners of the Parity Revenue
Obligations shall never have the right to demand payment out of any funds raised or to be raised by ad
valorem taxation.
(d) Article 1208, Government Code, applies to the issuance of the Bonds and the pledge of the
Pledged Revenues granted by the Corporation under this Section, and is therefore valid, effective, and
perfected. Should Texas law be amended at any time while the Bonds are outstanding and unpaid, the
result of such amendment being that the pledge of the taxes granted by the Corporation under this Section
is to be subject to the filing requirements of Chapter 9, Business & Commerce Code, in order to preserve
to the Registered Owners of the Bonds a security interest in said pledge, the Corporation agrees to take
such measures as it determines are reasonable and necessary under Texas law to comply with the
applicable provisions of Chapter 9, Business & Commerce Code and enable a filing of a security interest
in said pledge to occur.
Section 8. CREATION OF FUNDS.
(a) The Corporation hereby confirms the establishment of the following funds:
(i) Project Development Fund;
(ii) Economic Development Fund;
(iii) Gross Sales Tax Revenue Fund;
(iv) Debt Service Fund;
(v) Reserve Fund; and
(vi)Rebate Fund.
(b) The establishment of the Project Development Fund is hereby approved and shall be
maintained for the purpose, and moneys on deposit therein shall be used for, paying costs of projects for
which Parity Revenue Obligations from time to time are issued. The Project Development Fund at all
times shall be free of any lien, pledge or trust created by this Resolution and the resolution or resolutions
authorizing Additional Parity Revenue Obligations.
(c) The establishment of the Economic Development Fund is hereby approved and shall be
maintained as a fund of the Corporation to be used for the lawful purposes of the Corporation;
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(d) The establishment of the Gross Sales Tax Revenue Fund is hereby approved and shall be
maintained as a special fund or account within the Economic Development Fund comprised of the Gross
Sales Tax Revenues, together with all other revenues as from time to time may be determined for deposit
therein by the Corporation, and shall be maintained for the benefit of the Registered Owners of the Parity
Revenue Obligations, subject to the further provisions of this Resolution including the payment
requirements of the Prior Lien Obligation.
(e) The establishment of the Debt Service Fund is hereby approved and shall be maintained for
the benefit of the Registered Owners of the Parity Revenue Obligations. Money deposited in the Debt
Service Fund shall be used to pay the principal of and interest on the Parity Revenue Obligations when
and as the same shall become due and payable.
(f) The establishment of the Reserve Fund is hereby approved and shall be maintained for the
benefit of the Registered Owners of the Parity Revenue Obligations. Money deposited in the Reserve
Fund shall be used to pay principal of and/or interest on Parity Revenue Obligations becoming due and
payable when there is not sufficient money available in the Debt Service Fund for such purpose.
Section 9. INITIAL DEPOSITS. On the Closing Date, the Corporation shall cause the proceeds
of the Bond to be applied as follows:
(i)the amount necessary to pay the costs of the Project shall be deposited to the credit
of a separate account within the Project Development Fund to be entitled "Series 2021 Project
Development Account," to be used for funding the Project;
(ii) The amount required to fund the Reserve Requirement attributable to the Bonds shall
be deposited into the Reserve Fund, if so prescribed in the Pricing Certificate;
(iii) the amount necessary to pay costs of issuance of the Bonds shall be disbursed for
such purpose; and
(iv) any proceeds of the Bonds not required for the purposes for which the Bonds are
issued shall be deposited to the Debt Service Fund.
Section 10. GROSS SALES TAX REVENUE FUND.
(a) All Gross Sales Tax Revenues shall be deposited and transferred as received to the Gross
Sales Tax Revenue Fund.
(b) Moneys deposited in the Gross Sales Tax Revenue Fund shall be pledged and appropriated to
the following uses,in the order of priority shown:
(i) To the payment, without priority, of the amounts required to be deposited in the Debt
Service Fund for the payment of Parity Revenue Obligations;
(ii) To the payment of the amounts required to be deposited in the Reserve Fund
pursuant to this Resolution or any resolution relating to the issuance of Parity Revenue
Obligations;
(iii) To any other fund or account required by any resolution authorizing Parity Revenue
Obligations,the amounts required to be deposited therein;
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(iv) To any fund or account, or to any payee, required by any other resolution of the
Board which authorizes the issuance of obligations or the creation of debt of the Corporation
having a lien on the Pledged Revenues subordinate to the lien and pledge created herein with
respect to the Parity Revenue Obligations; and
(v) To any other purpose now or hereafter permitted by law.
Section 11. DEBT SERVICE FUND.
(a) The Corporation hereby covenants and agrees to make deposits to the Debt Service Fund
from moneys in the Gross Sales Tax Revenue Fund to pay the principal of and interest on the Parity
Revenue Obligations as follows:
(i) Such amounts, on deposit and received following the Closing Date, as will be
sufficient, together with other amounts, if any, then on hand in the Debt Service Fund and
available for such purpose, to pay the interest scheduled to accrue and become due and payable
with respect to the Parity Revenue Obligations on the next succeeding Interest Payment Date;
(ii) Such amounts, on deposit and received following the Closing Date, as will be
sufficient,together with other amounts,if any, on hand in the Debt Service Fund and available for
such purpose, to pay the principal scheduled to mature and come due on the Parity Revenue
Obligations on the next succeeding Interest Payment Date on which principal of the Bonds are to
be payable.
(b) The deposits to the Debt Service Fund for the payment of principal of and interest on the
Parity Revenue Obligations shall continue to be made as hereinabove provided until such time as (i) the
total amount on deposit in the Debt Service Fund and Reserve Fund is equal to the amount required to pay
all outstanding obligations (principal and/or interest) for which said Fund was created and established to
pay or (ii) the Parity Revenue Obligations are no longer outstanding, i.e., fully paid as to principal and
interest or all of the Parity Revenue Obligations have been refunded.
Section 12. RESERVE FUND.
(a) The Corporation hereby covenants and agrees with the holders of the Parity Revenue
Obligations to accumulate and maintain in the Reserve Fund an amount (the "Reserve Requirement")
equal to the lesser of(i) the average annual principal and interest requirements of the Parity Revenue
Obligations to be outstanding after the issuance or incurring of such Additional Parity Obligations,
calculated on a Fiscal Year basis as of the date the Additional Parity Obligations are issued or incurred or
(ii) an amount in a reasonably required reserve fund that can be invested without restriction as to yield
pursuant to Subsection (d) of Section 148 of the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder.
(b) Immediately following the delivery of each issue or series of Additional Parity Obligations,
the Corporation shall cause the Reserve Requirement to be calculated after giving effect to the issuance of
such Additional Parity Obligations. Any additional amount required to be deposited in the Reserve Fund
shall be accumulated therein within five (5) calendar years of the delivery date of such Additional Parity
Obligations. Should the amount on deposit in the Reserve Fund be reduced below the sum required to be
maintained in said Fund, payments to said Fund shall be made from the first Pledged Revenues available
for such purpose, until the total amount then required to be on deposit in the Reserve Fund has been fully
restored. In the event money in the Reserve Fund is used for an authorized purpose while payments are
being made to said Fund, the amount required to restore the sum then required to be on deposit therein
shall be added to the payments then being made until the total amount then required to be on deposit in
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said Fund has been fully restored. Any funds on deposit in the Reserve Fund in excess of the Reserve
Requirement may, at the option of the Corporation, be withdrawn and used for any lawful purpose for
which said funds may be used.
(c) In connection with the issuance of the Bonds, the Reserve Fund shall be funded as provided
in the Pricing Certificate.
Section 13. DEFICIENCIES IN FUNDS. If the Corporation shall,for any reason,fail to pay into
the Debt Service Fund or Reserve Fund the full amounts above stipulated, amounts equivalent to such
deficiencies shall be set apart and paid into said funds from the first available Pledged Revenues of the
Corporation and such payments shall be in addition to the amounts hereinabove provided to be otherwise
paid into said funds.
Section 14. SECURITY OF FUNDS. All moneys on deposit in the funds referred to in this
Resolution shall be secured in the manner and to the fullest extent required by the laws of the State of
Texas for the security of funds of the City, and moneys on deposit in such funds shall be used only for the
purposes permitted by this Resolution.
Section 15. INVESTMENTS.
(a) Money in the funds established by this Resolution, at the option of the Corporation, may be
invested in such securities or obligations as permitted under the laws of the State of Texas applicable to
the City.
(b) Any securities or obligations in which money is so invested shall be sold and the proceeds of
sale shall be timely applied to the making of all payments required to be made from the fund from which
the investment was made.
Section 16. ISSUANCE OF ADDITIONAL PARITY OBLIGATIONS AUTHORIZED. In
addition to the right to issue obligations of inferior lien, the Corporation reserves the right to issue
Additional Parity Obligations which, when duly authorized and issued in compliance with law and the
terms and conditions hereinafter appearing, shall be on a parity with the Parity Revenue Obligations,
payable from and equally and ratably secured by a lien on and pledge of the Pledged Revenues; and the
Parity Revenue Obligations and Additional Parity Obligations shall in all respects be of equal dignity.
The Additional Parity Obligations may be issued in one or more installments, provided, however, that
none shall be issued unless and until the following conditions have been met:
(a) The Corporation is not then in default as to any covenant, condition or obligation prescribed
in a resolution authorizing the issuance of the outstanding Parity Revenue Obligations.
(b) Each of the funds created for the payment, security and benefit of the Parity Revenue
Obligations contains the amount of money then required to be on deposit therein or the issuance of such
Additional Parity Obligations will cure any such deficiency.
(c) The Corporation has secured from a Certified Public Accountant or
a Designated Financial Officer a certificate or report reflecting that for the Fiscal Year next preceding the
date of the proposed Additional Parity Obligations or a consecutive twelve (12) month period out of the
fifteen (15) month period next preceding the month in which the resolution authorizing the proposed
Additional Parity Obligations is adopted, the Gross Sales Tax Revenues and interest earnings thereon
were equal at least to (i) 1.25 times the average annual principal and interest requirements on all Parity
Revenue Obligations to be outstanding after the issuance of the proposed Additional Parity Obligations
and (ii) 1.10 times the maximum annual principal and interest requirements on all Parity Revenue
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Obligations to be outstanding after the issuance of the proposed Additional Parity Obligations; provided,
however, that in the event an increase in the rate of the Sales Tax becomes effective prior to the date of a
resolution authorizing the issuance of Additional Parity Obligations, such certificate or report shall
calculate the Gross Sales Tax Revenues for the calculation period as if such increased rate were in effect
during the calculation period.
(d) The Additional Parity Obligations are made to mature on March 1 or September 1 (or such
other maturity dates as may be consistent with the then outstanding bonds), either or both, of each year in
which they are scheduled to mature.
(e) The resolution authorizing the Additional Parity Obligations provides that (i) the Debt
Service Fund be augmented by amounts adequate to accumulate the sum required to pay the principal and
interest on such obligations as the same shall become due, (ii)the amount to be deposited and maintained
in the Reserve Fund shall be increased to an amount equal to the Reserve Requirement in accordance with
Section 12(b), and(iii)any deficiency in the Reserve Fund shall be remedied as provided in Section 13.
(f) Parity Revenue Obligations may be refunded upon such terms and conditions as the Board
may deem to the best interest of the Corporation; and if less than all such outstanding Parity Revenue
Obligations are refunded, the proposed refunding obligations shall be considered as "Additional Parity
Obligations" under the provisions of this Section, and the report or certificate required by paragraph (c)
shall give effect to the issuance of the proposed refunding obligations and shall not give effect to the
obligations being refunded.
Section 17. PLEDGED REVENUES.
(a) The Corporation represents and warrants that it is and will be authorized by applicable law
and by its articles of incorporation and bylaws to authorize and issue the Bonds, to adopt this Resolution
and to pledge the Pledged Revenues in the manner and to the extent provided in this Resolution, and that
the Pledged Revenues so pledged are and will be and remain free and clear of any pledge, lien, charge or
encumbrance thereon or with respect thereto prior to, or of equal rank with, the pledge and lien created in
or authorized by this Resolution except as expressly provided herein for Parity Revenue Obligations.
(b) The Bonds and the provisions of this Resolution are and will be the valid and legally
enforceable obligations of the Corporation in accordance with the terms of this Resolution, subject only to
any applicable bankruptcy or insolvency laws or to any applicable law affecting creditors rights generally.
(c) The Corporation shall at all times, to the extent permitted by applicable law, defend,preserve
and protect the pledge of the Pledged Revenues and all the rights of the Registered Owner under this
Resolution against all claims and demands of all persons whomsoever.
(d) The Corporation will take, and use its best efforts to cause the City to take, all steps
reasonably necessary and appropriate to collect all delinquencies in the collection of the Sales Tax to the
fullest extent permitted by the Act and other applicable law.
(e) While the Bonds are outstanding, the Corporation will take all legal means and actions
permissible to cause: the Sales Tax, at its current rate of 1/4 of 1%or at a higher rate if legally permitted,
to be levied and collected continuously throughout the boundaries of the City, as such boundaries may be
changed from time to time, in the manner and to the maximum extent legally permitted; and to cause no
reduction, abatement or exemption in the Sales Tax until the Bonds has been paid in full or until they are
lawfully defeased in accordance with this Resolution. If, subsequent to the issuance of the Bonds, the
City is authorized by applicable law to impose and levy the Sales Tax on any items or transactions that
are not subject to the Sales Tax on the date of adoption of this Resolution, the Corporation will use its
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best efforts to cause the City to take such action as may be required by applicable law to subject such
items or transactions to the Sales Tax.
(f) The Sales Tax Remittance Agreement between the City and the Corporation is hereby
approved and confirmed and shall remain in full force and effect in accordance with its terms.
Section 18. ACCOUNTS, PERIODICAL REPORTS AND CERTIFICATES.
(a) The Corporation shall keep or cause to be kept proper books of record and account(separate
from all other records and accounts) in which complete and correct entries shall be made of its
transactions relating to the funds and accounts established by this Resolution and which, together with all
other books and papers of the Corporation, shall at all times be subject to the inspection of, the Registered
Owner of not less than 5% in principal amount of the Parity Revenue Obligations then outstanding or
their representatives duly authorized in writing.
(b) The Corporation shall annually,within one hundred eighty (180) days after the close of each
Fiscal Year, mail or cause to be mailed to any Holder owning at least 25% of the outstanding Parity
Revenue Obligations of a single series who so requests in writing, a copy of an annual report for said year
containing the following statements in reasonable detail with respect to the Corporation: a balance sheet
as of the end of said year and the preceding year, statements of revenue and expense and of changes in
financial position for the year then ended and the preceding year setting forth revenues and expenses for
such years in accordance with generally accepted accounting principles.
Section 19. OTHER REPRESENTATIONS AND COVENANTS.
(a) The Corporation shall do and perform or cause to be done and performed all acts and things
required to be done or performed by or on behalf of the Corporation under the provisions of this
Resolution.
(b) While the Bonds are outstanding and unpaid, there shall be made available to the Paying
Agent/Registrar, out of the Debt Service Fund, money sufficient to pay the interest on and the principal of
the Bonds, as applicable,as will accrue or mature on each applicable Interest Payment Date.
(c) The Corporation will faithfully perform at all times any and all covenants, undertakings,
stipulations, and provisions contained in this Resolution and in each Bond; and the Corporation will, at
the times and in the manner prescribed by this Resolution,deposit or cause to be deposited the amounts of
money specified by this Resolution.
(d) The Corporation is duly authorized under the laws of the State of Texas to issue the Bonds;
all action on its part for the authorization and issuance of the Bonds has been duly and effectively taken;
and the Bonds in the hands of the Registered Owners thereof is and will be valid and enforceable
obligations of the Corporation in accordance with its terms. All proceedings related the issuance of the
Bonds, the election of officers of the Corporation and the adoption and amendments of the bylaws of the
Corporation are hereby ratified, approved and confirmed.
20. REFUNDING BONDS. The Corporation reserves the right to issue refunding bonds or other
obligations to refund all or any part of the Parity Revenue Obligations (pursuant to any law then
available) upon such terms and conditions as the Board may deem to be in the best interest of the
Corporation, and if less than all such Parity Revenue Obligations then Outstanding are refunded, the
conditions precedent prescribed(for the issuance of Additional Obligations)set forth in Section 17 hereof
shall be satisfied, and shall give effect to the refunding.
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Section 21. SUBORDINATE DEBT. Except as may be limited by a resolution authorizing the
issuance of Parity Revenue Obligations, the Corporation shall have the right to issue or create any debt
payable from or secured by a lien on all or any part of the Pledged Revenues for any lawful purpose
without complying with the provisions of Section 16, provided the pledge and the lien securing such debt
is subordinate to the pledge and lien established, made and created in Section 8 of this Resolution with
respect to the Pledged Revenues to the payment and security of the Parity Revenue Obligations.
Section 22. DEFEASANCE OF BONDS.
(a) Any Bond and the interest thereon shall be deemed to be paid, retired and no longer
outstanding (a "Defeased Bond") within the meaning of this Resolution, except to the extent provided in
Subsection (d) of this Section, when payment of the principal of such Bond, plus interest thereon to the
due date(whether such due date be by reason of maturity or otherwise)either(i) shall have been made or
caused to be made in accordance with the terms thereof, or(ii)shall have been provided for on or before
such due date by irrevocably depositing with or making available to the Paying Agent/Registrar in
accordance with an escrow agreement or other instrument (the "Future Escrow Agreement") for such
payment (1) lawful money of the United States of America sufficient to make such payment or (2)
Defeasance Securities that mature as to principal and interest in such amounts and at such times as will
insure the availability, without reinvestment, of sufficient money to provide for such payment, and when
proper arrangements have been made by the Corporation with the Paying Agent/Registrar for the payment
of its services until all Defeased Bonds shall have become due and payable, . At such time as a Bond
shall be deemed to be a Defeased Bond hereunder, as aforesaid, such Bond and the interest thereon shall
no longer be secured by, payable from, or entitled to the benefits of, the ad valorem taxes herein levied
and pledged as provided in this Resolution, and such principal and interest shall be payable solely from
such money or Defeasance Securities. Notwithstanding any other provision of this Resolution to the
contrary, it is hereby provided that any determination not to redeem Defeased Bonds that is made in
conjunction with the payment arrangements specified in Subsection (a)(i) or(ii) of this Section shall not
be irrevocable, provided that: (1) in the proceedings providing for such payment arrangements, the
Corporation expressly reserves the right to call the Defeased Bonds for redemption; (2)gives notice of the
reservation of that right to the owners of the Defeased Bonds immediately following the making of the
payment arrangements; and (3) directs that notice of the reservation be included in any redemption
notices that it authorizes.
(b) Any moneys so deposited with the Paying Agent/Registrar may at the written direction of the
Corporation be invested in Defeasance Securities, maturing in the amounts and times as hereinbefore set
forth, and all income from such Defeasance Securities received by the Paying Agent/Registrar that is not
required for the payment of the Bonds and interest thereon,with respect to which such money has been so
deposited, shall be turned over to the Corporation, or deposited as directed in writing by the Corporation.
Any Future Escrow Agreement pursuant to which the money and/or Defeasance Securities are held for
the payment of Defeased Bonds may contain provisions permitting the investment or reinvestment of
such moneys in Defeasance Securities or the substitution of other Defeasance Securities upon the
satisfaction of the requirements specified in Subsection(a)(i)or(ii)of this Section. All income from such
Defeasance Securities received by the Paying Agent/Registrar which is not required for the payment of
the Defeased Bonds, with respect to which such money has been so deposited, shall be remitted to the
Corporation or deposited as directed in writing by the Corporation.
(c) The term "Defeasance Securities" means any securities and obligations now or hereafter
authorized by the laws of the State of Texas that are eligible to refund, retire or otherwise discharge
obligations such as the Bonds. The Pricing Officer may restrict Defeasance Securities as deemed
necessary.
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(d) Until all Defeased Bonds shall have become due and payable, the Paying Agent/Registrar
shall perform the services of Paying Agent/Registrar for such Defeased Bonds the same as if they had not
been defeased, and the Corporation shall make proper arrangements to provide and pay for such services
as required by this Resolution.
(e) In the event that the Corporation elects to defease less than all of the principal amount of
Bonds of a maturity, the Paying Agent/Registrar shall select, or cause to be selected, such amount of
Bonds by such random method as it deems fair and appropriate.
Section 23. DAMAGED, MUTILATED,LOST, STOLEN, OR DESTROYED BOND.
(a) Replacement Bonds. In the event any outstanding Bond is damaged, mutilated, lost, stolen or
destroyed, the Paying Agent/Registrar shall cause to be printed, executed and delivered, a new Bond of
the same principal amount, maturity and interest rate, as the damaged, mutilated, lost, stolen or destroyed
Bond, in replacement for such Bond in the manner hereinafter provided.
(b) Application for Replacement Bonds. Application for replacement of a damaged, mutilated,
lost, stolen or destroyed Bond shall be made by the Registered Owner thereof to the Paying
Agent/Registrar. In every case of loss, theft or destruction of a Bond, the Registered Owner applying for
a replacement Bond shall furnish to the Corporation and to the Paying Agent/Registrar such security or
indemnity as may be required by them to save each of them harmless from any loss or damage with
respect thereto. Also, in every case of loss, theft or destruction of a Bond, the Registered Owner shall
furnish to the Corporation and to the Paying Agent/Registrar evidence to their satisfaction of the loss,
theft or destruction of such Bond, as the case may be. In every case of damage or mutilation of a Bond,
the Registered Owner shall surrender to the Paying Agent/Registrar for cancellation the Bond so damaged
or mutilated.
(c) No Default Occurred. Notwithstanding the foregoing provisions of this Section, in the event
any such Bond shall have matured, and no default has occurred that is then continuing in the payment of
the principal of or interest on the Bond, the Corporation may authorize the payment of the same (without
surrender thereof except in the case of a damaged or mutilated Bond) instead of issuing a replacement
Bond, provided security or indemnity is furnished as above provided in this Section.
(d) Charge for Issuing Replacement Bonds. Prior to the issuance of any replacement Bond, the
Paying Agent/Registrar shall charge the Registered Owner of such Bond with all legal,printing, and other
expenses in connection therewith. Every replacement Bond issued pursuant to the provisions of this
Section by virtue of the fact that any Bond is lost, stolen or destroyed shall constitute a contractual
obligation of the Corporation whether or not the lost, stolen or destroyed Bond shall be found at any time,
or be enforceable by anyone, and shall be entitled to all the benefits of this Resolution.
(e) Authority for Issuing Replacement Bonds. In accordance with Sec. 1206.022, Government
Code, this Section shall constitute authority for the issuance of any such replacement Bonds without
necessity of further action by the governing body of the Corporation or any other body or person, and the
duty of the replacement of such Bonds is hereby authorized and imposed upon the Paying
Agent/Registrar, and the Paying Agent/Registrar shall authenticate and deliver such Bonds in the form
and manner and with the effect, as provided in Section 3(a) of this Resolution for a Bond issued in
exchange for another Bond.
Section 24. CUSTODY, APPROVAL, AND REGISTRATION OF BONDS; BOND
COUNSEL'S OPINION; CUSIP NUMBERS AND CONTINGENT INSURANCE PROVISION, IF
OBTAINED;ENGAGEMENT OF BOND COUNSEL.
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(a) The President of the Board is hereby authorized to have control of the Bond initially issued
and delivered hereunder and all necessary records and proceedings pertaining to the Initial Bond pending
its delivery and their investigation, examination, and approval by the Attorney General of the State of
Texas, and their registration by the Comptroller of Public Accounts of the State of Texas. Upon
registration of the Initial Bond said Comptroller of Public Accounts (or a deputy designated in writing to
act for said Comptroller) shall manually sign the Comptroller's Registration Certificate attached to such
Initial Bond, and the seal of said Comptroller shall be impressed, or placed in facsimile, on such Initial
Bond. The approving legal opinion of the Corporation's Bond Counsel and the assigned CUSIP numbers
(if obtained) may, at the option of the Corporation, be printed on the Bonds issued and delivered under
this Resolution, but neither shall have any legal effect, and shall be solely for the convenience and
information of the Registered Owners of the Bonds. In addition, if bond insurance is obtained,the Bonds
may bear an appropriate legend as provided by the insurer.
(b) The obligation of the initial purchaser to accept delivery of the Bonds are subject to the initial
purchaser being furnished with the final, approving opinion of McCall, Parkhurst& Horton L.L.P., bond
counsel to the Corporation, which opinion shall be dated as of and delivered on the date of initial delivery
of the Bonds to the initial purchaser. The engagement of such firm as bond counsel to the Corporation in
connection with issuance, sale and delivery of the Bonds are hereby approved and confirmed.
Section 25. COVENANTS REGARDING TAX EXEMPTION OF INTEREST ON THE
BONDS.
(a) Covenants. The Corporation covenants to take any action necessary to assure, or refrain from
any action that would adversely affect, the treatment of the Bonds as obligations described in section 103
of the Code, the interest on which is not includable in the "gross income" of the holder for purposes of
federal income taxation.In furtherance thereof,the Corporation covenants as follows:
(1) to take any action to assure that no more than 10 percent of the proceeds of the Bonds
(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 10 percent of the proceeds or the
projects financed or refinanced by the Bonds or the Refunded Bonds (the "Project") are so used,
such amounts, whether or not received by the Corporation, with respect to such private business
use, do not, under the terms of this Resolution or any underlying arrangement, directly or
indirectly, secure or provide for the payment of more than 10 percent of the debt service on the
Bonds,in contravention of section 141(b)(2)of the Code;
(2) to take any action to assure that in the event that the "private business use" described
in subsection (1)hereof exceeds 5 percent of the proceeds of the Bonds or the projects financed
therewith (less amounts deposited into a reserve fund, if any) then the amount in excess of 5
percent is used for a"private business use" that is "related" and not"disproportionate," within the
meaning of section 141(b)(3)of the Code,to the governmental use;
(3) to take any action to assure that no amount that is greater than the lesser of
$5,000,000, or 5 percent of the proceeds of the Bonds(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;
(4) to refrain from taking any action that would otherwise result in the Bonds being
treated as "private activity bonds"within the meaning of section 141(b)of the Code;
(5) to refrain from taking any action that would result in the Bonds being "federally
guaranteed"within the meaning of section 149(b)of the Code;
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(6) to refrain from using any portion of the proceeds of the Bonds, directly or indirectly,
to acquire or to replace funds that were used, directly or indirectly,to acquire investment property
(as defined in section 148(b)(2) of the Code)that produces a materially higher yield over the term
of the Bonds, other than investment property acquired with-
(A) proceeds of the Bonds invested for a reasonable temporary period of three
(3)years or less or,in the case of a refunding bond,for a period of thirty(30)days or less
until such proceeds are needed for the purpose for which the Bonds are issued, and in the
case of a current refunding bond, for a period of ninety(90)days or less,
(B) amounts invested in a bona fide debt service fund, within the meaning of
section 1.148-1(b)of the Treasury Regulations, and
(C) amounts deposited in any reasonably required reserve or replacement fund to
the extent such amounts do not exceed 10 percent of the proceeds of the Bonds;
(7) to otherwise restrict the use of the proceeds of the Bonds or amounts treated as
proceeds of the Bonds, as may be necessary, so that the Bonds do not otherwise contravene the
requirements of section 148 of the Code(relating to arbitrage);
(8)to refrain from using the proceeds of the Bonds or proceeds of any prior bonds to pay
debt service on another issue more than ninety (90) days after the date of issue of the Bonds in
contravention of the requirements of section 149(d) of the Code (relating to advance refundings),
if applicable; and
(9) to pay to the United States of America at least once during each five-year period
(beginning on the date of delivery of the Bonds) an amount that is at least equal to 90 percent of
the"Excess Earnings," within the meaning of section 148(f) of the Code and to pay to the United
States of America, not later than sixty (60) days after the Bonds have been paid in full, 100
percent of the amount then required to be paid as a result of Excess Earnings under section 148(f)
of the Code.
(b) Rebate Fund. In order to facilitate compliance with the above covenant (a)(9), a "Rebate
Fund" is hereby established by the Corporation 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
Bondholders. The Rebate Fund is established for the additional purpose of compliance with section 148
of the Code. There shall be transferred into the Rebate Fund from the Pledged Revenues, such amounts as
are required to be deposited therein to meet the Corporation's obligations in accordance with Section
148(f) of the Code. Amounts on deposit in the Rebate Fund shall not be subject to the lien and pledge of
this Resolution to the extent such amounts are required to be paid to the United States Treasury. The
Corporation hereby finds and determines that payment to the United States in an amount equal to interest
and other gain from the investment of moneys accumulated in the Venue Project Fund and any other
account into which Pledged Revenues are transferred,to the extent such interest or other gain is subject to
the rebate requirements of Section 148(f)of the Tax Code, shall be subject to a lien thereon in favor of the
United States Treasury and pledged to the United States Treasury for the benefit of the owners of the
Bonds from time to time. From time to time, if the Corporation determines, based on the advice of a
rebate analyst or bond counsel, that there is on deposit in the Rebate Fund more money than is needed to
satisfy the rebate obligation, then such excess shall be transferred and credited to the Gross Sales Tax
Revenue Fund.
(c) Use of Proceeds. For purposes of the foregoing covenants (a)(1) and (a)(2), the Corporation
understands that the term "proceeds" includes "disposition proceeds" as defined in the Treasury
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Regulations and, in the case of refunding bonds, transferred proceeds (if any) and proceeds of the
refunded bonds expended prior to the date of issuance of the Bonds. It is the understanding of the
Corporation 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 that modify or expand provisions of the Code, as
applicable to the Bonds, the Corporation will not be required to comply with any covenant contained
herein to the extent that such failure to comply, in the opinion of nationally recognized bond counsel,will
not adversely affect the exemption from federal income taxation of interest on the Bonds under section
103 of the Code. In the event that regulations or rulings are hereafter promulgated that impose additional
requirements applicable to the Bonds, the Corporation agrees to comply with the additional requirements
to the extent necessary, in the opinion of nationally recognized bond counsel, to preserve the exemption
from federal income taxation of interest on the Bonds under section 103 of the Code. In furtherance of
such intention, the Corporation hereby authorizes and directs the Pricing Officer to execute any
documents, certificates or reports required by the Code and to make such elections, on behalf of the
Corporation, that may be permitted by the Code as are consistent with the purpose for the issuance of the
Bonds.
(d) Interest Earnings on Bond Proceeds. Interest earnings derived from the investment of
proceeds from the sale of the Bonds shall be used along with other bond proceeds for the purpose for
which the Bonds are issued, as set forth in Section 1 hereof; provided that after completion of such
purpose, if any of such interest earnings remain on hand, such interest earnings shall be deposited in the
Interest and Sinking Fund. It is further provided, however, that any interest earnings on bond proceeds
which are required to be rebated to the United States of America pursuant to Section 10(a)hereof in order
to prevent the Bonds from being arbitrage bonds shall be so rebated and not considered as interest
earnings for the purposes of this Section.
(e) Disposition of Project. The Corporation covenants that the property constituting the project
financed with the proceeds of the Bonds will not be sold or otherwise disposed in a transaction resulting
in the receipt by the Corporation of cash or other compensation, unless the Corporation obtains an opinion
of nationally-recognized bond counsel that such sale or other disposition will not adversely affect the tax-
exempt status of the Bonds. For purposes of the foregoing, the portion of the property comprising
personal property and disposed in the ordinary course shall not be treated as a transaction resulting in the
receipt of cash or other compensation. For purposes hereof, the Corporation shall not be obligated to
comply with this covenant if it obtains an opinion that such failure to comply will not adversely affect the
excludability for federal income tax purposes from gross income of the interest.
(f) Allocation of, and Limitation on, Expenditures for the Project. The Corporation covenants to
account for the expenditure of sale proceeds and investment earnings to be used for the purposes of the
Venue Project described herein on its books and records in accordance with the requirements of the
Internal Revenue Code. The Corporation recognizes that in order for the proceeds to be considered used
for the reimbursement of costs, the proceeds must be allocated to expenditures within eighteen (18)
months of the later of the date that(1)the expenditure is made, or(2)the Venue Project is completed; but
in no event later than three years after the date on which the original expenditure is paid. The foregoing
notwithstanding, the Corporation recognizes that in order for proceeds to be expended under the Internal
Revenue Code, the sale proceeds or investment earnings must be expended no more than sixty (60) days
after the earlier of(1) the fifth anniversary of the delivery of the Bonds, or (2)the date the Bonds are
retired. The Corporation agrees to obtain the advice of nationally-recognized bond counsel if such
expenditure fails to comply with the foregoing to assure that such expenditure will not adversely affect
the tax-exempt status of the Bonds. For purposes hereof,the Corporation shall not be obligated to comply
with this covenant if it obtains an opinion that such failure to comply will not adversely affect the
excludability for federal income tax purposes from gross income of the interest.
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(g) Declaration of Official Intent of Reimbursement. This Resolution is intended to satisfy the
official intent requirements set forth in section 1.150-2 of the Treasury Regulations.
Section 26. SALE OF BONDS AND APPROVAL OF OFFICIAL STATEMENT.
(a) The Bonds shall be sold and delivered subject to the provisions of Sections 2 and 3 and
pursuant to the terms and provisions of a bond purchase agreement or purchase letter (the "Purchase
Agreement") which the Pricing Officer is hereby authorized to execute and deliver and in which the
purchaser or purchasers (the "Purchaser")of the Bonds shall be designated. The Bonds shall initially be
registered in the name set forth in the Pricing Certificate.
(b) The President and Secretary of the Board or the Pricing Officer are further authorized and
directed to execute and deliver for and on behalf of the Corporation copies of a Preliminary Official
Statement and Official Statement, prepared in connection with the offering of the Bonds by the Purchaser,
in final form as may be required by the Purchaser, and such final Official Statement in the form and
content as approved by the Pricing Officer or as manually executed by said officials shall be deemed to be
approved by the Board of Directors of the Corporation and constitute the Official Statement authorized
for distribution and use by the Purchaser. The form and substance of the Preliminary Official Statement
for the Bonds and any addenda, supplement or amendment thereto, all as approved by the Pricing Officer,
are hereby deemed to be approved in all respects by the Board of Directors of the Corporation, and the
Preliminary Official Statement is hereby deemed final as of its date (except for the omission of pricing
and related information) within the meaning and for the purpose of paragraph (b)(1) of the Rule
(hereinafter defined).
(c) The Pricing Officer is authorized,in connection with effecting the sale of the Bonds,to obtain
from a municipal bond insurance company so designated in the Pricing Certificate (the "Insurer") a
municipal bond insurance policy (the "Insurance Policy") in support of the Bonds. To that end, should
the Pricing Officer exercise such authority and commit the Corporation to obtain a municipal bond
insurance policy, for so long as the Insurance Policy is in effect,the requirements of the Insurer relating to
the issuance of the Insurance Policy as set forth in the Pricing Certificate are incorporated by reference
into this Resolution and made a part hereof for all purposes, notwithstanding any other provision of this
Resolution to the contrary. The Pricing Officer shall have the authority to execute any documents to
effect the issuance of the Insurance Policy by the Insurer.
Section 27. FURTHER PROCEDURES. The President, Vice-President and Secretary of the
Board, and/or any Pricing Officer, and each of them, shall be and they are hereby expressly authorized,
empowered and directed from time to time and at any time to do and perform all such acts and things and
to execute, acknowledge and deliver on behalf of the Corporation all such instruments, whether or not
herein mentioned, as may be necessary or desirable in order to carry out the terms and provisions of this
Resolution, the Bonds, the sale of the Bonds and the Official Statement. In case any officer whose
signature shall appear on any Bond shall cease to be such officer before the delivery of such Bond, such
signature shall nevertheless be valid and sufficient for all purposes the same as if such officer had
remained in office until such delivery.
Section 28. COMPLIANCE WITH RULE 15c2-12.
(a) Applicability of Provisions. The provisions of this Section shall apply to the Bonds if so
designated in the Pricing Certificate.
(b) Definitions. As used in this Section, the following terms have the meanings ascribed to such
terms below:
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"MSRB" means the Municipal Securities Rulemaking Board.
"Rule" means SEC Rule 15c2-12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
(c) Annual Reports.
(i) The Corporation shall provide annually to the MSRB, in an electronic format as
prescribed by the MSRB, within six months after the end of each fiscal year, financial
information and operating data with respect to the Corporation of the general type described in
the Pricing Certificate. The Corporation will additionally provide audited financial statements
when and if available, and in any event, within twelve (12) months after the end of each fiscal
year. If the audit of such financial statements is not complete within twelve(12)months after any
such fiscal year end, then the Corporation will file unaudited financial statements within such
twelve (12) month period and audited financial statements for the applicable fiscal year, when
and if the audit report on such statements becomes available. Any financial statements so to be
provided shall be the Pricing Certificate, or such other accounting principles as the Corporation
may be required to employ from time to time pursuant to state law or regulation.
(ii) If the Corporation changes its fiscal year, it will notify the MSRB of the change (and
of the date of the new fiscal year end) prior to the next date by which the Corporation otherwise
would be required to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section may be set
forth in full in one or more documents or may be included by specific reference to any document
that is available to the public on the MSRB's internet website or filed with the SEC. All
documents provided to the MSRB pursuant to this Section shall be accompanied by identifying
information as prescribed by the MSRB.
(d) Event Notices.
(i) The Corporation shall notify the MSRB in an electronic format as prescribed by the
MSRB, in a timely manner(but not in excess of ten(10)business days after the occurrence of the
event)of any of the following events with respect to the Bonds:
1. Principal and interest payment delinquencies;
2. Non-payment related defaults,if material;
3. Unscheduled draws on debt service reserves reflecting financial difficulties;
4. Unscheduled draws on credit enhancements reflecting financial difficulties;
5. Substitution of credit or liquidity providers, or their failure to perform;
6. Adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final
determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other
material notices or determinations with respect to the tax status of the Bonds, or other
events affecting the tax status of the Bonds;
7. Modifications to rights of holders of the Bonds,if material;
8. Certificate calls,if material, and tender offers;
9. Defeasances;
10. Release, substitution, or sale of property securing repayment of the Bonds,if material;
11. Rating changes;
12. Bankruptcy,insolvency, receivership or similar event of the Corporation;
13. The consummation of a merger, consolidation, or acquisition involving the Corporation
or the sale of all or substantially all of the assets of the Corporation, other than in the
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ordinary course of business, the entry into a definitive agreement to undertake such an
action or the termination of a definitive agreement relating to any such actions, other than
pursuant to its terms, if material; and
14. Appointment of a successor trustee or change in the name of the trustee,if material;
15. Incurrence of a financial obligation of the Corporation, if material, or agreement to
covenants, events of default, remedies, priority rights, or other similar terms of any such
financial obligation of the Corporation, any of which affect security holders, if material;
and
16. Default, event of acceleration, termination event, modification of terms, or other similar
events under the terms of any such financial obligation of the Corporation, any of which
reflect financial difficulties.
As used in clause 12 above, the phrase "bankruptcy, insolvency, receivership or similar event"
means the appointment of a receiver, fiscal agent or similar officer for the Corporation in a
proceeding under the U.S. Bankruptcy Code or in any other proceeding under state or federal law
in which a court or governmental authority has assumed jurisdiction over substantially all of the
assets of the Corporation, or if jurisdiction has been assumed by leaving the existing City Council
and officials or officers of the Corporation in possession but subject to the supervision and orders
of a court or governmental authority, or the entry of an order confirming a plan of reorganization,
arrangement or liquidation by a court or governmental authority having supervision or
jurisdiction over substantially all of the assets or business of the Corporation. For the purposes of
the above describe event notices 15 and 16, the term "financial obligation" means a (i) debt
obligation, (ii) derivative instrument entered into in connection with, or pledged as security or a
source of payment for, an existing or planned debt obligation, or (iii) a guarantee of(i) or (ii);
provided however, that a "financial obligation" shall not include municipal securities as to which
a final official statement(as defined in the Rule)has been provided to the MSRB consistent with
the Rule.
(ii) The Corporation shall notify the MSRB, in a timely manner, of any failure by the
Corporation to provide financial information or operating data in accordance with subsection(c)
of this Section by the time required by such subsection.
(e) Limitations,Disclaimers, and Amendments.
(i) The Corporation shall be obligated to observe and perform the covenants specified in
this Section for so long as, but only for so long as, the Corporation remains an"obligated person"
with respect to the Bonds within the meaning of the Rule, except that the Corporation in any
event will give notice of any deposit made in accordance with this Resolution or applicable law
that causes Bonds no longer to be outstanding.
(ii) The provisions of this Section are for the sole benefit of the registered owners and
beneficial owners of the Bonds, and nothing in this Section, express or implied, shall give any
benefit or any legal or equitable right, remedy, or claim hereunder to any other person. The
Corporation undertakes to provide only the financial information, operating data, financial
statements, and notices which it has expressly agreed to provide pursuant to this Section and does
not hereby undertake to provide any other information that may be relevant or material to a
complete presentation of the Corporation's financial results, condition, or prospects or hereby
undertake to update any information provided in accordance with this Section or otherwise,
except as expressly provided herein. The Corporation does not make any representation or
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warranty concerning such information or its usefulness to a decision to invest in or sell Bonds at
any future date.
(iii) UNDER NO CIRCUMSTANCES SHALL THE CORPORATION BE LIABLE TO
THE REGISTERED OWNER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER
PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN
PART FROM ANY BREACH BY THE CORPORATION, WHETHER NEGLIGENT OR
WITHOUT FAULT ON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION,
BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT,
FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION
FOR MANDAMUS OR SPECIFIC PERFORMANCE.
(iv) No default by the Corporation in observing or performing its obligations under this
Section shall comprise a breach of or default under this Resolution for purposes of any other
provision of this Resolution. Nothing in this Section is intended or shall act to disclaim, waive,
or otherwise limit the duties of the Corporation under federal and state securities laws.
(v) Should the Rule be amended to obligate the Corporation to make filings with or
provide notices to entities other than the MSRB,the Corporation hereby agrees to undertake such
obligation with respect to the Bonds in accordance with the Rule as amended. The provisions of
this Section may be amended by the Corporation from time to time to adapt to changed
circumstances that arise from a change in legal requirements, a change in law, or a change in the
identity, nature, status, or type of operations of the Corporation, but only if(1) the provisions of
this Section, as so amended,would have permitted an underwriter to purchase or sell Bonds in the
primary offering of the Bonds in compliance with the Rule, taking into account any amendments
or interpretations of the Rule since such offering as well as such changed circumstances and (2)
either (a) the registered owners of a majority in aggregate principal amount (or any greater
amount required by any other provision of this Resolution that authorizes such an amendment) of
the outstanding Bonds consent to such amendment or (b) a person that is unaffiliated with the
Corporation (such as nationally recognized bond counsel) determined that such amendment will
not materially impair the interest of the registered owners and beneficial owners of the Bonds.
The Corporation may also amend or repeal the provisions of this continuing disclosure agreement
if the SEC amends or repeals the applicable provision of the Rule or a court of final jurisdiction
enters judgment that such provisions of the Rule are invalid, but only if and to the extent that the
provisions of this sentence would not prevent an underwriter from lawfully purchasing or selling
Bonds in the primary offering of the Bonds. If the Corporation so amends the provisions of this
Section, it shall include with any amended financial information or operating data next provided
in accordance with subsection(b) of this Section an explanation, in narrative form, of the reason
for the amendment and of the impact of any change in the type of financial information or
operating data so provided.
Section 29. METHOD OF AMENDMENT. The Corporation hereby reserves the right to amend
this Resolution subject to the following terms and conditions,to-wit:
(a) The Corporation may from time to time, without the consent of any holder, except as
otherwise required by paragraph(b)below, amend or supplement this Resolution in order to (i) cure any
ambiguity, defect or omission in this Resolution that does not materially adversely affect the interests of
the holders, (ii)grant additional rights or security for the benefit of the holders, (iii) add events of default
as shall not be inconsistent with the provisions of this Resolution and that shall not materially adversely
affect the interests of the holders, (iv) qualify this Resolution under the Trust Indenture Act of 1939, as
amended, or corresponding provisions of federal laws from time to time in effect, or(v)make such other
30
provisions in regard to matters or questions arising under this Resolution as shall not be inconsistent with
the provisions of this Resolution and that shall not in the opinion of nationally recognized bond counsel
materially adversely affect the interests of the holders.
(b) Except as provided in paragraph (a) above, the holders of Bonds aggregating in principal
amount 51% of the aggregate principal amount of then outstanding Bonds that are the subject of a
proposed amendment shall have the right from time to time to approve any amendment hereto that may be
deemed necessary or desirable by the Corporation; provided, however, that without the consent of 100%
of the holders in aggregate principal amount of the then outstanding Bonds,nothing herein contained shall
permit or be construed to permit amendment of the terms and conditions of this Resolution or in any of
the Bonds so as to:
(1) Make any change in the maturity of any of the outstanding Bonds;
(2) Reduce the rate of interest borne by any of the outstanding Bonds;
(3) Reduce the amount of the principal of, or redemption premium, if any, payable on any
outstanding Bonds;
(4) Modify the terms of payment of principal or of interest or redemption premium on
outstanding Bonds or any of them or impose any condition with respect to such payment; or
(5) Change the minimum percentage of the principal amount of the Bonds necessary for consent
to such amendment.
(c) If at any time the Corporation shall desire to amend this Resolution under this Section, the
Corporation shall send by U.S. mail to the Registered Owners of the Bonds a copy of the proposed
amendment.
(d) Whenever at any time within one year from the date of mailing of such notice the
Corporation shall receive an instrument or instruments executed by the Registered Owners of the Bonds,
which instrument or instruments shall refer to the proposed amendment and that shall specifically consent
to and approve such amendment, the Corporation may adopt the amendment in substantially the same
form.
(e) Upon the adoption of any amendatory Resolution pursuant to the provisions of this Section,
this Resolution shall be deemed to be modified and amended in accordance with such amendatory
Resolution, and the respective rights, duties, and obligations of the Corporation and the Registered
Owners of the Bonds shall thereafter be determined, exercised, and enforced, subject in all respects to
such amendment.
(f) Any consent given by the Registered Owners of the Bonds pursuant to the provisions of this
Section shall be irrevocable for a period of six months from the date of the ailing of the notice provided
for in this Section, and shall be conclusive and binding upon all future holders of the same Bonds during
such period. Such consent may be revoked at any time after six months from the date of the mailing of
said notice by the Registered Owners, or by a successor in title,by filing notice with the Corporation.
(g) For the purposes of establishing ownership of the Bonds, the Corporation shall rely solely
upon the registration of the ownership of such Bonds on the registration books kept by the Paying
Agent/Registrar.
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Section 30. DEFAULT AND REMEDIES.
(a) Events of Default. Each of the following occurrences or events for the purpose of this
Resolution is hereby declared to be an Event of Default:
(i) the failure to make payment of the principal of or interest on any of the Bonds when
the same becomes due and payable; or
(ii) default in the performance or observance of any other covenant, agreement or
obligation of the Corporation, the failure to perform which materially, adversely affects the rights
of the Registered Owners of the Bonds, including, but not limited to, their prospect or ability to
be repaid in accordance with this Resolution, and the continuation thereof for a period of 60 days
after notice of such default is given by any Registered Owner to the Corporation.
(b) Remedies for Default.
(i) Upon the happening of any Event of Default, then and in every case, any Registered
Owner or an authorized representative thereof, including, but not limited to, a trustee or trustees
therefor, may proceed against the Corporation for the purpose of protecting and enforcing the
rights of the Registered Owners under this Resolution, by mandamus or other suit, action or
special proceeding in equity or at law, in any court of competent jurisdiction, for any relief
permitted by law, including the specific performance of any covenant or agreement contained
herein, or thereby to enjoin any act or thing that may be unlawful or in violation of any right of
the Registered Owners hereunder or any combination of such remedies.
(ii) It is provided that all such proceedings shall be instituted and maintained for the
equal benefit of all Registered Owners of Bonds then outstanding.
(c) Remedies Not Exclusive.
(i) No remedy herein conferred or reserved is intended to be exclusive of any other
available remedy or remedies,but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or under the Bonds or now or hereafter existing at
law or in equity; provided, however, that notwithstanding any other provision of this Resolution,
the right to accelerate the debt evidenced by the Bonds shall not be available as a remedy under
this Resolution.
(ii) The exercise of any remedy herein conferred or reserved shall not be deemed a
waiver of any other available remedy.
(iii) By accepting the delivery of a Bond authorized under this Resolution, such
Registered Owner agrees that the certifications required to effectuate any covenants or
representations contained in this Resolution do not and shall never constitute or give rise to a
personal or pecuniary liability or charge against the officers, employees or the Board of Directors
of the Corporation.
Section 31. SALES TAX REMITTANCE AGREEMENT. The Sales Tax Remittance
Agreement between the City and the Corporation is hereby approved and confirmed and shall remain in
full force and effect in accordance with its terms.
Section 32. SEVERABILITY. If any section, article, paragraph, sentence, clause, phrase or
word in this Resolution, or application thereof to any persons or circumstances is held invalid or
32
unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of the
remaining portion of this Resolution, despite such invalidity, which remaining portions shall remain in
full force and effect.
Section 33. EFFECTIVE DAlE. In accordance with the provisions of V.T.C.A., Government
Code Section 1201.028,this Resolution shall be effective immediately upon its adoption by the Board.
(execution page follows)
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PASSED, APPROVED AND EFFECTIVE this
President,Board of Directors
ATTEST:
Secretary,Board of Directors
[CORPORATION SEAL]
SALES TAX REMITTANCE AGREEMENT
THIS SALES TAX REMITTANCE AGREEMENT, dated as of April 6, 2021, executed by and
between the City of Wichita Falls, Texas (the "City") and the Wichita Falls Economic Development
Corporation(the"Corporation")
WITNESSETH:
WHEREAS, the Corporation was created by the City pursuant to authority granted by Article
5190.6,Texas Revised Civil Statutes, as amended(the"Act"), specifically with the Corporation to possess
the powers granted by Section 4A of the Act, and now operates under Chapter 504, Texas Local
Government Code;and
WHEREAS, on January 18, 1997,the citizens of the City voting at an election(the"Election") on
said date approved the levy of a one fourth of one percent(1/4%) sales and use tax upon the receipts at
retail of taxable items,pursuant to the Act(the"Economic Development Sales Tax");and
WHEREAS, under the Act and the provisions of the Texas Tax Code, disbursements of sales and
use taxes are made to cities, such as the City, by the Comptroller of Public Accounts of Texas (the
"Comptroller");and
WHEREAS, under authority of the Act, the Corporation was created to fund and finance eligible
projects under the Act, particularly Section 4A thereof, and to secure said obligations with the Economic
Development Sales Tax collected by the City under authority of Section 4A of the Act;and
WHEREAS, the parties hereto find it necessary and advisable to enter into this Agreement to
evidence the duties and responsibilities of the respective parties with respect to the collection, remittance
and transfer of such sales and use tax revenues.
NOW THEREFORE, in consideration of the covenants and agreements herein made, and subject
to the conditions herein set forth,the City and the Corporation contract and agree as follows:
ARTICLE I
SALES TAX FUND
Section 1.1. Creation of Fund. The City agrees to establish and maintain at an official depository
bank of the City (the `Depository"), a fund to be entitled "Wichita Falls Economic Development
Corporation Sales and Use Tax Fund"(the"Sales Tax Fund"). The Sales Tax Fund shall be maintained as
a separate fund at the Depository,and no other moneys of the City shall be commingled with the Sales Tax
Fund.
Section 1.2. Deposits to Fund. The revenues received by the City from the Comptroller from the
charge and levy of the Economic Development Sales Tax shall be deposited as received, or transmitted by
the Comptroller directly, to the credit of the Sales Tax Fund, for the benefit of the Corporation, and shall
be made available to the Corporation from time to time as hereinafter provided in this Agreement.
Section 1.3. Security for Fund. The City hereby agrees that moneys on deposit in the Sales Tax
Fund shall at all times be collateralized in the manner and with the collateral required by the City for its
own funds.
Section 1.4. Change in Depository. The City reserves the right from time to time to change its
official depository bank, and hereby agrees to give the Corporation thirty(30)clays prior written notice of
any such change in its official depository bank.
ARTICLE II
TRANSFER OF FUNDS
Section 2.1. Collection of Economic Development Sales Tax. (a)Until the Comptroller is able to
determine and report the amount of the Economic Development Sales Tax levied for the benefit of the
Corporation and any rebate, charge-back or adjustment thereof on a point of collection basis,the City will
allocate a portion of the undivided sales and use tax receipts to the Corporation on the basis of the total
sales and use taxes collected, multiplied by the pro rata portion of the Economic Development Sales Tax
and divided by all other sales and use taxes received from the Comptroller by the City. In addition, the
City will allocate the costs of any rebate or charge-back applicable to the undivided sales and use tax
receipts between the City and the Corporation on a pro rata basis.
(b) The President of the Board of Directors of the Corporation and the chief financial officer of the
City shall take such actions as are required to cause the Economic Development Sales Tax to be delivered
and transferred by the Texas State Treasurer and the Comptroller to the City for use by the Corporation by
the fastest and most economically feasible means available.
Section 2.2. Sales Tax Fund. The Corporation hereby confirms the City's depository bank as the
depository bank for the Sales Tax Fund all as provided herein.
Section 2.3. Transfers to Sales Tax Fund. On or before the 25th day of each month,the City shall
direct the Depository to transfer funds on deposit in the Sales Tax Fund to the credit of the Gross Sales
Tax Revenue Fund of the Corporation. The City shall cause the Depository to make such transfers within
twenty-four (24) hours of receipt of such direction to the extent that there are moneys on deposit in the
Sales Tax Fund to effect such transfer.
Section 2.4. Use of Moneys by Corporation. The Corporation agrees to use the moneys on deposit
in the Corporation's Revenue Fund in a manner consistent with the terms and conditions of the Act and the
Election.
Section 2.5. Covenant of the City. Recognizing that the Economic Development Sales Tax shall
provide the security for the Corporation's bonds and other obligations, so long as such bonds and other
obligations are outstanding, the City covenants and agrees that it will take and pursue all possible action
permitted by the Act and other applicable State law to cause the Economic Development Sales Tax to be
levied and collected continuously at the rate of one fourth of one percent or,to the extent permitted by law
and necessary or desirable, at a higher rate, and the City will not cause a reduction, abatement or
exemption in the Economic Development Sales Tax or in the rate at which it is authorized to be collected.
ARTICLE III
MISCELLANEOUS
Section 3.1. Depository Responsibilities. The President of the Board of Directors of the
Corporation and the chief financial officer of the City shall develop procedures to ensure that the official
depository bank of the City, as it may exist from time to time, shall be obligated to perform the duties
2
detailed in this Agreement, and to that end the City agrees to incorporate into its agreement with its official
depository bank a covenant by the official depository bank that it will perform all duties and obligations as
a depository as set forth in this Agreement.
Section 3.2. Fees of Depository. In connection with the establishment and maintenance of the
Sales Tax Fund, the Corporation agrees to pay the reasonable costs and expenses of the Depository
associated with the administration of the Sales Tax Fund and such costs and expenses, if any, shall never
constitute a cost, liability, or obligation of the City.
Section 3.3. Severability. If any clause, provision, or section of this Agreement should be held
illegal or invalid by any court of competent jurisdiction, the invalidity of such clause, provision, or section
shall not affect any of the remaining clauses, provisions, or sections hereof and this Agreement shall be
construed and enforced as if such illegal or invalid clause, provision, or section had not been contained
herein. In case any agreement or obligation contained in this Agreement should be held to be in violation of
law, then such agreement or obligation shall be deemed to be the agreement or obligation of the City and
the Corporation,as the case may be,to the full extent permitted by law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed in multiple
counterparts, each of which shall be considered an original for all purposes, as of the day and year first set
out above.
CITY OF WICHITA FALLS,TEXAS
By:
Mayor
WICHITA FALLS ECONOMIC
DEVELOPMENT CORPORATION
By:
President