Agenda Packet TC 11/23/2015 - Special SessionTown Council
Trophy Club Entities
Meeting Agenda
100 Municipal Drive
Trophy Club, Texas 76262
Svore Municipal Building Boardroom8:45 AMMonday, November 23, 2015
SPECIAL SESSION
CALL TO ORDER AND ANNOUNCE A QUORUM
REGULAR SESSION
1.2015-0759-T Consider and take appropriate action regarding an Ordinance approving and
authorizing the Issuance and Sale of the Town of Trophy Club Public Improvement
District No. 1 Special Assessment Revenue Refunding Bonds, Series 2015 in an
aggregate principal amount not to exceed $26,155,000; approving and authoring an
Indenture of Trust, a Bond Purchase Contract, an Official Statement, a Continuing
Disclosure Agreement, an Escrow Agreement, a Bond Counsel Engagement Letter and
Financial Advisory Services Agreement and other agreements and documents in
connection therewith; making findings with respect to the issuance of such bonds; and
providing an effective date.
Staff Report - PID No. 1 Refunding.pdf
SAMCO Refunding Memorandum.pdf
ORD 2015-42 Bond Ordinance - Trophy Club PID No 1.pdf
Indenture of Trust -Trophy Club PID No 1.pdf
Engagement Letter for PID Bonds.pdf
Attachments:
EXECUTIVE SESSION
2.2015-0780-T Pursuant to the following designated sections of the Texas Government Code,
Annotated, Chapter 551 (Texas Open Meetings Act), the Council will convene into
closed executive session to discuss the following:
Texas Government Code Section 551.071(2) Consultation with Attorney, in order to
consult with its attorney on a matter in which the duty of the attorney to the
Governmental Body under the Disciplinary Rules of Professional Conduct of the
State Bar of Texas clearly conflict with the Open Meetings Act:
(A) Legal Advice regarding zoning, comprehensive plan, platting, and other Town
development and code regulations
RECONVENE INTO REGULAR SESSION
3.2015-0781-T Consider and take appropriate action regarding the Executive Session.
Town Council Page 1 of 100 Meeting Date: November 23, 2015
November 23, 2015Town Council Meeting Agenda
ADJOURN
* The Town Council may convene into executive session to discuss posted items as
allowed by the Texas Open Meeting Act, LGC.551.071
CERTIFICATION
I certify that the above notice was posted on the front window of the Svore Municipal
Building, 100 Municipal Drive, Trophy Club, Texas, on November 19, 2015, by 5:00
p.m. in accordance with Chapter 551, Texas Government Code.
Holly Fimbres
Town Secretary/RMO
If you plan to attend this public meeting and have a disability that requires special
needs, please contact the Town Secretary’s Office at 682-831-4600, 48 hours in
advance, and reasonable accommodations will be made to assist you.
I certify that the attached notice and agenda of items to be considered by this Board
was removed by me from the front window of the Svore Municipal Building, 100
Municipal Drive, Trophy Club, Texas, on the __________ day of
______________________, 2015.
________________________________, Title: ___________________________
Town Council Page 2 of 100 Meeting Date: November 23, 2015
100 Municipal Drive
Trophy Club, Texas 76262Trophy Club Entities
Legislation Details (With Text)
File #: Version:12015-0759-T Name:
Status:Type:Ordinance Regular Session
File created:In control:11/17/2015 Town Council
On agenda:Final action:11/23/2015
Title:Consider and take appropriate action regarding an Ordinance approving and authorizing the Issuance
and Sale of the Town of Trophy Club Public Improvement District No. 1 Special Assessment Revenue
Refunding Bonds, Series 2015 in an aggregate principal amount not to exceed $26,155,000;
approving and authoring an Indenture of Trust, a Bond Purchase Contract, an Official Statement, a
Continuing Disclosure Agreement, an Escrow Agreement, a Bond Counsel Engagement Letter and
Financial Advisory Services Agreement and other agreements and documents in connection
therewith; making findings with respect to the issuance of such bonds; and providing an effective date.
Attachments:Staff Report - PID No. 1 Refunding.pdf
SAMCO Refunding Memorandum.pdf
ORD 2015-42 Bond Ordinance - Trophy Club PID No 1.pdf
Indenture of Trust -Trophy Club PID No 1.pdf
Engagement Letter for PID Bonds.pdf
Action ByDate Action ResultVer.
Consider and take appropriate action regarding an Ordinance approving and authorizing the Issuance and Sale of the
Town of Trophy Club Public Improvement District No. 1 Special Assessment Revenue Refunding Bonds, Series 2015 in
an aggregate principal amount not to exceed $26,155,000; approving and authoring an Indenture of Trust, a Bond
Purchase Contract, an Official Statement, a Continuing Disclosure Agreement, an Escrow Agreement, a Bond Counsel
Engagement Letter and Financial Advisory Services Agreement and other agreements and documents in connection
therewith; making findings with respect to the issuance of such bonds; and providing an effective date.
Town Council Page 3 of 100 Meeting Date: November 23, 2015
To: Mayor and Town Council
From: Steven Glickman, Assistant Town Manager/CFO
CC: Stephen Seidel, Town Manager
Holly Fimbres, Town Secretary
Re: PID No. 1 Refunding
Town Council Meeting, November 23, 2015
Agenda Item:
Consider and take appropriate action regarding an Ordinance approving and authorizing the
Issuance and Sale of the Town of Trophy Club Public Improvement District No. 1 Special
Assessment Revenue Refunding Bonds, Series 2015 in an aggregate principal amount not to
exceed $26,155,000; approving and authoring an Indenture of Trust, a Bond Purchase Contract,
an Official Statement, a Continuing Disclosure Agreement, an Escrow Agreement, a Bond
Counsel Engagement Letter and Financial Advisory Services Agreement and other agreements
and documents in connection therewith; making findings with respect to the issuance of such
bonds; and providing an effective date.
Explanation:
Town staff has worked diligently with our financial advisor, Mark McLiney, of SAMCO Capital
Markets and our bond counsel, Julie Partain, of Bracewell and Giuliani, to potentially refund the
Trophy Club Public Improvement District No. 1 bonds. Along with our underwriters with BOSC,
Inc. and Jeffries, our PID Administrators with David Taussig & Associates, and Chris Settle with
McCall, Parkhurst & Horton, this has been an extremely complex and challenging project with a
lot of moving parts. The Town Council gave staff approval to move forward with pursuing this
refunding opportunity at the August 25, 2015 Council meeting. Since that time a great deal of
progress has been made, and assuming a favorable rating from Standard and Poor’s, this would
be the first PID bonds in the State of Texas to earn and Investment Grade Rating. The original
PID bonds were issued in 2007, non-rated, with a 7.75% interest rate, 30 year term, for a
principal amount of $27.5M. The new bonds, assuming an Investment Grade Rating, would be
issued with an approximate interest rate of 4.25% and would save the PID residents up to $12M
in assessments over the life of the bonds, or about $8,500 per homeowner. The Town has a
ratings call scheduled with Standard and Poor’s on Monday, November 30, 2015, and we hope
to have the rating the following week. At that time we would know if we can finalize the
refunding this calendar year or if we need to plan the refunding for 2016 or 2017.
Attachments:
• SAMCO Refunding Memorandum
• Ordinance No. 2015-42
Page 1 of 2
Town Council Page 4 of 100 Meeting Date: November 23, 2015
• Indenture of Trust
• Engagement Letter
Recommendation:
Staff recommends Council approval of the ordinance approving the issuance and sale of the
Town of Trophy Club Public Improvement District No. 1 Special Assessment Revenue Refunding
Bonds, Series 2015.
Page 2 of 2
Town Council Page 5 of 100 Meeting Date: November 23, 2015
MARK M. McLINEY, Senior Managing Director
Public Finance Department (210) 832-9760 Phone
8700 Crownhill Boulevard, Suite 601 (210) 832-9794 Fax
San Antonio, TX 78209 mmcliney@samcocapital.com
MEMORANDUM
To: Stephen Seidel, Town Manager
Steven Glickman, Assistant Town Manager and CFO
Date: November 19, 2015
Re:
Trophy Club PID Proposed PID Refunding
On Monday November 23 rd, the Town Council will be asked to approve an Ordinance authorizing
the Sale of Trophy Club Public Improvement District No. 1 Special Assessment Revenue
Refunding Bonds, Series 2015 if a minimum savings of $10,000,000 can be generated. If Town
Council approves the Ordinance, the Town Manager, Assistant Town Manager and outside
advisors will be authorized to proceed with the Refunding only if the minimum savings target can
be reached .
If we are successful with the Refunding we expect to generate savings that in current market
conditions could total approximately $12,000,000. (The Ordinance states $10,000,000 so that if
the interest rate market moves higher, we can still proceed.) This would mean approximate
savings of $8,500 of future assessments over the life of the bond issue to each property owner
within the PID.
We are currently worki ng with S&P on a bond rating for the PID. The rating would be the first
for the PID because the original bonds were sold as non -rated at a 7.75% interest rate. S& P has
specific criteria for Assessment Supported Bonds. We meet all of the Rating Agency’ s criteria for
an investment grade rating, however we are relying on a mid -year assessment from Denton
County Appraisal District on recently sold properties to meet their criteria. If S&P is unwilling to
accept mid -year assessments, they are unlikely to award the PID an investment grade rating until
the entire District is reassessed by DCAD and we will want to wait to refund the bonds until the
Investment Grade Refunding is awarded.
We are attempting to be the first PID Bond in the State of Texas to earn an Investment Grade
Rating. Because of this, there are extra eyes being placed on this transaction and this creates risks
of which you need to be aware. None of the risks will change the current status of the
outstanding bonds, but it could cause us to delay the financing. If we delay into next year, the
Town Council will have to decide if we want to sell the PID Refunding Bonds during the year that
the Town sells its own debt obligations. Currently, the Town is planning to sell $5,400,000 GO
Bond and a $4,350,000 CO during the upcoming calendar year. The combined $9,750,000 would
qualify for lower Bank Qualified interest rates that are allowed for Cities that borrow less than
$10,000,000 in a calendar year. This benefit will total about $500,000 over the 20 years of the
loan or $25,000/year. If we would sell the PID Refunding Bonds during the same calendar year
we would lose that benefit, but we could gain the PID savings of approximately $12,000,000.
Town Council Page 6 of 100 Meeting Date: November 23, 2015
One is for the benefit of the entire Town and the other is for the sole benefit of the Residents of
the PID. If the Town elects to delay the refinancing so not to affect the Town’ s Bonds, we would
schedule the Refunding to sell in December 2016 and close in January 2017. T his will open up
the risk of higher interest rates and reduced savings due to the higher rates.
I will be at the meeting on November 23, 2015 to address the refinancing and answer any
questions that you may have.
Town Council Page 7 of 100 Meeting Date: November 23, 2015
TOWN OF TROPHY CLUB, TEXAS
ORDINANCE NO. 2015-42
AN ORDINANCE APPROVING AND AUTHORIZING THE ISSUANCE
AND SALE OF THE TOWN OF TROPHY CLUB PUBLIC
IMPROVEMENT DISTRICT NO. 1 SPECIAL ASSESSMENT REVENUE
REFUNDING BONDS, SERIES 2015 IN AN AGGREGATE PRINCIPAL
AMOUNT NOT TO EXCEED $26,155,000; APPROVING AND
AUTHORIZING AN INDENTURE OF TRUST, A BOND PURCHASE
CONTRACT, AN OFFICIAL STATEMENT, A CONTINUING
DISCLOSURE AGREEMENT, AN ESCROW AGREEMENT, A BOND
COUNSEL ENGAGEMENT LETTER AND FINANCIAL ADVISORY
SERVICES AGREEMENT AND OTHER AGREEMENTS AND
DOCUMENTS IN CONNECTION THEREWITH; MAKING FINDINGS
WITH RESPECT TO THE ISSUANCE OF SUCH BONDS; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the Town of Trophy Club, Texas (the “Town”), pursuant to and in
accordance with the terms, provisions and requirements of the Public Improvement
District Assessment Act, Chapter 372, Texas Local Government Code (the “PID Act”),
has previously established the “Town of Trophy Club Public Improvement District No. 1”
(the “District”), pursuant to Resolution No. 2007-08 adopted by the Town Council of the
Town (the “Town Council”) on May 7, 2007; and
WHEREAS, pursuant to the PID Act, the Town Council published notice and held
a public hearing on October 15, 2007 regarding the levy of special assessments within
the District and at that public hearing adopted Ordinance No. 2007-29 (the “Assessment
Ordinance”); and
WHEREAS, in the Assessment Ordinance, the Town Council approved and
accepted the “Service and Assessment Plan” (as defined and described in the
Assessment Ordinance, the “Service and Assessment Plan”) relating to the District and
levied the “Assessments” (as defined in the Assessment Ordinance, the “Assessments”)
against the “Assessment Roll” (as defined and described in the Assessment Ordinance,
the “Assessment Roll”). Capitalized terms used in this preamble and not otherwise
defined shall have the meaning assigned thereto in the Service and Assessment Plan;
and
WHEREAS, the Town issued its revenue bonds payable from the Assessments
titled “Town of Trophy Club Special Assessment Revenue Bonds, Series 2007 (The
Highlands at Trophy Club Project) (the “Refunded Bond Candidates”), and those
Refunded Bond Candidates designated by the Authorized Officer in the Pricing
Certificate to be refunded are herein referred to as the “Refunded Bonds”; and
WHEREAS, the Town Council desires to issue its refunding bonds to refund the
Refunded Bonds in accordance with Chapter 1207, Texas Government Code, as
Town Council Page 8 of 100 Meeting Date: November 23, 2015
amended, and the PID Act, such bonds to be entitled “Trophy Club Public Improvement
District No. 1 Special Assessment Revenue Refunding Bonds, Series 2015” (the
“Bonds”), with such Bonds being payable solely from Assessments; and
WHEREAS, the Town Council has found and determined that it is in the best
interests of the citizens of the Town to issue the Bonds in a single series, such series to
be payable solely from and secured by the Assessments; and
WHEREAS, the Town Council has found and determined to (i) approve the
issuance of the Bonds to refund the Refunded Bonds, (ii) approve the form, terms and
provisions of an indenture of trust securing the Town’s bonds authorized hereby, (iii)
approve the form, terms and provisions of a Bond Purchase Contract between the Town
and the purchasers of the Bonds, (iv) approve an Official Statement, (v) approve an
Escrow Agreement between the Town and The Bank of New York Mellon Trust
Company, N.A., (vi) approve a Continuing Disclosure Agreement relating to the Bonds,
and (vii) approving a bond counsel engagement letter and a financial advisory
agreement; and
WHEREAS, Chapter 1207 authorizes the Town to enter into an escrow
agreement with a commercial bank with respect to the safekeeping, investment,
reinvestment, administration and disposition of any such deposit, upon such terms and
conditions as the Town and such bank may agree, provided that such deposits may be
invested and reinvested only in investments permitted under Chapter 1207 and the
ordinances authorizing the Refunded Bonds, and which shall mature and bear interest
payable at such times and in such amounts as will be sufficient to provide for the
scheduled payment or prepayment of the Refunded Bonds; and
WHEREAS, the Escrow Agreement hereinafter authorized constitutes an escrow
agreement of the kind authorized and permitted by said Chapter 1207; and
WHEREAS, the Town Council desires to delegate to the Authorized Officer,
pursuant to Chapter 1207, Texas Government Code, as amended, and the parameters
of this Ordinance, the authority to approve the amount, the number of series, the
interest rate, the price and terms of the Bonds authorized hereby and to otherwise take
such actions as are necessary and appropriate to effect the sale of the Bonds and to
select the specific maturities or series of Refunded Bond Candidates to be refunded;
WHEREAS, the Town Council hereby finds and determines that refunding of the
Refunded Bonds contemplated in this Ordinance will benefit the Town by providing a
debt service savings in an amount to be certified in the Pricing Certificate, and that such
benefit is sufficient consideration for the refunding of the Refunded Bonds; and
WHEREAS, the meeting at which this Ordinance is considered is open to the
public as required by law, and the public notice of the time, place and purpose of said
meeting was given as required by Chapter 551, Texas Government Code, as amended;
and
ORD 2015-42 Page 2 of 9
Town Council Page 9 of 100 Meeting Date: November 23, 2015
NOW, THEREFORE BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF TROPHY CLUB, TEXAS, THAT:
SECTION 1.
FINDINGS
The findings and determinations set forth in the preamble hereof are hereby
incorporated by reference for all purposes as if set forth in full herein.
SECTION 2.
APPROVAL OF ISSUANCE OF BONDS AND INDENTURE OF TRUST
(a) The issuance of the Bonds in the not to exceed principal amount of $ 26,155,000
for the purpose of providing funds for (i) refunding the Refunded Bonds;
(ii) funding portions of a reserve fund for payment of principal and interest on the
Bonds and for funding a prepayment/delinquency fund as provided in the
Indenture (defined below), and (iii) paying the costs of issuing the Bonds, is
hereby authorized and approved.
(b) The Bonds shall be issued and secured under an indenture of trust, the form,
terms and provisions of which are hereby approved in the substantially final form
presented at this meeting of that certain Indenture of Trust (the “Indenture”),
dated as of December 1, 2015, between the Town and The Bank of New York
Mellon Trust Company, N.A., as trustee (the “Trustee”), with such changes as
may be necessary or desirable to carry out the intent of this Ordinance and as
approved by the Mayor of the Town, such approval to be evidenced by the
execution and delivery of the Indenture. The Mayor of the Town is hereby
authorized and directed to execute the Indenture and the Town Secretary is
hereby authorized and directed to attest such signature of the Mayor.
(c) The Bonds shall be dated, shall mature on the date or dates and in the principal
amounts, shall bear interest, shall be subject to redemption and shall have such
other terms and provisions as set forth in the Pricing Certificate. The Bonds shall
be in substantially the form set forth in the Indenture, as modified by the Pricing
Certificate, with such insertions, omissions and modifications as may be required
to conform the form of bond to the actual terms of the Bonds. The Bonds shall
be payable from and secured solely by the Assessments and other assets of the
“Trust Estate” (as defined in the Indenture) pledged to such series, and shall
never be payable from ad valorem taxes.
(d) The Bonds shall be sold at negotiated sale to the Underwriters in accordance
with the terms of this Ordinance, provided that all of the conditions set forth in
Exhibit A can be satisfied. As authorized by Chapter 1207, Texas Government
Code, as amended, the Authorized Officer (as identified below) is authorized to
act on behalf of the Town upon determining that the conditions set forth in Exhibit
ORD 2015-42 Page 3 of 9
Town Council Page 10 of 100 Meeting Date: November 23, 2015
A can be satisfied, in selling and delivering the Bonds and carrying out the other
procedures specified in this Ordinance, including determining whether to acquire
bond insurance for the Bonds, the aggregate principal amount of the Bonds,
whether the Bonds shall be in one or more series from time to time, and price at
which each of the Bonds will be sold, the aggregate principal amount of the
Refunded Bonds and their redemption dates, the number and designation of
series of Bonds to be issued, whether the Bonds will be taxable or tax-exempt,
the issuance of current interest bonds and capital appreciation bonds, the form in
which the Bonds shall be issued, 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 first interest payment date, the initial date from which
interest will accrue, the dates, prices and terms upon and at which the Bonds
shall be subject to redemption prior to maturity at the option of the Town and
shall be subject to mandatory sinking fund redemption and extraordinary
mandatory redemption, and all other matters relating to the issuance, sale and
delivery of the Bonds, all of which shall be specified in the Pricing Certificate.
(e) The authority granted to the Authorized Officer under this Section shall expire at
5:00 p.m., 180 days from the date of this Ordinance, unless otherwise extended
by the Town Council by separate action.
(f) Any finding or determination made by the Authorized Officer relating to the
issuance and sale of the Bonds and the execution of the Purchase Agreement in
connection therewith shall have the same force and effect as a finding or
determination made by the Town Council.
SECTION 3.
SALE OF BONDS; APPROVAL OF BOND PURCHASE CONTRACT
The Authorized Officer is hereby authorized and directed to execute and deliver
one or more bond purchase agreements (the “Purchase Agreement”), which Purchase
Agreement shall be in the form approved by the Authorized Officer. The Authorized
Officer is hereby authorized and directed to approve the final terms and provisions of
the Purchase Agreement in accordance with the terms of the Pricing Certificate and this
Ordinance, which final terms shall be determined to be the most advantageous
reasonably attainable by the Town , such approval and determination being evidenced
by its execution thereof by the Authorized Officer. All officers, agents and
representatives of the Town are hereby authorized to do any and all things necessary or
desirable to satisfy the conditions set out therein and to provide for the issuance and
delivery of the Bonds. The Initial Bond shall initially be registered in the name of the
Representative of the Underwriters or such other entity as may be specified in the
Purchase Agreement.
ORD 2015-42 Page 4 of 9
Town Council Page 11 of 100 Meeting Date: November 23, 2015
SECTION 4.
OFFICIAL STATEMENT
The form and substance of the Preliminary Official Statement for the Bonds and
any addenda, supplement or amendment thereto and the final Official Statement
presented to and considered at this meeting are hereby in all respects approved and
adopted. The Mayor is hereby authorized and directed to execute such Official
Statement with such changes and alterations therein as the Mayor may approve, such
approval to be conclusively evidenced by such execution thereof. The Official Statement
as thus approved, executed and delivered, with such appropriate variations as shall be
approved by the Mayor of the Town and the Underwriters, may be used by the
Underwriters in the offering and sale of the Bonds. The Town Secretary is hereby
authorized and directed to include and maintain a copy of the Preliminary Official
Statement and Official Statement and any addenda, supplement or amendment thereto
thus approved among the permanent records of this meeting. The use and distribution
of the Preliminary Official Statement and the Official Statement in the offering of the
Bonds is hereby ratified, approved and continued.
SECTION 5.
CONTINUING DISCLOSURE AGREEMENT
The form, terms and provisions of that certain Continuing Disclosure Agreement
(the “Continuing Disclosure Agreement”) dated as of December 1, 2015 between the
Town and the Trustee and/or David Taussig & Assoc. is hereby authorized and
approved in substantially final form presented at this meeting and the Mayor of the
Town is hereby authorized and directed to execute and deliver such Continuing
Disclosure Agreement with such changes as may be required to carry out the purpose
of this Ordinance and approved by the Mayor, such approval to be evidenced by the
execution thereof. The Mayor’s signature on the Agreement may be attested by the
Town Secretary.
SECTION 6.
REDEMPTION OF REFUNDED BONDS; APPROVAL OF ESCROW AGREEMENTS
(a) The Refunded Bonds selected from the Refunded Bond Candidates identified in
Schedule I attached hereto, are hereby called for redemption on the date, in the
principal amounts and at a redemption price equal to the principal amount thereof
plus interest accrued thereon to the redemption date as set forth in the Pricing
Certificate.
(b) The Town Secretary is hereby authorized and directed to cause a copy of this
Ordinance to be delivered to the paying agent/registrar for the Refunded Bonds,
the delivery of which shall constitute notice of redemption and notice of
defeasance to such paying agent/registrar.
ORD 2015-42 Page 5 of 9
Town Council Page 12 of 100 Meeting Date: November 23, 2015
(c) The discharge and defeasance of the Refunded Bonds shall be effectuated
pursuant to the terms and provisions of an Escrow Agreement (the “Escrow
Agreement”), to be entered into by and between the Town and the Escrow Agent,
which Escrow Agreement shall contain terms and provisions to be approved by
the Authorized Officer including terms and provisions for the purposes of (i)
carrying out the program designed for the Town, (ii) minimizing the Town’s costs
of refunding, (iii) complying with all applicable laws and regulations relating to the
refunding of the Refunded Bonds, (iv) carrying out the other intents and purposes
of this Ordinance and (v) complying with the terms set forth in the Pricing
Certificate. The execution and delivery by the Mayor of the Escrow Agreement, if
necessary, is hereby authorized and approved. The signature of the Mayor may
be attested by the Town Secretary.
(d) The Authorized Officer is hereby authorized to subscribe for, agree to purchase,
and purchase securities permitted by applicable law, in such amounts and
maturities and bearing interest at such rates as may be provided for in the
Escrow Agreement, and to execute any and all subscriptions, purchase
agreements, commitments, letters of authorization and other documents
necessary to effectuate the foregoing, and any actions heretofore taken for such
purpose are hereby ratified and approved.
(e) The paying agent/registrar for the Refunded Bonds is hereby authorized and
directed to give notice of deposit and redemption with respect to the Refunded
Bonds in the manner specified in the ordinance authorizing the issuance of such
Refunded Bonds.
SECTION 7.
ADD ITIONAL ACTIONS
(a) The Mayor, the Town Manager and each other officer, employee and agent of
the Town are hereby authorized and directed to take any and all actions on
behalf of the Town necessary or desirable to carry out the intent and purposes of
this Ordinance and to issue the Bonds in accordance with the terms of this
Ordinance, The Mayor, the Town Manager and each other officer, employee and
agent of the Town are hereby authorized and directed to execute and deliver any
and all certificates, agreements, notices, instruction letters, requisitions, and
other documents which may be necessary or advisable in connection with the
sale, issuance and delivery of the Bonds and the carrying out of the purposes
and intent of this Ordinance. Further, in connection with the submission of the
record of proceedings for the Bonds to the Attorney General of the State of
Texas for examination and approval of such Bonds, the appropriate officer of the
Town is hereby authorized and directed to issue a check of the Town payable to
the Attorney General of the State of Texas as a nonrefundable examination fee in
the amount required by Chapter 1202, Texas Government Code (such amount to
be the lesser of (i) 1/10th of 1% of the principal amount of the Bonds or (ii)
$9,500).
ORD 2015-42 Page 6 of 9
Town Council Page 13 of 100 Meeting Date: November 23, 2015
(b) The Mayor is hereby authorized and directed to execute the engagement letter
with Bracewell & Giuliani LLP, setting forth such firm’s duties as Bond Counsel
for the Corporation, and such engagement letter and the terms thereof in the
form presented at this meeting is hereby approved and accepted. The Mayor is
hereby also authorized and directed to execute the financial advisory services
agreement with Samco Capital Markets, Inc. for financial advisory services
related to the issuance of the Bonds, and such agreement and the terms thereof
in the form presented at this meeting is hereby approved and accepted.
SECTION 8.
APPOINTMENT OF AUTHORIZED OFFICER
The Town Manager or the Town Assistant Manager/Chief Financial Officer are
each appointed, acting individually, as an Authorized Officer for purposes of this
Ordinance and the Indenture.
SECTION 9.
EFFECTIVE DATE
This Ordinance shall take effect immediately upon its adoption by the Town
Council of the Town.
PASSED AND APPROVED by the Town Council of the Town of Trophy Club,
Texas, this 23rd day of November, 2015.
C. Nick Sanders, Mayor
Town of Trophy Club, Texas
[SEAL]
ATTEST:
Holly Fimbres, Town Secretary
Town of Trophy Club, Texas
APPROVED TO AS FORM:
Patricia A. Adams , Town Attorney
Town of Trophy Club, Texas
Julie Partain, Bond Counsel
Town of Trophy Club, Texas
ORD 2015-42 Page 7 of 9
Town Council Page 14 of 100 Meeting Date: November 23, 2015
SCHEDULE I
REFUNDED BOND CANDIDATES
All outstanding Town of Trophy Club Public Improvement District No. 1 Special
Assessment Revenue Bonds, Series 2007 (The Highlands at Trophy Club Project)
ORD 2015-42 Page 8 of 9
Town Council Page 15 of 100 Meeting Date: November 23, 2015
EXHIBIT A
SALE PARAMETERS
In accordance with Section 2 of the Ordinance, the following conditions with
respect to the Bonds must be satisfied in order for the Authorized Officer to act on
behalf of the Town in selling and delivering the Bonds to the Underwriters:
(a) the Bonds shall not bear interest at a rate greater than the maximum rate
authorized by Chapter 1204, Texas Government Code, as amended;
(b) the aggregate principal amount of the Bonds authorized to be issued for the
purposes described in Section 2 shall not exceed the limits described in that
Section, and the Bonds sold for the purposes of refunding the Refunded Bonds
shall be in an amount sufficient, in combination with the net premium from the
sale of the Bonds, plus other available funds of the Town, if any, to provide for
the refunding of the Refunded Bonds to be selected from the Refunded Bond
Candidates identified in Schedule I hereto and the costs and expenses of
issuance of the Bonds, including underwriter’s discount;
(c) the refunding of the Refunded Bonds shall result in a net present value savings
of not less than 15%; and
(d) the maximum maturity for the Bonds shall not be later than December 1, 2037.
ORD 2015-42 Page 9 of 9
Town Council Page 16 of 100 Meeting Date: November 23, 2015
INDENTURE OF TRUST
By and Between
THE TOWN OF TROPHY CLUB, TEXAS
And
The Bank of New York Mellon Trust Company, N.A., as Trustee
DATED AS OF December 1, 2015
SECURING
$__________
TOWN OF TROPHY CLUB PUBLIC IMPROVEMENT DISTRICT NO. 1,
SPECIAL ASSESSMENT REVENUE REFUNDING BONDS, SERIES 2015
(TOWN OF TROPHY CLUB, TEXAS)
#5015735.11
Town Council Page 17 of 100 Meeting Date: November 23, 2015
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS, FINDINGS AND INTERPRETATION
Section 1.1 Definitions. .......................................................................................................... 2
Section 1.2 Finding. ............................................................................................................... 9
Section 1.3 Table of Contents, Titles and Headings. ............................................................... 9
Section 1.4 Interpretation. ...................................................................................................... 9
ARTICLE II
THE BONDS
Section 2.1 Security for the Bonds. ......................................................................................... 9
Section 2.2 Security Interest. ................................................................................................ 10
Section 2.3 Limited Obligations. .......................................................................................... 10
Section 2.4 Authorization for Indenture. ............................................................................... 10
Section 2.5 Contract with Owners and Trustee. .................................................................... 10
ARTICLE III
AUTHORIZATION; GENERAL TERMS AND
PROVISIONS REGARDING THE BONDS
Section 3.1 Authorization. .................................................................................................... 10
Section 3.2 Date, Denomination, Maturities, Numbers and Interest. ..................................... 11
Section 3.3 Conditions Precedent to Delivery of Bonds. ....................................................... 12
Section 3.4 Medium, Method and Place of Payment. ............................................................ 12
Section 3.5 Execution and Registration of Bonds. ................................................................. 13
Section 3.6 Ownership.......................................................................................................... 14
Section 3.7 Registrat ion, Transfer and Exchange. ................................................................. 14
Section 3.8 Cancellation. ...................................................................................................... 15
Section 3.9 Temporary Bonds............................................................................................... 15
Section 3.10 Replacement Bonds............................................................................................ 16
Section 3.11 Book-Entry Only System. .................................................................................. 17
Section 3.12 Successor Securities Depository Transfer Outside Book-Entry-Only .................. 17
Section 3.13 Payments to Cede & Co. .................................................................................... 18
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
Section 4.1 Limitation on Redemption. ................................................................................. 18
Section 4.2 Mandatory Sinking Fund Redemption. ............................................................... 18
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Section 4.3 Optional Redemption. ........................................................................................ 19
Section 4.4 Extraordinary Mandatory Redemption. .............................................................. 19
Section 4.5 Partial Redemptio n. ............................................................................................ 19
Section 4.6 Notice of Redemption to Owners. ...................................................................... 20
Section 4.7 Payment Upon Redemption. ............................................................................... 20
Section 4.8 Effect of Redemption. ........................................................................................ 21
ARTICLE V
FORM OF THE BONDS
Section 5.1 Form Generally. ................................................................................................. 21
Section 5.2 Form of the Current Interest Bonds. ................................................................... 21
Section 5.3 Form of the Capital Appreciation Bonds. ........................................................... 29
Section 5.4 CUSIP Registration. ........................................................................................... 35
Section 5.5 Legal Opinion. ................................................................................................... 35
Section 5.6 Statement of Insurance. ...................................................................................... 35
ARTICLE VI
FUNDS AND ACCOUNTS
Section 6.1 Establishment of Funds and Accounts. ............................................................... 35
Section 6.2 Initial Depos its to Funds..................................................................................... 36
Section 6.3 Pledged Revenue Fund. ...................................................................................... 36
Section 6.4 Bond Fund. ........................................................................................................ 38
Section 6.5 Redemption Fund. .............................................................................................. 38
Section 6.6 Reserve Fund. .................................................................................................... 38
Section 6.7 Prepayment/Delinquency Fund. ......................................................................... 39
Section 6.8 Rebate Fund: Rebatable Arbitrage. ..................................................................... 39
Section 6.9 Administrative Fund. ......................................................................................... 40
Section 6.10 Investment of Funds. .......................................................................................... 41
Section 6.11 Security of Funds. .............................................................................................. 42
ARTICLE VII
COVENANTS
Section 7.1 Confirmation of Assessments. ............................................................................ 42
Section 7.2 Collection and Enforcement of Assessments. ..................................................... 42
Section 7.3 Against Encumbrances. ...................................................................................... 42
Section 7.4 Records, Accounts, Accounting Reports. ............................................................ 43
Section 7.5 Provisions Concerning Federal Income Tax Exclusion. ...................................... 43
Section 7.6 No Private Use or Payment and No Private Loan Financing. .............................. 43
Section 7.7 No Federal Guaranty. ......................................................................................... 44
Section 7.8 No Hedge Bonds. ............................................................................................... 44
Section 7.9 No -Arbitrage. ..................................................................................................... 44
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Section 7.10 Arbitrage Rebate. ............................................................................................... 44
Section 7.11 Information Reporting. ....................................................................................... 45
Section 7.12 Record Retention. .............................................................................................. 45
Section 7.13 Registration. ....................................................................................................... 45
Section 7.14 Deliberate Actions. ............................................................................................ 45
Section 7.15 Continuing Obligation. ....................................................................................... 45
ARTICLE VIII
LIABILITY OF TOWN
ARTICLE IX
THE TRUSTEE
Section 9.1 Trustee as Registrar and Paving Agent. .............................................................. 47
Section 9.2 Trustee Entitled to Indemnity. ............................................................................ 47
Section 9.3 Responsibilities of the Trustee............................................................................ 47
Section 9.4 Property Held in Trust. ....................................................................................... 48
Section 9.5 Trustee Protected in Relying on Certain Documents; Other Rights of the
Trustee. .............................................................................................................. 48
Section 9.6 Compensation. ................................................................................................... 49
Section 9.7 Permitted Acts. .................................................................................................. 49
Section 9.8 Resignation of Trustee. ...................................................................................... 49
Section 9.9 Removal of Trustee. ........................................................................................... 50
Section 9.10 Successor Trustee............................................................................................... 50
Section 9.11 Transfer of Rights and Property to Successor Trustee. ........................................ 51
Section 9.12 Merger, Conversion or Consolidation of Trustee. ............................................... 51
Section 9.13 Trustee To File Continuation Statements. ........................................................... 51
Section 9.14 Construction of Indenture. .................................................................................. 52
ARTICLE X
MODIFICATION OR AMENDMENT OF THIS INDENTURE
Section 10.1 Amendments Permitted. ..................................................................................... 52
Section 10.2 Owners’ Meetings. ............................................................................................. 53
Section 10.3 Procedure for Amendment with Written Consent of Owners. ............................. 53
Section 10.4 Effect of Supplemental Indenture. ...................................................................... 54
Section 10.5 Endorsement or Replacement of Bonds Issued After Amendments. .................... 54
Section 10.6 Amendatory Endorsement of Bonds. .................................................................. 54
Section 10.7 Waiver of Default. ............................................................................................. 54
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ARTICLE XI
DEFAULT AND REMEDIES
Section 11.1 Events of Default. .............................................................................................. 54
Section 11.2 Immediate Remedies for Default. ....................................................................... 55
Section 11.3 Restriction on Owner’s Action. .......................................................................... 56
Section 11.4 Application of Revenues and Other Moneys After Default. ................................ 57
Section 11.5 Effect of Waiver. ................................................................................................ 57
Section 11.6 Evidence of Ownership of Bonds. ...................................................................... 58
Section 11.7 No Acceleration. ................................................................................................ 58
Section 11.8 Mailing of Notice. .............................................................................................. 58
Section 11.9 Exclusion of Bonds. ........................................................................................... 58
ARTICLE XII
GENERAL COVENANTS AND REPRESENTATIONS
Section 12.1 Representations as to Pledged Revenues. ........................................................... 59
Section 12.2 Accounts, Periodic Reports and Certificates. ...................................................... 59
Section 12.3 General. ............................................................................................................. 59
ARTICLE XIII
SPECIAL COVENANTS
Section 13.1 Further Assurances Due Performance. ................................................................ 60
Section 13.2 Other Obligations or Other Liens. ...................................................................... 60
Section 13.3 Books of Record. ............................................................................................... 61
ARTICLE XIV
PAYMENT AND CANCELLATION OF THE BONDS
AND SATISFACTION OF THE INDENTURE
Section 14.1 Trust Irrevocable. ............................................................................................... 61
Section 14.2 Satisfaction of Indenture. ................................................................................... 61
Section 14.3 Bonds Deemed Paid. .......................................................................................... 61
ARTICLE XV
REDEMPTION OF REFUNDED BONDS; APPROVAL OF ESCROW AGREEMENT;
PURCHASE OF ESCROWED SECURITIES
Section 15.1 Redemption of Refunded Bonds. ........................................................................ 62
Section 15.2 Approval of Escrow Agreement. ........................................................................ 62
Section 15.3 Purchase of Securities. ....................................................................................... 63
Section 15.4 Notice of Deposit and Redemption. .................................................................... 63
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ARTICLE XVI
MISCELLANEOUS
Section 16.1 Additional Bonds. .............................................................................................. 63
Section 16.2 Benefits of Indenture Limited to Parties. ............................................................ 63
Section 16.3 Successor is Deemed Included in All References to Predecessor. ....................... 63
Section 16.4 Execution of Documents and Proof of Ownership by Owners. ........................... 63
Section 16.5 Waiver of Personal Liability............................................................................... 64
Section 16.6 Notices to and Demands on Town and Trustee. .................................................. 64
Section 16.7 Partial Invalidity. ............................................................................................... 65
Section 16.8 Applicable Laws. ............................................................................................... 65
Section 16.9 Payment on Business Day. ................................................................................. 65
Section 16.10 Counterparts....................................................................................................... 65
Section 16.11 Trustee’s Electronic Means Procedures and Requirements. ................................ 65
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INDENTURE OF TRUST
THIS INDENTURE OF TRUST, dated as of December 1, 2015, is by and between the
TOWN OF TROPHY CLUB, TEXAS (the “Town”), and THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A., as trustee (together with its successors, the “Trustee”).
Capitalized terms used in the preambles, recitals and granting clauses and not otherwise defined
shall have the meanings assigned thereto in Article I.
WHEREAS, the Town Council desires to issue its refunding bonds in accordance with
Chapter 1207, Texas Government Code, as amended, and the PID Act, such bonds to be entitled
“Trophy Club Public Improvement District No. 1 Special Assessment Revenue Refunding
Bonds, Series 2015 (Town of Trophy Club, Texas)” (the “Bonds”) such Bo nds being payable
solely from Assessments;
WHEREAS, the Trustee has agreed to accept the trusts herein created upon the terms set
fort h in this Indenture;
NOW, THEREFORE, the Town, in consideration of the foregoing premises and
acceptance by the Trustee of the trusts herein created, of the purchase and acceptance of the
Bonds by the Owners thereof, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, does hereby GRANT, CONVEY, PLEDGE,
TRANSFER, ASSIGN and DELIVER to the Trustee for the benefit of the Owners, a security
interest in all of the moneys, rights and properties described in the Granting Clauses hereof, as
follows (collectively, the “Trust Estate”):
FIRST GRANTING CLAUSE
The Pledged Revenues, as herein defined, and all moneys and investments held in
the Pledged Funds, including any contract or any evidence of indebtedness related
thereto or other rights of the Town to receive any of such moneys or investments,
whether now existing or hereafter coming into existence, and whether now or
hereafter acquired; and
SECOND GRANTING CLAUSE
Any and all other property or money of every na me and nature which is, from
time to time hereafter by delivery or by writing of any kind, conveyed, pledged,
assigned or transferred, to the Trustee as additional security hereunder by the
Town or by anyone on its behalf or with its written consent, and t he Trustee is
hereby authorized to receive any and all such property or money at any and all
times and to hold and apply the same subject to the terms thereof;
TO HAVE AND TO HOLD the Trust Estate, whether now owned or hereafter acquired,
unto the Trustee and its successors or assigns;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the benefit
of all present and future Owners of the Bonds from time to time issued under and secured by this
Indenture, and for enforcement of the payment of the Bonds in accordance with their terms, and
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for the performance of and compliance with the obligations, covenants and conditions of this
Indenture;
PROVIDED, HOWEVER, if the Town or its assigns, shall well and truly pay, or cause to
be paid, the principal or Redemption Price of and the interest on the Bonds at the times and in the
manner stated in the Bonds, according to the true intent and meaning thereof, then this Indenture
and the rights hereby granted shall cease, terminate and be void; otherwise this Indenture is to be
and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that all
Bonds issued and secured hereunder are to be issued, authenticated and delivered and the Trust
Estate hereby created, assigned, and pledged is to be dealt with and disposed of under, upon and
subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the Town has agreed and covenanted, and does hereby agree and
covenant, with the Trustee and with the respective Owners from time to time of the Bonds as
follows:
ARTICLE I
DEFINITIONS, FINDINGS AND INTERPRETATION
Section 1.1 Definitions.
Unless otherwise expressly provided or unless the context clearly requires otherwise in
this I ndenture, the following terms shall have the meanings specified below:
“Accreted Value” means, with respect to the Capital Appreciation Bonds, the original
principal amount of such Bond plus the initial premium, if any, paid therefore, with interest
thereon compounded semiannually, as set forth in the Pricing Certificate.
“Administrative Fund” means the fund established pursuant to Section 6.1 and
administered as provided in Section 6.9.
“Administrator” means the administrator of the PID and the Service and Assessment
Plans . Such Administrator may be a third party hired by the Town or such functions may be
performed by the Town staff.
“Annual Collection Costs” shall have the meaning assigned to it in the Service and
Assessment Plan.
“Annual Debt Service” means, for each Bond Year, the sum of (i) the interest due on the
Outstanding Bonds in such Bond Year, assuming that the Outstanding Bonds are retired as
scheduled (including by reason of Sinking Fund Installments), and (ii) the principal amount of
the Outstanding Bonds due in such Bond Year (including any Sinking Fund Installments due in
such Bond Year).
“Annual Installment ” means, with respect to each Assessed Parcel, each annual payment
of the Assessment as shown on the Assessment Roll attached as Exhibit D to the Service and
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Assessment Plan or an Annual Service Plan Update as defined in the Service and Assessment
Plan.
“Applicable Laws” means the PID Act, Chapter 1207, Texas Government Code, as
amended, and all other laws or statutes, rules or regulations, and any amendments thereto, of the
State of Texas or of the United States, by which the Town and its powers, securities, operations
and procedures are, or may be, governed or from which its powers may be derived.
“Assessed Parcel” means each respective parcel of land located within the Town against
which an Assessment is levied by the Assessment Ordinance in accordance with the Service and
Assessment Plan.
“Assessment Ordinance” means the separate ordinances adopted by the Town that levied
the Assessments on the Assessed Parcels.
“Assessment Roll” means the documents attached to the Service and Assessment Plan
showing the total amount of the Assessment against each Assessed Parcel, as updated, modified
or amended from time to time in accordance with the terms of the Service and Assessment Plan
and the PID Act.
“Assessments” means the aggregate assessments shown on the Assessment Roll. The
singular of such term means the assessment levied against an Assessed Parcel as shown on the
Assessment Roll.
“Authorized Denomination” means $1,000 or any integral multiple thereof with respect
to the Current Interest Bonds and $1,000 Maturity Amount of Capital Appreciation Bonds.
“Authorized Officer” means the Town Manager or the Assistant Town Manager-CFO,
acting individually.
“Bond” means any of the Bonds.
“Bond Counsel” means any attorney or firm of attorneys designated by the Town that are
nationally recognized for expertise in rendering opinions as to the legality and tax-exempt status
of securities issued by public entities. The firm of Bracewell & Giuliani LLP is initially
designated as Bond Counsel by the Town.
“Bond Date” means the date designated as the initial date of the Bonds by Section 3.2(a)
of this Indenture.
“Bond Fund” means the fund established pursuant to Section 6.1 and administered as
provided in Section 6.4.
“Bond Ordinance” means the Ordinance adopted by the Town on November 23, 2015
authorizing the issuance of the Bonds pursuant to this Indenture.
“Bond Year” means the one-year period beginning on January 1 in each year and ending
on the day prior to January 1 in the same year.
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“Bonds” means the Town’s bonds authorized to be issued by Section 3.1 of this Indenture
entitled “Trophy Club Public Improvement District No. 1 Special Assessment Revenue
Refund ing Bonds, Series 2015 (Town of Trophy Club, Texas)” and in the event the Town issues
Refunding Bonds pursuant to Section 13.2 hereof, the term “Bonds” shall include such
Refunding Bonds.
“Business Day” means any day other than a Saturday, Sunday or legal holiday in the
State of Texas observed as such by the Town or the Trustee.
“Capital Appreciation Bonds” means, collectively, the Bonds designated as Capital
Appreciation Bonds in the Pricing Certificate, if any, and with respect to which interest is
compounded semiannually and is payable only at Maturity.
“Closing Date” means the date of the initial delivery of and payment for the Bonds.
“Closing Instructions” means the instruction letter prepared by the Town’s financial
advisor on the Closing Date that disburses the proceeds of the Bonds to the various funds and
accounts set forth in this Indenture.
“Code” means the Internal Revenue Code of 1986, as amended, including applicable
regulations, published rulings and court decisions.
“Costs” means the costs of the Authorized Improvement s as set forth in the Service and
Assessment Plan.
“Current Interest Bonds” means, collectively, the Bonds designated as Current Interest
Bonds in the Pricing Certificate and with respect to which interest is payable on each Interest
Payment Date.
“Debt Service” means, collectively, all amounts due and payable with respect to the
Bonds representing the principal, premium, if any, and the interest due on the Current Interest
Bonds and the Maturity Amount of the Capital Appreciation Bonds, in each case, payable at the
times and in the manner provided herein and in the Pricing Certificate.
“Defeasance Securities” means Investment Securities then authorized by applicable law
for the investment of funds to defease public securities.
“Del inquent Collection Costs” mean the costs related to the foreclosure on an Assessed
Parcel and the costs of collection of a delinquent Assessment, including penalties and reasonable
attorney’s fees actually paid, but excluding amounts representing interest and penalty interest.
“Delinquent Penalties and Interest” means any delinquent interest and penalty interest on
a delinquent Assessment.
“Designated Payment/Transfer Office” means (1) with respect to the initial Paying
Agent/Registrar named in this Indent ure, the transfer/payment office located in Dallas, Texas, or
such other location designated by the Paying Agent/Registrar and (ii) with respect to any
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successor Paying Agent/Registrar, the office of such successor designated and located as may be
agreed upon by the Town and such successor.
“DTC” shall mean The Depository Trust Company of New York, New York, or any
successor securities depository.
“DTC Participant” shall mean brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations on whose behalf DTC was created to hold securities
to facilitate the clearance and settlement of securities transactions among DTC Participants.
“Escrow Agent” means the Escrow Agent designated in the Pricing Certificate, or any
successor thereto.
“Escrow Agreement” means the escrow agreement by and between the Town and the
Escrow Agent relating to the Refunded Bonds.
“Escrow Fund” means the fund established by the Escrow Agreement to hold cash and
securities for the payment of debt service on the Refunded Bonds.
“Escrow Securities” means (1) direct noncallable obligations of the United States,
including obligations that are unconditionally guaranteed by the United States; (2) noncallable
obligations of an agency or instrumentality of the United States, including obligations that are
unconditionally guaranteed or insured by the agency or instrumentality and that, on the date of
hereof, are rated as to investment quality by a nationally recognized investment rating firm not
less than “AAA” or its equivalent; and (3) noncallable obligations of a state or an agency or a
county, municipality, or other political subdivision of a state that have been refunded and that, on
the date hereof, are rated as to investment quality by a nationally recognized investment rating
firm not less than “AAA” or its equivalent.
“Federal Tax Certificate” means the Federal Tax Certificate delivered on the Closing
Date for the Bonds setting forth the facts, estimates and circumstances in existence on the
Closing Date which establish that it is not expected that the proceeds of the Bonds will be used in
a manner that would cause the interest on such Bonds to be included in the gross income of the
Owners thereof for Federal income tax purposes.
“Foreclosure Proceeds” means the proceeds, including interest and penalty interest,
received by the Town from the enforcement of the Assessments against any Assessed Parcel or
Assessed Parcels, whether by foreclosure of lien or otherwise, but excluding and net of all
Delinquent Collection Costs as determined by the Town pursuant to the Service and Assessment
Plan.
“Fund” means any of the funds established pursuant to Section 6.1 of this Indenture.
“Indenture” means this Indenture of Trust as originally executed or as it may be from
time to time supplemented or amended by one or more indentures supplemental hereto and
entered into pursuant to the applicable provisions hereof.
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“Initial Bonds” means the Initial Capital Appreciation Bond and the Initial Current
Interest Bond set forth in Section 5.2 of this Indenture
“Initial Capital Appreciation Bond” means the Initial Capital Appreciation Bond
authorized by Section 3.02.
“Initial Current Interest Bond” means the Initial Current Interest Bond authorized by
Section 3.02.
“Interest Payment Date” means with respect to the Current Interest Bonds, the date or
dates upon which interest on the Bonds is scheduled to be paid until their respective dates of
maturity or prior redemption, such dates being on as set forth in the Pricing Certificate.
“Investment Securities” means those authorized investments described in the Public
Funds Investment Act, Chapter 2256, Government Code, as amended; and provided further
investments are, at the time made, included in and authorized by the Town’s official invest ment
policy as approved by the Town Council from time to time.
“Maturity” means the date on which the principal of the Current Interest Bonds and the
Maturity Amount of the Capital Appreciation Bonds become due and payable according to the
terms thereof, whether at Stated Maturity or by proceedings for prior redemption.
“Maturity Amount” means, with respect to the Capital Appreciation Bonds, the original
principal amount thereof plus the initial premium, if any, paid therefor, plus interest accreted and
compounded thereon, as set forth herein and in the Pricing Certificate, and payable at Maturity.
“Maximum Annual Debt Service” means the largest Annual Debt Service for any Bond
Year after the calculation is made through the final maturity date of any Outstanding Bonds.
“Outstanding” means, as of any particular date when used with reference to Bonds, all
Bonds authenticated and delivered under this Indenture except (i) any Bond that has been
canceled by the Trustee (or has been delivered to the Trustee for cancellation) at or before such
date, (ii) any Bond for which the payment of the principal or Redemption Price of and interest on
such Bond shall have been made as provided in Article IV, and (iii) any Bond in lieu of or in
substitution for which a new Bond shall have been authenticated and delivered pursuant to
Section 3.10 herein.
“Owner” means the Person who is the registered owner of a Bond or Bonds, as shown in
the Register, which shall be Cede & Co., as nominee for DTC, so long as the Bonds are in book
entry only form and held by DTC as securities depository in accordance with Section 3.11
herein.
“Paying Agent/Registrar” means initially the Trustee, or any successor thereto as
provided in this Indenture.
“Person” or “Persons” means any individual, corporation, partnership, limited liability
company, joint venture, association, joint -stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
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“PID Act” means chapter 372, Improvement Towns in Municipalities and Counties,
Subchapter A, Public Improvement Districts, Texas Local Government Code, as amended.
“Pledged Funds” means the Pledged Revenue Fund, the Bond Fund, the
Prepayment/Delinquency Fund, the Reserve Fund, and the Redemption Fund.
“Pledged Revenue Fund” means that fund established pursuant to Section 6.1 and
administered pursuant to Section 6.3 herein.
“Pledged Revenues” means the sum of (i) the Annual Installment s, less the Annual
Collection Costs, (ii) any Prepayments received by the Town, and (iii) any Foreclosure Proceeds
received by the Town.
“Prepayment” means the payment of all or a portion of an Assessment before the due
date thereof.
“Prepayment/Delinquency Fund” means that fund established pursuant to Section 6.1 and
administered pursuant to Section 6.7.
“Prepayment/Delinquency Requirement” means the amount equal to $250,000.
“Pricing Certificate” means a certificate or certificates to be signed by the Authorized
Officer.
“Rebatable Arbitrage” means rebatable arbitrage as defined in Section 1.148-3 of the
Regulations.
“Rebate Fund” means that fund established pursuant to Section 6.1 and administered
pursuant to Section 6.8 herein.
“Record Date” means the close of business on the 15th calendar (whether or not a
Business Day) day of the month next preceding an Interest Payment Date.
“Redemption Fund” means that fund established pursuant to Section 6.1 and administered
pursuant to Section 6.5.
“Redemption Price” means, when used with respect to any Bond or portion thereof, the
principal amount of such Bond or such portion thereof plus the applicable premium, if any, plus
accrued and unpaid interest on such Bond to the date fixed for redemption, payable upon
redemption thereof pursuant to this Indenture.
“Refunded Bond Candidates” means the obligations of the Town described in Schedule I
attached hereto which are hereby authorized to be designated as Refunded Bonds in the Pricing
Certificate.
“Refunded Bonds” means those obligations of the Town designated as such in the Pricing
Certificate from the list of Refunded Bond Candidates described in Schedule I attached hereto.
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“Refunding Bonds” means bonds issued to refund all or any portion of the Outstanding
Bonds and secured by a parity lien on the Pledged Revenues, as more specifically described in
the indenture authorizing such Refunding Bonds.
“Register” means the register specified in Article III of this Indenture,
“Representative” means the representative of the Underwriters, BOSC, Inc.
“Reserve Fund” means that fund established pursuant to Section 6.1 and administered in
Section 6.6 herein.
“Reserve Fund Obligations” means cash or Investment Securities.
“Reserve Fund Requirement” means 50% of Maximum Annual Debt Service on the
Bonds as of the date of issuance; provided, however, that such amount shall be reduced by the
amount of any transfers made pursuant to subsections (c) and (d) of Section 6.6; and provided
further that as a result of redemptions pursuant to Sections 4.2, 4.3, and 4.4, the Reserve Fund
Requirement shall be reduced by a percentage equal to the pro rata amount of Bonds redeemed
by such redemptions divided by the total amount of the Outstanding Bonds prior to such
redemptions. As of the date of delivery of the Bonds, the Reserve Fund Requirement is
$___________ which is an amount equal to 50% of Maximum Annual Debt Service on the
Bonds as of the date of issuance.
“Service and Assessment Plan” means the documents, including the Assessment Roll, as
amended and as updated as provided by the Act, which are attached as Exhibit A to the
Assessment Ordinance.
“Sinking Fund Installment” means the amount of money to redeem or pay at maturity the
principal of Bonds payable from such installments at the times and in the amounts provided in
Section 4.2 herein.
“Stated Maturity” means the date the Bonds, or any portion of the Bonds, as applicable
are scheduled to mature without regard to any redemption or prepayment.
“Supplemental Indenture” means an indenture the execution of which has been duly
executed by the Town Representative pursuant to an ordinance adopted by the Town Council and
which indenture amends or supplements this Indenture, but only if and to the extent that such
indenture is specifically authorized hereunder.
“Town Certificate” means a certificate signed by the Town Representative and delivered
to the Trustee.
“Town Order” means written instructions by the Town, executed by a Town
Representative.
“Town Representative” means the Town’s Town Manager, general counsel, bookkeeper
or Assistant Town Manager or other such official or agent of the Town authorized by the Town
from time to time to undertake the action referenced herein.
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“Trust Estate” means the Trust Estate described in the granting clauses of this Indenture.
“Trustee” means The Bank of New York Mellon Trust Company, N.A. and its
successors, and any other corporation or association that may at any time be substituted in its
place, as provided in Article IX, such entity to serve as Trustee and Paying Agent/Registrar for
the Bonds.
“Underwriters” means the initial purchasers of the Bonds, BOSC, Inc. and Jefferies,
LLC.
Section 1.2 Finding.
The declarations, determinations and findings declared, made and found in the preamble
to this Indenture are hereby adopted, restated and made a part of the operative provisions hereof.
Section 1.3 Table of Contents, Titles and Headings.
The table of contents, titles and headings of the Articles and Sections of this Indenture
have been inserted for convenience of reference only and are not to be considered a part hereof
and shall not in any way modify or restrict any of the terms or provisions hereof and shall never
be considered or given any effect in construing this Indenture or any provision hereof or in
ascertaining intent, if any question of intent should arise.
Section 1.4 Interpretation.
(a) Unless the context requires otherwise, words of the masculine gender shall
be construed to include correlative words of the feminine and neuter genders and vice versa, and
words of the singular number shall be construed to include correlative words of the plural
number and vice versa.
(b) Words importing persons include any individual, corporation, limited
liability company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or agency or political subdivision thereof.
(c) Any reference to a particular Article or Section shall be to such Article or
Section of this Indenture unless the context shall require otherwise.
(d) This Indenture and all the terms and provisions hereof shall be liberally
construed to effectuate the purposes set forth herein to sustain the validity of this Indenture.
ARTICLE II
THE BONDS
Section 2.1 Security for the Bonds.
The Bonds, as to both principal and interest, are and shall be equally and ratably secured
by and payable from a first lien on and pledge of the Trust Estate.
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Section 2.2 Security Interest.
The Town represents that, under Chapter 1208.002, Texas Government Code, a security
interest in property, other than real property, that is created by the Town is valid and effective
according to the terms of the security agreement and is perfected from the time the security
agreement is entered into or adopted continuously through the termination of the security
interest, without physical delivery or transfer of control of the property, filing of a document, or
another act. The Town covenants that, if Chapter 1208.002 is amended at any time while the
Bonds are outstanding and unpaid, the Town shall take all actions required in order to preserve
for the Owners of the Bonds a perfected security interest in the property in which such security
interest is granted pursuant to Section 2.1 hereof.
Section 2.3 Limited Obligations.
The Bonds are special and limited obligations of the Town, payable solely from and
secured solely by the Trust Estate, including the Pledged Revenues and the Pledged Funds; and
the Bonds shall never be payable out of funds raised or to be raised by taxation or from any other
revenues, properties or income of the Town.
Section 2.4 Authorization for Indenture.
The terms and provisions of this Indenture and the execution and delivery hereof by the
Town to the Trustee have been duly authorized by official action of the Town Council of the
Town. The Town has ascertained and it is hereby determined and declared that the execution and
delivery of this Indenture is necessary to carry out and effectuate the purposes set forth in the
preambles of this Indenture and that each and every covenant or agreement herein contained and
made is necessary, useful or convenient in order to better secure the Bonds and is a contract or
agreement necessary, useful and convenient to carry out and effectuate the purposes herein
described.
Section 2.5 Contract with Owners and Trustee.
The purposes of this Indenture are to establish a lien and the security for, and to prescribe
the minimum standards for the authorization, issuance, execution and delivery of, the Bonds and
to prescribe the rights of the Owners, and the rights and duties of the Town and the Trustee.
ARTICLE III
AUTHORIZATION; GENERAL TERMS AND
PROVISIONS REGARDING THE BONDS
Section 3.1 Authorization.
The Bonds are hereby authorized to be issued and delivered in accordance with the
Constitution and laws of the State of Texas, including particularly the PID Act, as amended and
to be designated “Town of Trophy Club Public Improvement District No. 1 Special Assessment
Revenue Refunding Bonds, Series 2015 (Town of Trophy Club, Texas).” The Bonds shall be
issued in the aggregate principal amount of not to exceed $26,155,000 consisting of either or
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both Current Interest Bonds and Capital Appreciation Bonds in the amounts provided in the
Pricing Certificate for the purpose of (i) refunding the Refunded Bonds, (ii) funding a portion of
certain reserve funds as provided in Article VI, and (iii) paying the costs of issuance of the
Bonds.
Section 3.2 Date, Denomination, Maturities, Numbers and Interest.
(a) The Bonds shall be dated the Dated Date as set forth in the Pricing
Certificate and shall be in fully registered form without coupons.
(b) The Current Interest Bonds shall be in the aggregate principal amount
designated in the Pricing Certificate, shall be in the denomination of $1,000 principal amount or
any integral multiple thereof and shall be numbered separately from one upward, except the
Initial Current Interest Bond, which shall be numbered ICI-1.
(c) The Current Interest Bonds shall mature on the dates and in the principal
amounts and shall bear interest at the per annum rates set forth in the Pricing Certificate.
(d) Interest shall accrue and be paid on each Current Interest Bond,
respectively, until the principal amount thereof has been paid or provision for such payment has
been made, from t he later of (i) the Dated Date, unless otherwise provided in the Pricing
Certificate, or (ii) the most recent Interest Payment Date to which interest has been paid or
provided for at the rate per annum for each respective maturity specified in the Pricing
Certificate. Such interest shall be payable on each Interest Payment Date and shall be computed
on the basis of a 360-day year of twelve 30-day months.
(e) The Capital Appreciation Bonds shall be in the aggregate original
principal amount and aggregate Maturity Amount designated in the Pricing Certificate, shall be
in the Maturity Amounts of $1,000 or any integral multiple thereof, and shall be numbered
separately from one upward, except the Initial Capital Appreciation Bond, which shall be
numbered ICA-1.
(f) The Capital Appreciation Bonds shall be issued in the original principal
amounts and shall bear interest at the per annum rates, calculated on the basis of a 360-day year
composed of twelve 30-day months (subject to rounding to the Accreted Values thereof), and
shall mature on the dates and in the Maturity Amounts set forth in the Pricing Certificate.
(g) Interest shall accrete on each Capital Appreciation Bond from the Closing
Date and shall be compounded semiannually as designated in the Pricing Certificate, unt il
Maturity. The accreted interest on each Capital Appreciation Bond shall be payable at Maturity
as a portion of the Maturity Amount.
(h) The Bonds shall be subject to mandatory sinking fund redemption,
optional redemption, and extraordinary mandatory r edemption prior to maturity as provided in
Article IV herein, and shall otherwise have the terms, tenor, denominations, details and
specifications as set forth in the form of Bond set forth in Section 5.2 herein and in the Pricing
Certificate.
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Section 3.3 Conditions Precedent to Delivery of Bonds.
The Bonds shall be executed by the Town and delivered to the Trustee, whereupon the
Trustee shall authenticate the Bonds and, upon payment of the purchase price of the Bonds, shall
deliver the Bonds upon the order of the Town, but only upon delivery to the Trustee of:
(a) a certified copy of the Bond Order;
(b) a copy of this Indenture executed by the Trustee and the Town;
(c) a Town Certificate directing the authentication and delivery of the Bonds,
describing the Bonds to be authenticated and delivered, designating the purchasers to whom the
Bonds are to be delivered, stating the purchase price of the Bonds and stating that all items
required by this Section are therewith delivered to the Trustee in form and substance satisfactory
to the Town;
(d) the opinion of Bond Counsel substantially in the form set forth in
Appendix __ to the Official Statement; and
(e) such other documents and certifications as the Trustee may reasonably
request, subject to the Town’s approval.
Section 3.4 Medium, Method and Place of Payment.
(a) Debt Service on the Bonds shall be paid in lawful money of the United
States of America, as provided in this Section.
(b) Interest on the Current Interest Bonds shall be payable to the Owners
thereof as shown in the Register at the close of business on the relevant Record Date.
(c) Interest on the Current Interest Bonds shall be paid by cheek, dated as of
the Interest Payment Date, and sent, first class United States mail, postage prepaid, by the Paying
Agent/Registrar to each Owner at the address of each as such appears in the Register or by such
other customary banking arrangement acceptable to the Paying Agent/Registrar and the Owner;
provided, however, the Owner shall bear all risk and expense of such other banking arrangement.
(d) The principal of each Current Interest Bond and Maturity Amount of each
Capital Appreciation Bond shall be paid to the Owner of such Bond on the due date thereof,
whether at the maturity date or the date of prior redemption thereof, upon presentation and
surrender of such Bond at the Designated Payment/Transfer Office of the Paying
Agent/Registrar.
(e) If the date for the payment of Debt Service on the Bonds shall be a
Saturday, Sunday, legal holiday, or day on which banking institutions in the city where the
Designated Payment/Transfer Office of the Paying Agent/Registrar is located are required or
authorized by law or executive order to close, the date for such payment shall be the next
succeeding day that is not a Saturday, Sunday, legal holiday, or day on which banking
institutions are r equired or authorized to close, and payment on such date shall for all purposes
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be deemed to have been made on the due date thereof as specified in Section 3.2 of this
Indenture.
(f) Unclaimed payments of amounts due hereunder shall be segregated in a
special account and held in trust, uninvested by the Paying Agent/Registrar, for the account of
the Owner of the Bonds to which such unclaimed payments pertain. Subject to any escheat,
abandoned property or similar law of the State of Texas, any such payments remaining
unclaimed by the Owners entitled thereto for two (2) years after the applicable payment or
redemption date shall be applied to the next payment or payments on the Bonds thereafter
coming due and, to the extent any such money remains after the retirement of all Outstanding
Bonds, shall be paid to the Town to be used for any lawful purpose. Thereafter, none of the
Town, the Paying Agent/Registrar or any other Person shall be liable or responsible to any
holders of such Bonds for any further payment of such unclaimed moneys or on account of any
such Bonds, subject to any applicable escheat law or similar law of the State of Texas.
Section 3.5 Execution and Registration of Bonds.
(a) The Bonds shall be executed on behalf of the Town by the Mayor and
Town Secretary, by their manual or facsimile signatures, and the official seal of the Town shall
be impressed or placed in facsimile thereon. Such facsimile signatures on the Bonds shall have
the same effect as if each of the Bonds bad been signed manually and in person by each of said
officers, and such facsimile seal on the Bonds shall have the same effect as if the official seal of
the Town had been manually impressed upon each of the Bonds.
(b) In the event that any officer of the Town whose manual or facsimile
signature appears on the Bonds ceases to be such officer before the authentication of such Bonds
or before the delivery thereof; such manual or facsimile signature nevertheless shall be valid and
sufficient for all purposes as if such officer had remained in such office.
(c) Except as provided below, no Bond shall be valid or obligatory for any
purpose or be entitled to any security or benefit of this Indenture unless and until there appears
thereon the Certificate of Trustee substantially in the form provided herein, duly authenticated by
manual execution by an officer or duly authorized signatory of the Trustee. It shall not be
required that the same officer or authorized signatory of the Trustee sign the Certificate of
Trustee on all of the Bonds. In lieu of the executed Certificate of Trustee described above, the
Initial Bond delivered at the Closing Date shall have attached thereto the Comptroller’s
Registration Certificate substantially in the form provided herein, manually executed by the
Comptroller of Public Accounts of the State of Texas, or by her duly authorized agent, which
certificate shall be evidence that the Initial Bond has been duly approved by the Attorney
General of the State of Texas, is a valid and binding obligation of the Town, and has been
registered by the Comptroller of Public Accounts of the State of Texas.
(d) On the Closing Date, the Initial Bonds being (i) a single Initial Current
Interest Bond representing the entire principal amount of the Current Interest Bonds designated
in the Pricing Certificate and (ii) a single Initial Capital Appreciation Bond representing the
aggregate Maturity Amount of the Capital Appreciation Bonds designated in the Pricing
Certificate, each Initial Bond payable in stated installments to the Underwriters, or its designee,
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executed with the manual or facsimile signatures of the Mayor and the Town Secretary,
approved by the Attorney General of the State of Texas, and registered and manually signed by
the Comptroller of Public Accounts, will be delivered to the Underwriters or their designee.
Upon payment for the Initial Bond s, the Trustee shall cancel the Initial Bonds and deliver to
DTC on behalf of the Underwriters one registered definitive Bond for each year of maturity of
the Bonds, in the aggregate principal amount of all Bonds for such maturity, registered in the
name of Cede & Co., as nominee of DTC.
Section 3.6 Ownership.
(a) The Town, the Trustee the Paying Agent/Registrar and any other Person
may treat the Person in whose name any Bond is registered as the absolute owner of such Bond
fo r the purpose of making and receiving payment as provided herein (except interest on the
Current Interest Bonds shall be paid to the Person in whose name such Current Interest Bond is
registered on the Record Date) and for all other purposes, whether or not such Bond is overdue,
and neither the Town nor the Trustee, nor the Paying Agent/Registrar shall be bound by any
notice or knowledge to the contrary.
(b) All payments made to the Owner of any Bond shall be valid and effectual
and shall discharge the liabilit y of the Town, the Trustee and the Paying Agent/Registrar upon
such Bond to the extent of the sums paid.
Section 3.7 Registration, Transfer and Exchange.
(a) So long as any Bond remains outstanding, the Town shall cause the
Paying Agent/Registrar to keep at the Designated Payment/Transfer Office a Register in which,
subject to such reasonable regulations as it may prescribe, the Paying Agent/Registrar shall
provide for the registration and transfer of Bonds in accordance with this Indenture.
(b) A Bond shall be transferable only upon the presentation and surrender
thereof at the Designated Payment/Transfer Office of the Paying Agent/Registrar with such
endorsement or other evidence of transfer as is acceptable to the Paying Agent/Registrar. No
transfer of any Bond shall be effective until entered in the Register.
(c) The Bonds shall be exchangeable upon the presentation and surrender
thereof at the Designated Payment/Transfer Office of the Paying Agent/Registrar for a Bond or
Bonds of the same maturity and interest rate and in any Authorized Denomination and in an
aggregate principal amount (with respect to Current Interest Bonds) or Maturity Amount (with
respect to Capital Appreciation Bonds) equal to the unpaid principal amount or Maturity
Amount, as applicable, of the Bond present ed for exchange. The Trustee is hereby authorized to
authenticate and deliver Bonds exchanged for other Bonds in accordance with this Section.
(d) The Trustee is hereby authorized to authenticate and deliver Bonds
transferred or exchanged in accordance with this Section. A new Bond or Bonds will be
delivered by the Paying Agent/Registrar, in lieu of the Bond being transferred or exchanged, at
the Designated Payment/Transfer Office, or sent by United States mail, first class, postage
prepaid, to the Owner or his designee. Each Bond delivered by the Paying Agent/Registrar in
accordance with this Section shall constitute an original contractual obligation of the Town and
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shall be entitled to the benefits and security of this Indenture to the same extent as the Bond or
Bonds in lieu of which such Bond is delivered.
(e) Each exchange Bond delivered in accordance with this Section shall
constitute an original contractual obligation of the Town and shall be entitled to the benefits and
security of this Indenture to the same extent as the Bond or Bonds in lieu of which such
exchange Bond is delivered.
(f) No service charge shall be made to the Owner for the initial registration,
subsequent transfer, or exchange for a different denomination of any of the Bonds. The Paying
Agent/Registrar, however, may require the Owner to pay a sum sufficient to cover any tax or
other governmental charge that is authorized to be imposed in connection with the registration,
transfer or exchange of a Bond.
(g) Neither the Town nor the Paying Agent/Regist rar shall be required to
issue, transfer, or exchange any Bond or portion thereof called for redemption prior to maturity
within forty-five (45) days prior to the date fixed for redemption; provided, however, such
limitation shall not be applicable to an exchange by the Owner of the uncalled balance of a Bond.
Section 3.8 Cancellation.
All Bonds paid or redeemed before scheduled maturity in accordance with this Indenture,
and all Bonds in lieu of which exchange Bonds or replacement Bonds are authenticated and
delivered in accordance with this Indenture, shall be cancelled, and proper, records shall be made
regarding such payment, redemption, exchange, or replacement. The Paying Agent/Registrar
shall dispose of cancelled Bonds in accordance with the records retention requirements of the
Trustee.
Section 3.9 Temporary Bonds.
(a) Following the delivery and registration of the Initial Bonds and pending
the preparation of definitive Bonds, the proper officers of the Town may execute and, upon the
Town’s request, the Trustee shall authenticat e and deliver, one or more temporary Bonds that are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Bonds in lieu of which they are delivered, without
coupons, and with such appropriate insertions, omissions, substitutions and other variations as
the officers of the Town executing such temporary Bonds may determine, as evidenced by their
signing of such temporary Bonds.
(b) Until exchanged for Bonds in definitive form, such Bonds in temporary
form shall be entitled to the benefit and security of this Indenture.
(c) The Town, without unreasonable delay, shall prepare, execute and deliver
to the Trustee the Bonds in definitive form; thereupon, upon the presentation and surrender of the
Bond or Bonds in temporary form to the Paying Agent/Registrar, the Paying Agent/Registrar
shall cancel the Bonds in temporary form and the Trustee shall authenticate and deliver in
exchange therefor a Bond or Bonds of the same maturity and series, in definitive form, in the
Authorized Denomination, and in the same aggregate principal amount, as the Bond or Bonds in
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temporary form surrendered. Such exchange shall be made without the making of any charge
therefor to any Owner.
Section 3.10 Replacement Bonds.
(a) Upon the presentation and surrender to the Paying Agent/Registrar of a
mutilated Bond, the Trustee shall authenticate and deliver in exchange therefor a replacement
Bond of like tenor and principal amount (with respect to the Current Interest Bonds and) and
Maturity Amount (with respect to the Capital Appreciation Bonds), bearing a number not
contemporaneously outstanding. The Town or the Paying Agent/Registrar may require the
Owner of such Bond to pay a sum sufficient to cover any tax or other governmental charge that
is authorized to be imposed in connection therewith and any other expenses connected therewith.
(b) In the event that any Bond is lost, apparently destroyed or wrongfully
taken, the Trustee, pursuant to the applicable laws of the State of Texas and in the absence of
notice or knowledge that such Bond has been acquired by a bona fide purchaser, shall
authenticate and deliver a replacement Bond of like tenor and principal amount or Maturity
Amount (with respect to the Capital Appreciation Bonds), bearing a number not
contemporaneously outstanding, provided that the Owner first complies with the following
requirements:
(i) furnishes to the Paying Agent/Registrar satisfactory evidence of his
or her ownership of and the circumstances of the loss, destruction or theft of such Bond;
(ii) furnishes such security or indemnity as may be required by the
Trustee to save it and the Town harmless;
(iii) pays all expenses and charges in connection therewith, including,
but not limited to, printing costs, legal fees, fees of the Trustee and any tax or other
governmental charge that is authorized to be imposed; and
(iv) satisfies any other reasonable requirements imposed by the Town
and the Trustee.
(c) After the delivery of such replacement Bond, if a bona fide purchaser of
the original Bond in lieu of which such replacement Bond was issued presents for payment such
original Bond, the Town and the Paying Agent/Registrar shall be entitled to recover such
replacement Bond from the Person to whom it was delivered or any Person taking therefrom,
except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by the Town or the
Trustee in connection therewith.
(d) In the event that any such mutilated, lost, apparently destroyed or
wrongfully taken Bond has become or is about to become due and payable, the Paying
Agent/Registrar, in its discretion, instead of issuing a replacement Bond, may pay such Bond if it
has become due and payable or may pay such Bond when it becomes due and payable.
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(e) Each replacement Bond delivered in accordance with this Section shall
constitute an original additional contractual obligation of the Town and shall be entitled to the
benefits and security of this Indenture to the same extent as the Bond or Bonds in lieu of which
such replacement Bond is delivered.
Section 3.11 Book-Entry Only System.
The Bonds shall initially be issued in book-entry-only form and shall be deposited with
DTC, which is hereby appointed to act as the securities depository therefor, in accordance with
the letter of representations from the Town to DTC. On the Closing Date the definitive Bonds
shall be issued in the form of a single typewritten certificate for each maturity thereof registered
in the name of Cede & Co., as nominee for DTC.
With respect to Bonds registered in the name of Cede & Co., as nominee of DTC, the
Town and the Paying Agent/Registrar shall have no responsibility or obligation to any DTC
Participant or to any Person on behalf of whom such a DTC Participant holds an interest in the
Bonds. Without limiting the immediately preceding sentence, the Town and the Paying
Agent/Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the
records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in
the Bonds, (ii) the delivery to any DTC Participant or any other Person, other than an Owner, as
shown on the Register, of any notice with respect to the Bonds, including any notice of
redemption, or (iii) the payment to any DTC Participant or any other Person, other than an
Owner, as shown in the Register of any amount with respect to principal of, premium, if any, or
interest on the Bonds. Notwithstanding any other provision of this Indenture to the cont rary, the
Town and the Paying Agent/Registrar shall be entitled to treat and consider the Person in whose
name each Bond is registered in the Register as the absolute owner of such Bond for the purpose
of payment of principal of, premium, if any, and inter est on Bonds, for the purpose of giving
notices of redemption and other matters with respect to such Bond, for the purpose of registering
transfer with respect to such Bond, and for all other purposes whatsoever. The Paying
Agent/Registrar shall pay all principal of, premium, if any, and interest on the Bonds only to or
upon the order of the respective Owners as shown in the Register, as provided in this Indenture,
and all such payments shall be valid and effective to fully satisfy and discharge the Town’s
obligations with respect to payment of principal of, premium, if any, and interest on the Bonds to
the extent of the sum or sums so paid. No Person other than an Owner, as shown in the Register,
shall receive a Bond certificate evidencing the obligation of the Town to make payments of
amounts due pursuant to this Indenture. Upon delivery by DTC to the Paying Agent/Registrar of
written notice to the effect that DTC has determined to substitute a new nominee in place of
Cede & Co., and subject to the provisions in this Indenture with respect to interest checks or
drafts being mailed to the registered owner at the close of business on the Record Date, the word
“Cede & Co.” in this Indenture shall refer to such new nominee of DTC.
Section 3.12 Successor Securities Depository Transfer Outside Book-Ent ry-Only
In the event that the Town determines that DTC is incapable of discharging its
responsibilities described herein and in the letter of representations from the Town to DTC, the
Town shall (i) appoint a successor securities depository, qualified to act as such under
Section 17(a) of the Securities and Exchange Act of 1934, as amended, notify DTC and DTC
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Participants of the appointment of such successor securities depository and transfer one or more
separate Bonds to such successor securities depository; or (ii) notify DTC and DTC Participants
of the availability through DTC of certificated Bonds and cause the Paying Agent/Registrar to
transfer one or more separate registered Bonds to DTC Participants having Bonds credited to
their DTC accounts. In such event, the Bonds shall no longer be restricted to being registered in
the Register in the name of Cede & Co., as nominee of DTC, but may be registered in the name
of the successor securities depository, or its nominee, or in whatever name or names Owners
transferring or exchanging Bonds shall designate, in accordance with the provisions of this
Indenture.
Section 3.13 Payments to Cede & Co.
Notwithstanding any other provision of this Indenture to the contrary, so long as any
Bonds are registered in the name of Cede & Co., as nominee of DTC, all payments with respect
to principal of, premium, if any, and interest on such Bonds, and all notices with respect to such
Bonds shall be made and given, respectively, in the manner provided in the blanket letter of
representations from the Town to DTC and the policies and procedures of DTC.
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
Section 4.1 Limitation on Redemption.
The Bonds shall be subject to redemption before their scheduled maturity only as
provided in this Artic le IV.
Section 4.2 Mandatory Sinking Fund Redemption.
(a) The Current Interest Bonds designated as “Term Bonds” if any, in the
Pricing Certificate are subject to mandatory sinking fund redemption prior to their respective
maturities and will be redeemed by the Town in par t at a price of par plus interest accrued to the
date of redemption from moneys available for such purpose in the Bond Fund pursuant to
Article VI, on the dates and in the respective S inking Fund I nstallments as set forth in the Pricing
Certificate.
(b) At lea st forty-five (45) days prior to each scheduled mandatory
redemption date, the Trustee shall select for redemption by lot or any other customary method
that results in a random selection, or such other method specified in the Pricing Certificate, a
principal amount of Term Bonds of such maturity equal to the S inking Fund I nstallment amount
of such Term Bonds to be redeemed, shall call such Term Bonds for redemption on such
scheduled mandatory redemption date, and shall give notice of such redemption, as provided in
Section 4.6.
(c) The principal amount of Term Bonds required to be redeemed on any
redemption date pursuant to subparagraph (a) of this Section 4.2 shall be reduced, at the option
of the Town, by the principal amount of any Term Bonds of such maturity which, at least 45
days prior to the sinking fund redemption date shall have been acquired by the Town at a price
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not exceeding the principal amount of such Term Bonds plus accrued unpaid interest to the date
of purchase thereof, and delivered to the Trustee for cancellation.
(d) The principal amount of Term Bonds required to be redeemed on any
redemption date pursuant to subparagraph (a) of this Section 4.2 shall be reduced on a pro rata
basis among Sinking Fund Installments by the principal amount of any Term Bonds which, at
least 45 days prior to the sinking fund redemption date, shall have been redeemed pursuant to the
optional redemption or extraordinary mandatory redemption provisions hereof and not
previously credited to a sinking fund redemption.
Section 4.3 Optional Redemption.
(a) The Town reserves the right and option to redeem Bonds before their
respective scheduled maturity dates, in whole or in part, as set forth in the Pricing Certificate.
(b) If less than all of the Bonds are to be redeemed pursuant to an optional
redemption, the Town shall determine the maturity or maturities and the amounts thereof to be
redeemed and shall direct the Paying Agent/Registrar to call by lot of at random the Bonds, or
portion thereof, within such maturity or maturities and in such principal amounts for redemption.
Section 4.4 Extraordinary Mandatory Redemption.
(a) The Town shall redeem Bonds prior to maturity, in whole or in part , on
any business day, at the Redemption Price, from amounts on deposit in the Redemption Fund as
a result of the Prepayment s and from transfers of Foreclosure Proceeds. The Extraordinary
mandatory redemption provisions herein may be modified by the Pricing Certificate.
(b) If less than all of the Bonds are to be redeemed pursuant to an
Extraordinary mandatory redemption, the Bonds are subject to pro rata redemption by Maturity.
The Paying Agent/Registrar shall call by lot the Bonds, or portion thereof, within each Maturity
for redemption.
Section 4.5 Partial Redemption.
(a) If less than all of the Bonds are to be redeemed, Bonds shall be redeemed
in minimum principal amounts and Maturity Amounts of $1,000 and increments of $1,000
thereafter by any method selected by the Trustee that results in random selection with respect to
redemptions pursuant to Section 4.3. Partial redemptions pursuant to Section 4.4 shall be made
on a pro rata basis by Maturity. Each Bond shall be treated as representing the number of Bonds
that is obtained by dividing the principal amount of such Bond by $1,000, as applicable.
(b) A portion of a single Bond of a denomination greater than $1,000 may be
redeemed, but only in a principal amount equal to $1,000 or any integral multiple thereof. The
Trustee shall treat each $1,000 portion of such Bond as though it were a single bond for purposes
of selection for redemption.
(c) Upon surrender of any Bond for redemption in part, the Trustee in
accordance with Section 3.7 of this Indenture, shall authenticate and deliver an exchange Bond
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or Bonds in an aggregate principal amount equal to the unredeemed portion of the Bond so
surrendered, such exchange being without charge.
Section 4.6 Notice of Redemption to Owners.
(a) The Trustee shall give notice of any redemption of Bonds by sending
notice by first class United States mail, postage prepaid, not less than 30 days before the date
fixed for redemption, to the Owner of each Bond or portion thereof to be redeemed, at the
address shown in the Register.
(b) The notice shall state the redemption date, the Redemption Price, the place
at which the Bonds are to be surrendered for payment, and, if less than all the Bonds Outstanding
are to be redeemed, subject to Section 4.5 hereof, an identification of the Bonds or portions
thereof to be redeemed; any conditions to such redemption and that on the redemption date, if all
conditions, if any, to such redemption have been satisfied, such Bond shall become due and
payable.
(c) Any notice given as provided in this Section shall be conclusively
presumed to have been duly given, whether or not the Owner receives such notice.
(d) The Town reserves the right, in the case of an optional or Extraordinary
mandatory redemption pursuant to Sections 4.3 or 4.4 herein, to give notice of its election or
direction to redeem Bonds conditioned upon the occurrence of subsequent events. Such notice
may state (i) that the redemption is conditioned upon the deposit of moneys and/or authorized
securities, in an amount equal to the amount necessary to effect the redemption, with the Paying
Agent/Registrar, or such other entity as may be authorized by law, no later than the redemption
date, or (ii) that the Town retains the right to rescind such notice at any time on or prior to the
scheduled redemption date if the Town delivers a certificate of the Town to the Paying
Agent/Registrar instructing the Paying Agent/Registrar to rescind the redemption notice and such
notice and redemption shall be of no effect if such moneys and/or authorized securities are not so
deposited or if the notice is rescinded. The Paying Agent/Registrar shall give prompt notice of
any such rescission of a conditional notice of redemption to the affected Owners. Any Bonds
subject to conditional redemption and such redemption has been rescinded shall remain
Outstanding and the rescission of such redemption shall not constitute an event of default.
Further, in the case of a conditional redemption, the failure of the Town to make moneys and or
authorized securities available in part or in whole on or before the redemption date shall not
constitute an event of default.
Section 4.7 Payment Upon Redemption.
(a) The Trustee shall make provision for the payment of the Bonds to be
redeemed on such date by setting aside and holding in trust an amount from the Redemption
Fund or otherwise received by the Trustee from the Town and shall use such funds solely for the
purpose of paying the Redemption Price on the Bonds being redeemed.
(b) Upon presentation and surrender of any Bond called for redemption at the
Designated Payment/Transfer Office of the Trustee on or after the date fixed for redemption, the
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Trustee shall pay the Redemption Price on such Bond to the date of redemption from the moneys
set aside for such purpose.
Section 4.8 Effect of Redemption.
Notice of redemption having been given as provided in Section 4.6 of this Indenture, the
Bonds or portions thereof called for redemption shall become due and payable on the date fixed
for redemption provided that funds for the payment of the principal amount plus accrued unpaid
interest on such Bonds plus any premium, to the date fixed for redemption are on deposit with
the Trustee; thereafter, such Bonds or portions thereof shall cease to bear interest from and after
the date fixed for redemption, whether or not such Bonds are presented and surrendered for
payment on such date.
ARTICLE V
FORM OF THE BONDS
Section 5.1 Form Generally.
(a) The Bonds, including the Registration Certificate of the Comptroller of
Public Accounts of the State of Texas, the Certificate of the Trustee, the Assignment, and
municipal bond insurance legend, if any, and to appear on each of the Bonds, (i) shall be
substantially in the form set forth in this Article with such appropriate insertions, omissions,
substitutions, and other variations as are permitted or required by this Indenture, and (ii) may
have such letters, numbers, or other marks of identification (including identifying numbers and
letters of the Committee on Uniform Securities Identification Procedures of the American
Bankers Association) and such legends and endorsements (including any reproduction of an
opinion of counsel) thereon as, consistently herewith, may be determined by the Town or by the
officers executing such Bonds, as evidenced by their execution thereof.
(b) Any portion of the text of any Bonds may be set forth on the reverse side
thereof, with an appropriate reference thereto on the face of the Bonds.
(c) The definitive Bonds shall be typewritten, printed, lithographed, or
engraved, and may be produced by any combination of these methods or produced in any other
similar manner, all as determined by the officers executing such Bonds, as evidenced by their
execution thereof.
(d) The Initial Bond submitted to the Attorney General of the State of Texas
may be typewritten and photocopied or otherwise reproduced.
Section 5.2 Form of the Current Interest Bonds.
(a) Form of Bond.
NEITHER THE FAITH AND CREDIT NOR THE TAXING
POWER OF THE STATE OF TEXAS, THE TOWN, DENTON
COUNTY OR ANY OTHER POLITICAL CORPORATION,
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SUBDIVISION OR AGENCY THEREOF, IS PLEDGED TO
THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON
THIS BOND.
REGISTERED REGISTERED
No. _______ $___________
United States of America
State of Texas
TROPHY CLUB PUBLIC IMPROVEMENT DISTRICT NO. 1
SPECIAL ASSESSMENT REVENUE REFUNDING BOND, SERIES 2015
(TOWN OF TROPHY CLUB, TEXAS)
CURRENT INTEREST BOND
INTEREST RATE: MATURITY DATE: DELIVERY DATE: CUSIP NUMBER:
________% __________, ___ __________, 2015 _______ ___
The Town of Trophy Club, Texas (the “Town”), for value received, hereby promises to
pay, solely from the Pledged Revenues, to
_________________________________
or registered assigns, on the Maturity Date, as specified above, the sum of
____________________________ DOLLARS
unless this Bond shall have been sooner called for redemption and the payment of the principal
hereof shall have been paid or provision for such payment shall have been made, and to pay
interest on the unpaid principal amount hereof from the later of the Delivery Date, as specified
above, or the most recent Interest Payment Date to which interest has been paid or provided for
until such principal amount shall have been paid or provided for, at the per annum rate of interest
specified above, computed on the basis of a 360-day year of twelve 30-day months, such interest
to be paid semiannually on ____________1 and ___________2 of each year, commencing
_____________, 20__3.
Capitalized terms appearing herein that are defined terms in the Indenture defined below,
have the meanings assigned to them in the Indenture. Reference is made to the Indenture for such
definitions and for all other purposes.
1 To be inserted pursuant to Pricing Certificate. 2 To be inserted pursuant to Pricing Certificate.
3 To be inserted pursuant to Pricing Certificate.
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The principal of this Bond shall be payable without exchange or, collection charges in
lawful money of the United States of America upon presentation and surrender of this Bond at
the corporate trust office in Dallas, Texas (the “Designated Payment/Transfer Office”), of The
Bank of New York Mellon Trust Company, N.A. as trustee and paying agent/registrar (the
“Trustee”) (whic h term includes any successor trustee under the Indenture), or, with respect to a
successor trustee and paying agent/registrar, at the Designated Payment/Transfer Office of such
successor. Interest on this Bond is payable by check dated as of the Interest Payment Date,
mailed by the Trustee to the registered owner at the address shown on the registration books kept
by the Trustee or by such other customary banking arrangements acceptable to the Trustee,
requested by, and at the risk and expense of, the Person to whom interest is to be paid. For the
purpose of the payment of interest on this Bond, the registered owner shall be the Person in
whose name this Bond is registered at the close of business on the “Record Date,” which shall be
the 15th calendar day o f the month next preceding such Interest Payment Date; provided,
however, that in the event of nonpayment of interest on a scheduled Interest Payment Date, and
for 30 days thereafter, a new record date for such interest payment (a “Special Record Date”)
will be established by the Trustee, if and when funds for the payment of such interest have been
received from the Town. Notice of the Special Record Date and of the scheduled payment date
of the past due interest (the “Special Payment Date,” which shall be 15 days after the Special
Record Date) shall be sent at least five Business Days prior to the Special Record Date by United
States mail, first class postage prepaid, to the address of each Owner of a Bond appearing on the
books of the Trustee at the close of business on the last Business Day preceding the date of
mailing such notice.
If a date for the payment of the principal of or interest on the Bonds is a Saturday,
Sunday, legal holiday, or a day on which banking institutions in the Town or in the city in which
the Designated Payment/Transfer Office is located are authorized by law or executive order to
close, then the date for such payment shall be the next succeeding Business Day, 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 dated _____________, 20154 and is one of a duly authorized issue of
assessment revenue bonds of the Town having the designation specified in its title (herein
referred to as the “Bonds”), dated as of the date of delivery and issued in the aggregate principal
amount of $__________5, in part as (i) $__________ original principal amount of Current
Interest Bonds and (ii) $__________ Capital Appreciation Bonds and issued in one series, with
the limitations described herein, pursuant to an Indenture of Trust, dated as of ___________,6
2015 (the “Indenture”), from the Town to the Bank of New York Mellon Trust Company N.A.,
as trustee, to which Indenture reference is hereby made for a description of the amounts thereby
pledged and assigned, the nature and extent of the lien and security, the respective rights
thereunder to the holders of the Bonds, the Trustee, and the Town, and the terms upon which the
Bonds are, and are to be, authenticated and delivered and by this reference to the terms of which
each holder of this Bond hereby consents, All Bonds issued under the Indenture are equally and
ratably secured by the amounts thereby pledged and assigned. The Bonds are being issued for the
purpose of (i) refunding outstanding special assessment revenue bonds, (ii) funding a portion of
4 To be inserted pursuant to Pricing Certificate. 5 To be inserted pursuant to Pricing Certificate.
6 To be inserted pursuant to Pricing Certificate.
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certain reserves as provided in Article VI, and (iii) paying the costs of issuing the Bonds. This
Bond is a Current Interest Bond.
The Bonds are limited obligations of the Town payable solely from the Pledged
Revenues and Pledged Funds as defined in the Indenture. Reference is hereby made to the
Indenture, copies of which are on file with and available upon request from the Trustee, for the
provisions, among others, with respect to the nature and extent of the duties and obligations of
the Town, the Trustee and the Owners. The Owner of this Bond, by the acceptance hereof, is
deemed to have agreed and consented to the terms, conditions and provisions of the Indenture.
Notwithstanding any provision hereof, the Indenture may be released and the obligation
of the Town to make money available to pay this Bond may be defeased by the deposit of money
and/or certain direct or indirect Defeasance Securities sufficient for such purpose as described in
the Indenture.
The Bonds are issuable as fully registered bonds only in denominations of $1,000 and
any $1,000 multiple in excess thereof, subject to the provisions of the Indenture authorizing
redemption.
[The Bonds are subject to sinking fund redemption prior to their respective maturities and
will be redeemed by the Town in part at a price equal to the principal amount thereof plus
accrued and unpaid interest thereon to the date set for redemption from moneys available for
such purpose in the Redemption Fund pursuant to Article VI of the Indenture, on the dates and in
the respective sinking fund installments as set forth in the following schedule:
Term Bonds Due
Redemption Date Principal Amount
12/01/20__
12/01/20__
12/01/20__
12/01/20__*
*maturity
Term Bonds Due
Redemption Date Principal Amount
12/01/20__
12/01/20__
12/01/20__
12/01/20__*
*maturity
Term Bonds Due
Redemption Date Principal Amount
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12/01/20__
12/01/20__
12/01/20__
12/01/20__*
*maturity
At least forty-five (45) days prior to each sinking fund redemption date, the Trustee shall
select for redemption by lot, or by any other customary method that results in a random selection,
a principal amount of Bonds of such maturity equal to the sinking fund installments of such
Bonds to be redeemed, shall call such Bonds for redemption on such scheduled mandatory
sinking fund redemption date, and shall give notice of such redemption, as provided in
Section 4.6 of the Indenture.
The principal amount of Term Bonds required to be redeemed on any sinking fund
redemption date shall be reduced, at the option of the Town, by the principal amount of any
Term Bonds of such maturity which, at least 45 days prior to the sinking fund redemption date (i)
shall have been acquired by the Town at a price not exceeding the principal amount of such
Term Bonds plus accrued and unpaid interest to the date of purchase thereof, and delivered to the
Trustee for cancellation, or (ii) shall have been redeemed pursuant to the optional redemption or
extraordinary mandatory redemption and not previously credited to a sinking fund redemption.]7
[The Town reserves the right and option to redeem Bonds, in whole or in part, on
___________ 1, 20__ or any date thereafter, such redemption date or dates to be fixed by the
Town, at the Redemption Price set forth below plus accrued and unpaid interest to the date fixed
for redemption:
Redemption Period
Redemption
Price
December 1, 20__ through November 30, 20__ ___%
December 1, 20__ through November 30, 20__ ___%
December 1, 20__ through November 30, 20__ ___%
December 1, 20__ and thereafter ___%
Bonds are subject to extraordinary mandatory redemption prior to Maturity in whole or in
part, on any business day at a Redemption Price equal to the principal amount of the Bonds
called for redemption, plus the applicable premium, if any, plus accrued and unpaid interest to
the date fixed for redemption from amounts on deposit in the Redemption Fund as a result of the
Prepayments or from Foreclosure Proceeds.]8
The Trustee shall give notice of any redemption of Bonds by sending notice by first class
United States mail, postage prepaid, not less than 30 days before the date fixed for redemption,
to the Owner of each Bond (or part thereof) to be redeemed, at the address shown on the
Register. The notice shall state the redemption date, the Redemption Price, the place at which the
Bonds are to be surrendered for payment, and, if less than all the Bonds Outstanding are to be
7 To be inserted pursuant to Pricing Certificate.
8 To be inserted pursuant to Pricing Certificate.
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redeemed, an identification of the Bonds or portions thereof to be redeemed. Any notice so given
shall be conclusively presumed to have been duly given, whether or not the Owner receives such
notice.
The Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Town and the rights of the
holders of the Bonds under the Indenture at any time Outstanding affected by such modification.
The Indenture also contains provisions permitt ing the holders of specified percentages in
aggregate principal amount of the Bonds at the time Outstanding, on behalf of the holders of all
the Bonds, to waive compliance by the Town with certain past defaults under the Bond
Ordinance or the Indenture and their consequences. Any such consent or waiver by the holder of
this Bond or any predecessor Bond evidencing the same debt shall be conclusive and binding
upon such holder and upon all future holders thereof and of any Bond issued upon the transfer
thereo f or in exchange therefor or in lieu thereof, whether or not notation of such consent or
waiver is made upon this Bond.
As provided in the Indenture, this Bond is transferable upon surrender of this Bond for
transfer at the Designated Payment/Transfer Office, with such endorsement or other evidence of
transfer as is acceptable to the Trustee, and upon delivery to the Trustee of such certifications
and/or opinion of counsel as may be required under the Indenture for the transfer of this Bond.
Upon satisfaction of such requirements, one or more new fully registered Bonds of the same
Stated Maturity, of Authorized Denominations, bearing the same rate of interest, and for the
same aggregate principal amount will be issued to the designated transferee or transferees.
Neither the Town nor the Trustee shall be required to issue, transfer or exchange any
Bond called for redemption where such redemption is scheduled to occur within 45 calendar
days of the transfer or exchange date; provided, however, such limitation shall not be applicable
to an exchange by the registered owner of the uncalled principal balance of a Bond.
The Town, the Trustee, and any other Person may treat the Person in whose name this
Bond is registered as the owner hereof for the purpose of receiving payment as herein provided
(except interest shall be paid to the Person in whose name this Bond is registered on the Record
Date or Special Record Date, as applicable) and for all other purposes, whether or not this Bond
be overdue, and neither the Town nor the Trustee shall be affected by notice to the contrary.
NEITHER THE FULL FAITH AND CREDIT NOR THE GENERAL TAXING POWER
OF THE TOWN OF TROPHY CLUB, TEXAS, DENTON COUNTY, TEXAS OR THE
STATE OF TEXAS, OR ANY POLITICAL SUBDIVISION THEREOF, IS PLEDGED TO
THE PAYMENT OF THE BONDS.
IT IS HEREBY CERTIFIED AND RECITED that the issuance of this Bond and the
series of which it is a part is duly authorized by law; that all acts, conditions and things required
to be done precedent to and in the issuance of the Bonds have been properly done and performed
and have happened in regular and due time, form and manner, as required by law; and that the
total indebtedness of the Town, including the Bonds, does not exceed any Constitutional or
statutory limitation.
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IN WITNESS WHEREOF, the Town has caused this Bond to be executed in its name by
the manual or facsimile signature of the Mayor and countersigned by the manual or facsimile
signature of the Town Secretary, and the official seal of the Town has been duly imprinted or
placed in facsimile on this Bond.
Town Secretary, Town of Trophy Club, Texas Mayor, Town of Trophy Club, Texas
[Seal]
(b) Form of Comptroller’s Registration Certificate.
The following Comptroller’s Registration Certificate of the Comptroller of Public
Accounts shall appear on each Initial Bond in lieu of the Certificate of Trustee:
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER §
OF PUBLIC ACCOUNTS § REGISTER NO.__________
THE STATE OF TEXAS §
I HEREBY CERTIFY THAT there is on file and of record in my office a certificate to
the effect that the Attorney General of the State of Texas has approved this Bond, and that this
Bond has been registered this day by me.
WITNESS MY SIGNATURE AND SEAL OF OFFICE this ____________________.
____________________________________
Comptroller of Public Accounts of the
State of Texas
[SEAL]
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(c) Form of Certificate of Trustee.
The following Certificate of Trustee may be deleted from the Initial Bond if the
Comptroller’s Registration Certificate is attached thereto:
CERTIFICATE OF TRUSTEE
It is hereby certified that this is one of the Bonds of the series of Bonds referred to in the
within mentioned indenture.
The Bank of New York Mellon Trust Company,
N.A.
DATED: ________________________ as Trustee
_______________________________________
Authorized Signatory
(d) Form of Assignment.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto
(print or typewrite name, address and Zip Code of transferee): ____________________________
______________________________________________________________________________
______________________________________________________________________________
(Social Security or other identifying number: __________________) the within Bond and all
rights hereunder and hereby irrevocably constitutes and appoints ___________________
attorney to transfer the within Bond on the books kept for registration hereof, with full power of
substitution in the premises.
Date: ________________________
Signature Guaranteed By:
_____________________________
_____________________________
Authorized Signatory
____________________________________________
NOTICE: The signature on this Assignment must
correspond with the name of the registered owner as it
appears on the face of the within Bond in every
particular and must be guaranteed in a manner
acceptable to the Trustee.
(e) The Initial Bond shall be in the form set forth in paragraphs (a) through (d)
of this section, except for the following alterations:
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(i) immediately under the name of the Bond the heading “INTEREST
RATE” and “MATURITY DATE” shall both be completed with the expression “As
Shown Below,” and the reference to the “CUSIP NUMBER” shall be deleted;
(ii) in the first paragraph of the Bond, the words “on the Maturity Date
specified above” shall be deleted and the following will be inserted: “on December in
each of the years, in the principal installments and bearing interest at the per annum rates
set forth in the following schedule:
Years Principal Installments Interest Rates”
(Information to be inserted from the Pricing Certificate); and
(iii) the Initial Bond shal l be numbered ICI-1.
Section 5.3 Form of the Capital Appreciation Bonds.
(a) Form of Bond.
NEITHER THE FAITH AND CREDIT NOR THE TAXING
POWER OF THE STATE OF TEXAS, THE TOWN, DENTON
COUNTY OR ANY OTHER POLITICAL CORPORATION,
SUBDIVISION OR AGENCY THEREOF, IS PLEDGED TO
THE PAYMENT OF THE PRINCIPAL OF OR INTEREST ON
THIS BOND.
REGISTERED REGISTERED
No. _______ $___________
United States of America
State of Texas
TROPHY CLUB PUBLIC IMPROVEMENT DISTRICT NO. 1
SPECIAL ASSESSMENT REVENUE REFUNDING BOND, SERIES 2015
(TOWN OF TROPHY CLUB, TEXAS)
CAPITAL APPRECIATION BOND
YIELD TO
MATURITY
ORIGINAL
PRINCIPAL
AMOUNT
MATURITY
DATE:
DELIVERY
DATE:
CUSIP
NUMBER:
________% $_________ __________, ___ __________, 2015 _______ ___
The Town of Trophy Club, Texas (the “Town”), for value received, hereby promises to
pay, solely from the Pledged Revenues, to
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_________________________________
or registered assigns, on the Maturity Date, as specified above, the Maturity Amount of this
Bond, being the sum of
____________________________ DOLLARS
The Maturity Amount represents the total of the Original Principal Amount hereof, plus
the initial premium paid hereon, together wit h interest thereon to the Maturity Date. Interest
accretes from the Closing Date specified above, and will compound semiannually on
___________ and ___________ in each year, commencing ___________. A table of the
“Accreted Values” per $1,000 Maturity Amount is printed on or attached to this Bond. The term
“Accreted Value,” as used herein, means the original principal amount of this Bond plus the
initial premium, if any, paid therefor with interest thereon accreted and compounded
semiannually to the ___________ or ___________ next preceding the date of such calculation
(or, the date of calculation, if such calculation is made on ___________ or ___________) at a
compounding rate which produces the approximate yield to maturity set forth above. For any
date other than a ___________ or ___________, the Accreted Value of this Bond shall be
determined by a straight line interpolation between the values for the applicable semiannual
compounding dates, based on 30 day months.
The Maturity Amount of this Bond shall be payable on the Maturity Date shown above,
without exchange or collection charges in lawful money of the United States of America upon
presentation and surrender of this Bond at the corporate trust office in Dallas , Texas, or at such
other location designated by the Paying Agent/Registrar (the “Designated Payment/Transfer
Office”), of The Bank of New York Mellon Trust Company, N.A., the initial Paying
Agent/Registrar, or, with respect to a successor paying agent/registrar, at the Designated
Payment/Transfer Office of such successor.
If the date for the payment of the Maturity Amount on this Bond shall be a Saturday,
Sunday, legal holiday, or day on which banking institutions in the city where the Paying
Agent/Registrar is located are required or authorized by law or executive order to close, the date
for such payment shall be the next succeeding day which is not a Saturday, Sunday, legal
holiday, or day on which banking institutions are required or authorized to close, and payment on
such date shall for all purposes be deemed to have been made on the Maturity Date.
This Bond is dated _____________, 20159 and is one of a duly authorized issue of
assessment revenue bonds of the Town having the designation specified in its title (herein
referred to as the “Bonds”), dated as of the date of delivery and issued in the aggregate principal
amount of $__________10, in part as (i) $__________ original principal amount of Current
Interest Bonds and (ii) $__________ Capital Appreciation Bonds and issued in one series, with
the limitations described herein, pursuant to an Indenture of Trust, dated as of ___________,11
2015 (the “Indenture”), from the Town to ________________,12 as trustee, to which Indenture
9 To be inserted pursuant to Pricing Certificate. 10 To be inserted pursuant to Pricing Certificate. 11 To be inserted pursuant to Pricing Certificate.
12 To be inserted pursuant t o Pricing Certificate.
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reference is hereby made for a description of the amounts thereby pledged and assigned, the
nature and extent of the lien and security, the respective rights thereunder to the holders of the
Bonds, the Trustee, and the Town, and the terms upon which the Bonds are, and are to be,
authenticated and delivered and by this reference to the terms of which each holder of this Bond
hereby consents, All Bonds issued under the Indenture are equally and ratably secured by the
amounts thereby pledged and assigned. The Bonds are being issued for the purpose of
(i) refunding outstanding special assessment revenue bonds, (ii) funding a portion of certain
reserves as provided in Article VI, and (iii) paying the costs of issuing the Bonds. This Bond is a
Capital Appreciation Bond.
The Bonds are limited obligations of the Town payable solely from the Pledged
Revenues and Pledged Funds as defined in the Indenture. Reference is hereby made to the
Indenture, copies of which are on file with and available upon request from the Trustee, for the
provisions, among others, with respect to the nature and extent of the duties and obligations of
the Town, the Trustee and the Owners. The Owner of this Bond, by the acceptance hereof, is
deemed to have agreed and consented to the terms, conditions and provisions of the Indenture.
Notwithstanding any provision hereof, the Indenture may be released and the obligation
of the Town to make money available to pay this Bond may be defeased by the deposit of money
and/or certain direct or indirect Defeasance Securities sufficient for such purpose as described in
the Indenture.
The Bonds are issuable as fully registered bonds only in denominations and Maturity
Amounts of $1,000 and any $1,000 multiple in excess thereof, subject to the provisions of the
Indenture authorizing redemption.
[The Town reserves the right and option to redeem Bonds, in whole or in part, on
___________ 1, 20__ or any date thereafter, such redemption date or dates to be fixed by the
Town, at the Redemption Price set forth below plus accrued and unpaid interest to the date fixed
for redemption:
Redemption Period
Redemption
Price
December 1, 20__ through November 30, 20__ ___%
December 1, 20__ through November 30, 20__ ___%
December 1, 20__ through November 30, 20__ ___%
December 1, 20__ and thereafter ___%
Bonds are subject to extraordinary mandatory redemption prior to Maturity in whole or in
part, on any business day at a Redemption Price equal to the principal amount of the Bonds
called for redemption, plus the applicable premium, if any, plus accrued and unpaid interest to
the date fixed for redemption from amounts on deposit in the Redemption Fund as a result of the
Prepayments or from Foreclosure Proceeds.]13
13 To be inserted pursuant to Pricing Certificate.
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The Trustee shall give notice of any redemption of Bonds by sending notice by first class
United States mail, postage prepaid, not less than 30 days before the date fixed for redemption,
to the Owner of each Bond (or part thereof) to be redeemed, at the address shown on the
Register. The notice shall state the redemption date, the Redemption Price, the place at which the
Bonds are to be surrendered for payment, and, if less than all the Bonds Outstanding are to be
redeemed, an identification of the Bonds or portions thereof to be redeemed. Any notice so given
shall be conclusively presumed to have been duly given, whether or not t he Owner receives such
notice.
The Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Town and the rights of the
holders of the Bonds under the Indenture at any time Outstanding affected by such modification.
The Indenture also contains provisions permitting the holders of specified percentages in
aggregate principal amount of the Bonds at the time Outstanding, on behalf of the holders of all
the Bonds, to waive compliance by the Town with certain past defaults under the Bond
Ordinance or the Indenture and their consequences. Any such consent or waiver by the holder of
this Bond or any predecessor Bond evidencing the same debt shall be conclusive and binding
upon such holder and upon all future holders thereof and of any Bond issued upon the transfer
thereof or in exchange therefor or in lieu thereof, whether or not notation of such consent or
waiver is made upon this Bond.
As provided in the Indenture, this Bond is transferable upon surrender of this Bond for
transfer at the Designated Payment/Transfer Office, with such endorsement or other evidence of
transfer as is acceptable to the Trustee, and upon delivery to the Trustee of such certifications
and/or opinion of counsel as may be required under the Indenture for the transfer of this Bond.
Upon satisfaction of such requirements, one or more new fully registered Bonds of the same
Stated Maturity, of Authorized Denominations, bearing the same rate of interest, and for the
same aggregate principal amount will be issued to the designated transferee or transferees.
Neither the Town nor the Trustee shall be required to issue, transfer or exchange any
Bond called for redemption where such redemption is scheduled to occur within 45 calendar
days of the transfer or exchange date; provided, however, such limitation shall not be applicable
to an exchange by the registered owner of the uncalled principal balance of a Bond.
The Town, the Trustee, and any other Person may treat the Person in whose name this
Bond is registered as the owner hereof for the purpose of receiving payment as herein provided
(except interest shall be paid to the Person in whose name this Bond is registered on the Maturity
Date) and for all other purposes, whether or not this Bond be overdue, and neither the Town nor
the Trustee shall be affected by notice to the contrary.
NEITHER THE FULL FAITH AND CREDIT NOR THE GENERAL TAXING POWER
OF THE TOWN OF TROPHY CLUB, TEXAS, DENTON COUNTY, TEXAS OR THE
STATE OF TEXAS, OR ANY POLITICAL SUBDIVISION THEREOF, IS PLEDGED TO
THE PAYMENT OF THE BONDS.
IT IS HEREBY CERTIFIED AND RECITED that the issuance of this Bond and the
series of which it is a part is duly authorized by law; that all acts, conditions and things required
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to be done precedent to and in the issuance of the Bonds have been properly done and performed
and have happened in regular and due time, form and manner, as required by law; and that the
total indebtedness of the Town, including the Bonds, does not exceed any Constitutional or
statutory limitation.
IN WITNESS WHEREOF, the Town has caused this Bond to be executed in its name by
the manual or facsimile signature of the Mayor and countersigned by the manual or facsimile
signature of the Town Secretary, and the official seal of the Town has been duly imprinted or
placed in facsimile on this Bond.
Town Secretary, Town of Trophy Club, Texas Mayor, Town of Trophy Club, Texas
[Seal]
(b) Form of Comptroller’s Registration Certificate.
The following Comptroller’s Registration Certificate of the Comptroller of Public
Accounts shall appear on each Initial Bond in lieu of the Certificate of Trustee:
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER §
OF PUBLIC ACCOUNTS § REGISTER NO.__________
THE STATE OF TEXAS §
I HEREBY CERTIFY THAT there is on file and of record in my office a certificate to
the effect that the Attorney General of the State of Texas has approved this Bond, and that this
Bond has been registered this day by me.
WITNESS MY SIGNATURE AND SEAL OF OFFICE this ____________________.
____________________________________
Comptroller of Public Accounts of the
State of Texas
[SEAL]
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(c) Form of Certificate of Trustee.
The following Certificate of Trustee may be deleted from the Initial Bond if the
Comptroller’s Registration Certificate is attached thereto:
CERTIFICATE OF TRUSTEE
It is hereby certified that this is one of the Bonds of the series of Bonds referred to in the
within mentioned indenture.
The Bank of New York Mellon Trust Company,
N.A.
DATED: ________________________ as Trustee
_______________________________________
Authorized Signatory
(d) Form of Assignment.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto
(print or typewrite name, address and Zip Code of transferee): ____________________________
______________________________________________________________________________
______________________________________________________________________________
(Social Security or other identifying number: __________________) the within Bond and all
rights hereunder and hereby irrevocably constitutes and appoints ___________________
attorney to transfer the within Bond on the books kept for registration hereof, with full power of
substitution in the premises.
Date: ________________________
Signature Guaranteed By:
_____________________________
_____________________________
Authorized Signatory
____________________________________________
NOTICE: The signature on this Assignment must
correspond with the name of the registered owner as it
appears on the face of the within Bond in every
particular and must be guaranteed in a manner
acceptable to the Trustee.
(e) The Initial Bond shall be in the form set forth in paragraphs (a) t hrough (d)
of this section, except for the following alterations:
(i) immediately under the name of the Bond the heading “YIELD TO
MATURITY,” ORIGINAL PRINCIPAL AMOUNT” and “MATURITY DATE” shall
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both be completed with the expression “As Shown Below,” and the reference to the
“CUSIP NUMBER” shall be deleted;
(ii) in the first paragraph of the Bond, the words “on the Maturity Date
specified above, the Maturity Amount of this Bond, being the sum of $____________
DOLLARS” shall be deleted and the following will be inserted: “on __________14 in
each of the years, in the Original Principal Amounts and Maturity Amounts principal and
with interest at the compounding rates which produce the respective approximate Yield to
Maturity set forth in the following schedule:
Years Original Principal Amount Yield to Maturity Maturity Amount
(Information to be inserted from the Pricing Certificate); and
(iii) the Initial Capital Appreciation Bond shall be numbered ICA-1.
Section 5.4 CUSIP Registration.
The Town may secure identification numbers through t he CUSIP Service Bureau
Division of Standard & Poor’s Corporation, New York, New York, and may authorize the
printing of such numbers on the face of the Bonds. It is expressly provided, however, that the
presence or absence of CUSIP numbers on the Bonds shall be of no significance or effect as
regards the legality thereof and neither the Town nor the attorneys approving said Bonds as to
legality are to be held responsible for CUSIP numbers incorrectly printed on the Bonds.
Section 5.5 Legal Opinion.
The approving legal opinion of Bracewell & Giuliani LLP, Bond Counsel, may be
printed on or attached to each Bond over the certification of the Town Secretary, which may be
executed in facsimile.
Section 5.6 Statement of Insurance.
A statement relating to a municipal bond insurance policy, if any, to be issued for the
Bonds may be printed on or attached to each Bond.
ARTICLE VI
FUNDS AND ACCOUNTS
Section 6.1 Establishment of Funds and Accounts.
(a) Creation of Funds.
(i) The following Funds are hereby created and established under this
Indenture:
14 Insert from Pricing Certificate
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(A) Pledged Revenue Fund;
(B) Bond Fund;
(C) Reserve Fund;
(D) Prepayment/Delinquency Fund;
(E) Redemption Fund;
(F) Rebate Fund; and
(G) Administrative Fund.
(b) Each Fund shall be maintained by the Trustee separate and apart from all
other funds and accounts of the Town. The Pledged Funds shall constitute trust funds which shall
be held in trust by the Trustee as part of the Trust Estate solely for the benefit of the Owners of
the Bonds.
(c) Interest earnings and profit on each respective Fund established by this
Indenture shall be applied or withdrawn for t he purposes of such Fund as specified below.
Section 6.2 Initial Deposits to Funds.
(a) The proceeds from the sale of the Bonds and lawfully available funds of
the Town shall be paid to the Trustee and deposited or transferred by the Trustee as follows:
(i) to the Reserve Fund, lawfully available funds of the Town and
Bond proceeds in the amount s set forth in the Pricing Certificate;
(ii) to the Prepayment/Delinquency Fund, Bond proceeds plus lawfully
available funds of the Town, in the amount s set forth in the Pricing Certificate; and
(iii) to a special account of the Town, Bond proceeds in the amount
specified in the Pricing Certificate for the payment of costs of issuance of the Bonds.
Section 6.3 Pledged Revenue Fund.
(a) Within 30 days of their receipt by the Town while the Bonds are
Outstanding, t he Town shall deposit or cause to be deposited the Pledged Revenues into the
Pledged Revenue Fund commencing in the first year following the issuance of the Bonds in
which the Assessments are collected. Funds in the Pledged Revenue Fund shall be transferr ed in
the following priority:
(i) First, to the Bond Fund an amount sufficient to pay Annual Debt
Service on the Bonds for the current Bond Year.
(ii) Second, to the Reserve Fund an amount necessary to cause the
amount in the Reserve Fund to equal the Reserve Fund Requirement.
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(iii) Third, to the Prepayment/Delinquency Fund an amount necessary
to cause the amount in the Prepayment/Delinquency Fund to equal the
Prepayment/Delinquency Fund Requirement.
(iv) Fourth by Town Order (i) to the Administrative Fund to pay
Annual Collection Costs, (ii) to the Redemption Fund to redeem Bonds pursuant to
Article IV herein, or (iii) to the Bond Fund to pay Debt Service on the Bonds.
(b) From time to time as needed to pay the obligations relating to the Bonds,
but no later than five (5) Business Days before each Interest Payment Date, the Trustee shall
withdraw from the Pledged Revenue Fund and transfer to the Bond Fund, an amount, taking into
account any amounts then on deposit in such Bond Fund, such that the amount on deposit in the
Bond Fund equals the principal (including any Sinking Fund Installments) and interest due on
the Bonds on the next Interest Payment Date.
(c) If, after the foregoing transfers and any transfer from the Reserve Fund as
provided in Section 6.6 herein, there are insufficient funds to make the payments provided in
paragraph (b) above, the Trustee shall apply the available funds in the Bond Fund first to the
payment of interest, then to the payment of principal (including any Sinking Fund Installments).
(d) Notwithstanding 6.3(a) above, Pledged Revenues consisting of
Prepayments shall be transferred to the Redemption Fund promptly after deposit of such amounts
into the Pledged Revenue Fund.
(e) Notwithstanding 6.3(a) above, Pledged Revenues consisting of
Foreclosure Proceeds shall be deposited first, to the Prepayment/Delinquency Fund, to restore
any transfers from the made with respect to the Assessed Parcel or Assessed Parcels to which the
Foreclosure Proceeds relate, second to the Reserve Fund to restore any transfers from the
Reserve Fund and third, to the Redemption Fund in order to redeem Bonds pursuant to the
extraordinary mandatory redemption provisions of Section 4.4. Notwithstanding the foregoing,
any portion of Foreclosure Proceeds that are attributable to Collection Costs shall be deposited to
the Administrative Fund.
(f) Notwithstanding 6.3(a) above, all amounts representing Delinquent
Penalties and Interest shall be deposited to the Prepayment/Delinquency Fund to restore any
transfers from the Prepayment/Delinquency Fund made with respect to the Assessed Parcel or
Assessed Parcels to which the Delinquent Penalties and Interest relate.
(g) All amounts representing Annual Collection Costs shall be deposited to
the Administration Fund and used for the payment of Collection Costs.
(h) Any amounts remaining in the Pledged Revenue Fund after the
satisfaction of the foregoing payments may be used for the payment of Debt Service on the
Bonds, the payment of Annual Collection Costs, or the redemption of Bonds.
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Section 6.4 Bond Fund.
(a) On each Interest Payment Date, the Trustee shall withdraw from the Bond
Fund and transfer to the Paying Agent/Registrar the principal (including any Sinking Fund
Installments) and interest then due and payable on the Bonds.
(b) If amounts in the Bond Fund are insufficient for the purposes set forth in
paragraph (a) above, the Trustee shall withdraw first from the Prepayment/Delinquency Fund
and second from the Reserve Fund, amounts to cover the amount of such insufficiency. Amounts
so withdrawn from the Reserve Fund or Prepayment/Delinquency Fund or Reserve Fund shall be
deposited in the Bond Fund and transferred to the Paying Agent/Registrar.
Section 6.5 Redemption Fund.
(a) Amounts on deposit in the Redemption Fund shall be used and withdrawn
by the Trustee to redeem Bonds as provided in Article IV. The Trustee shall cause to be
deposited to the Redemption Fund from the Pledged Revenue Fund and from transfers of
Prepayment and Foreclosure Proceeds as provided herein an amount sufficient to redeem Bonds
as provided in Article IV on the dates specified for redemption as provided in Article IV.
Section 6.6 Reserve Fund.
(a) Subject to subsection (c) below, a ll amounts deposited in the Reserve
Fund shall be used and withdrawn by the Trustee for the purpose of making transfers to the Bond
Fund in the event of any deficiency in such Bond Fund on any Interest Payment Date, such
transfer to be subsequent to any transfers made pursuant to Section 6.7 herein, or any date on
which principal of the Bonds is due. Whenever, on any Interest Payment Date, the amount on
deposit in the Bond Fund is insufficient to pay debt service on the Bonds on such date, the
Trustee shall transfer from the Reserve Fund amounts necessary to cure such deficiency.
(b) Whenever a transfer is made from the Reserve Fund to the Bond Fund due
to a deficiency in the Bond Fund, the Trustee shall provide written notice thereof to the Town,
specifying the amount withdrawn.
(c) Whenever, at the request of a Town Representative on any Interest
Payment Date, or on any other date, the amount in the Reserve Fund exceeds the Reserve Fund
Requirement, the Trustee shall provide written notice to the Town Representative of the amount
of the excess. Such excess shall be transferred to the Prepayment/Delinquency Fund until the
Prepayment/Delinquency Fund reaches the Prepayment/Delinquency Requirement unless within
thirty days of such notice to the Town Representative, the Trustee receives a Town Order
instructing the Trustee to apply such excess: (i) to pay amounts due under Section 6.8 hereof, or
(ii) to the Redemption Fund for the redemption of Bonds pursuant to Section 4.3 herein, or (iii)
to the Administrative Fund.
(d) At the final maturity of the Bonds, the amount on deposit in the Reserve
Fund and the Prepayment/Delinquency Fund shall be transferred to the Redemption Fund and
applied to the payment of the principal of the Bonds.
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(e) If, after a Reserve Fund withdrawal, the amount on deposit in the Reserve
Fund is less than the Reserve Fund Requirement, the Trustee shall transfer from the Pledged
Revenue Fund to the Reserve Fund the amount of such deficiency, but only to the extent that
such amount is not required for the timely payment of principal, interest, or Sinking Fund
Installments.
(f) If the amount held in the Reserve Fund together with the amount held in
the Bond Fund, Prepayment/Delinquency Fund and Redemption Fund is sufficient to pay the
principal amount of all Outstanding Bonds on the next Interest Payment Date, together with the
unpaid interest accrued on such Bonds as of such Interest Payment Date, the moneys shall be
transferred to the Redemption Fund and thereafter used to redeem all Bonds as of such Interest
Payment Date.
Section 6.7 Prepayment/Delinquency Fund.
(a) Whenever Bonds are to be redeemed with the proceeds of Prepayments
pursuant to Section 4.4, if there are insufficient funds in the Redemption Fund from such
Prepayments to redeem the Bonds on their redemption date, the Trustee shall transfer funds from
the Prepayment /Delinquency Fund to the Redemption Fund in the amount of the deficiency and
such funds shall be used to redeem Bonds pursuant to Section 4.4. Whenever, at the written
request of the Town Representative, on any Interest Payment Date or on any other date, the
amount in the Prepayment/Delinquency Fund exceeds the Prepayment /Delinquency
Requirement, the Trustee sha ll provide written notice to the Town of the amount of the excess.
The Town shall direct the Trustee to transfer the amounts of such excess in the
Prepayment /Delinquency Fund to (i) the Reserve Fund to restore the Reserve Fund to the
Reserve Fund Requirement , (ii) to the Administrative Fund, (iii) to the Redemption Fund to be
used to redeem Bonds pursuant to Section 4.3, or (iv) to the Bond Fund to pay Debt Service on
the Bonds.
(b) Whenever, on any Interest Payment Date, the amount on deposit in the
Bond Fund is insufficient to pay debt service on the Bonds on such date as a result of delinquent
payment of Assessments, the Trustee shall transfer from the Prepayment/Delinquency Fund,
amounts necessary to cure such deficiency.
Section 6.8 Rebate Fund: Rebatable Arbitrage.
(a) There is hereby established a special fund of the Town to be designated
“Trophy Club Public Improvement District No. 1, Rebate Fund” (the “Rebate Fund”) to be held
by the Trustee in accordance with the terms and provisions of this Indenture. Amounts on depo sit
in the Rebate Fund shall be used solely for the purpose of paying amounts due the United States
Government in accordance with the Code.
(b) The Town hereby certifies and covenants that it will not, and will not
direct the Trustee to use, or permit the use of any proceeds of the Bonds, directly or indirectly, in
any manner, and shall not take or omit to take any action, if such use, action or omission would
cause the Bonds to be treated as an obligation not described in Section 103(a) of the Code. In
further ance of the foregoing, the Town specifically covenants to comply with the provisions and
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procedures of the Federal Tax Certificate delivered concurrently with the delivery of the Bonds,
which is incorporated herein by reference as if set forth in full herein. In the case of any
inconsistency between this Section 6.7 and the Federal Tax Certificate, the provisions of the
Federal Tax Certificate shall control. The covenants herein made and the certifications herein
authorized are for the benefit of the Owners with respect to the Bonds and may be relied upon by
such Owners and by Bond Counsel rendering opinions on the same. Within the limitations of this
Article VI, the Town shall be permitted to transfer money from one Fund to another, adjust
interest rates on Investment Securities or take such other actions as may be required in order to
prevent the Bonds from becoming “arbitrage bonds.”
(c) The Town hereby covenants to cause to be calculated, at the times and in
the manner set forth in the Federal Tax Certificate and in compliance with the Code, the amount
of Rebatable Arbitrage determined with respect to the Bonds and shall, within ten (10) Business
Days of such calculation, pursuant to a Town Order, direct the Trustee to transfer to the Rebate
Fund from the accounts designated in such Town Order, an amount equal to the amount of the
Rebatable Arbitrage determined on such date of calculation, The Town hereby covenants to
direct the Trustee to deposit to the Rebate Fund such amounts as will cause the amount on
deposit therein to equal the Rebatable Arbitrage determined on the applicable calculation date.
(d) The Town hereby covenants to direct the Trustee to pay Rebatable
Arbitrage to the United States in installments as required under the Code. In order to assure that
Rebatable Arbitrage is paid to the United States rather than to a third party, investments of funds
on deposit in the Rebate Fund shall be made in accordance with the Code and the Federal Tax
Certificate.
(e) The Town shall keep and retain for a period of six (6) years following
retirement of the Bonds, records of the determinations made pursuant to this Section 6.8 and the
Federal Tax Certificate.
(f) The Trustee conclusively shall be deemed to have complied with the
provisions of this Section and shall not be liable or responsible if it follows the instructions of the
Town and shall not be required to take any action under this Section in the absence of
instructions from the Town.
(g) If, on the date of each annual calculation, the amount on deposit in the
Rebate Fund exceeds the amount of the Rebatable Arbitrage, the Town may direct the Trustee,
pursuant to a Town Order, to transfer the amount in excess of the Rebatable Arbitrage to the
Bond Fund.
Section 6.9 Administrative Fund.
(a) Immediately upon receipt thereof; the Town shall deposit or cause to be
deposited to the Administrative Fund the annual portion of the Assessments collected for Annual
Collection Costs.
(b) Moneys in the Administrative Fund shall be held by the Trustee separate
and apart from the other Funds created and administered hereunder and used as directed by a
Town Order solely for the purposes set forth in the Service and Assessment Plan.
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Section 6.10 Investment of Funds.
(a) Money in any Fund established pursuant to this Indenture shall be invested
by the Trustee as directed by the Town pursuant to a Town Order filed with the Trustee at least
two (2) Business Days in advance of the making of such investment in time deposits or
certificates of deposit secured in the manner required by law for public funds, or be invested in
direct obligations of, including obligations the principal and interest on which are
unconditionally guaranteed by, the United States of America, in obligations of any agencies or
instrumentalities thereof, or in such other investments as are permitted under the Public Funds
Investment Act of 1987, Chapter 2256 Texas Government Code, as amended, or any successor
law, as in effect from time to time; provided that all such deposits and investments shall be made
in such manner (which may include repurchase agreements for such investment with any primary
dealer of such agreements) that the money required to be expended from any Fund will be
available at the proper time or times. Such investments shall be valued each year in terms of
current market value as of September 30. Oral investment instructions by the Town to the
Trustee are not permitted.
(b) Obligations purchased as an investment of moneys in any Fund shall be
deemed to be part of such Fund, subject, however, to the requirements of this Indenture for
transfer of int erest earnings and profits resulting from investment of amounts in Funds.
Whenever in this Indenture any moneys are required to be transferred by the Town to the
Trustee, such transfer may be accomplished by transferring a like amount of Investment
Securities.
(c) The Trustee and its affiliates may act as sponsor, advisor, depository,
principal or agent in the acquisition or disposition of any investment and may receive
compensation in connection therewith. The Trustee may rely conclusively on the direction of the
Town regarding investments as to the suitability thereof and the compliance thereof with the
terms of this Indenture. The Trustee shall not incur any liability for losses arising from any
investments made pursuant to this Section. The Trustee shall not be required to determine the
legality of any investments.
(d) Investments in any and all Funds may be commingled in a separate fund
or funds for purposes of making, holding and disposing of investments, notwithstanding
provisions herein for transfer to or holding in or to the credit of particular Funds of amounts
received or hold by the Trustee hereunder, provided that the Trustee shall at all times account for
such investments strictly in accordance with the Funds to which they are credited and otherwise
as provided in this Indenture.
(e) The Trustee will furnish the Town periodic cash transaction statements
which include detail for all investment transactions made by the Trustee hereunder. The Trustee
is not required to provide brokerage confirmations so long as it provides for the periodic
statements.
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Section 6.11 Security of Funds.
All Funds heretofore created or reaffirmed, to the extent not invested as herein permitted,
shall be secured in the manner and to the fullest extent required by law for the security of public
funds, and such Funds shall be used only for the purposes and in the manner permitted or
required by this Indenture.
ARTICLE VII
COVENANTS
Section 7.1 Confirmation of Assessments.
The Town hereby confirms, covenants, and agrees that, in the Assessment Ordinance, it
has levied the Assessments against the respective Assessed Parcels from which the Pledged
Revenues will be collected and received.
Section 7.2 Collection and Enforcement of Assessments.
(a) For so long as any Bonds are Outstanding and subject to available funds,
the Town covenants, agrees and warrants that it will take and pursue all actions permissible
under Applicable Laws to cause the Assessments to be collected and the liens thereof enforced
continuously, in the manner and to the maximum extent permitted by Applicable Laws, and to
cause no reduction, abatement or exemption in the Assessments.
(b) The Town will determine or cause to be determined, no later than April 1
of each year, whether or not any Annual Installment is delinquent and, if such delinquencies
exist, subject to available funds, the Town will order and cause to be commenced as soon as
practicable any and all appropriate and legally permissible actions to obtain such Annual
Installment , any delinquent charges and interest thereon, including diligently prosecuting an
action in Town court to foreclose the currently delinquent Annual Installment . Notwithstanding
the foregoing, the Town shall not be required under any circumstances to purchase or make
payment for the purchase of the delinquent Assessment or the corresponding Assessed Parcel.
Section 7.3 Against Encumbrances.
(a) The Town shall not create and, to the extent Pledged Revenues are
received, shall not suffer to remain, any lien, encumbrance or charge upon the Pledged Revenues
or upon any other property pledged under this Indenture, except the pledge created for the
security of the Bonds or for any Refunding Bonds issued to refund the Bonds, in whole or in
part.
(b) So long as Bonds are Outstanding hereunder, the Town shall not issue any
bonds, notes or other evidences of indebtedness other than the Bonds secured by any pledge of or
other lien or charge on the Pledged Revenues or other property pledged under this Indenture.
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Section 7.4 Records, Accounts, Accounting Reports.
The Town hereby covenants and agrees that so long as any of the Bonds or Outstanding
Bonds or any interest thereon remain outstanding and unpaid, it will keep and maintain a proper
and complete system of records and accounts pertaining to the Assessments. The Trustee and
holder or holders of any Bonds or any duly authorized agent or agents of such holders, shall have
the right at all reasonable times to inspect all such records, accounts and data relating thereto,
upon written request to the Town by the Trustee or duly authorized representative, as applicable.
The Town shall provide the Trustee or duly authorized representative, as applicable, an
opportunity to inspect such books and records during the Town’s regular business hours and on a
mutually agreeable date not later than thirty days after the Town receives such request.
Section 7.5 Provisions Concerning Federal Income Tax Exclusion.
The Town intends that the interest on the Bonds shall be excludable from gross income
for purposes of federal income taxation pursuant to sections 103 and 141 through 150 of the
Internal Revenue Code of 1986, as amended (the “Code”), and the applicable Treasury
Regulations (the “Regulations”). The Town covenants and agrees not to take any action, or
knowingly omit to take any action within its control, that if taken or omitted, respectively, would
(i) cause the interest on the Bonds to be includable in gross income, as defined in Section 61 of
the Code, for federal income tax purposes or (ii) result in the violation of or a failure to satisfy
any provision of Section 103 or 141 through 150 of the Code and the applicable Regulations. In
particular, the Town covenants and agrees to comply with each requirement of this Section 7.5
and Sections 7.6 through 7.14 of this Article VII; provided, however, that the Town shall not be
required to comply with any particular requirement of Sections 7.6 through 7.14 of this
Article VII if the Town has received an opinion of Bond Counsel (“Counsel’s Opinion”) that (i)
such noncompliance will not adversely affect the exclusion from gross income for federal
income tax purposes of interest on the Bonds or (ii) compliance with some other requirement set
forth in Sections 7.6 through 7.14 of this Article VII will satisfy the applicable requirements of
the Code, in which case compliance with such other requirement specified in such Counsel’s
Opinion shall constitute compliance with the corresponding requirement specified in Sections 7.6
through 7.14 of this Article VII.
Section 7.6 No Private Use or Payment and No Private Loan Financing.
The Town covenants and agrees that it will make such use of the proceeds of the Bonds,
including interest or other investment income derived from Bond proceeds, regulate the use of
property financed, directly or indirectly, with such proceeds, and take such other and further
action as may be required so that the Bonds will not be “private activity bonds” within the
meaning of Section 141 of the Code and the Regulations promulgated thereunder. The Town
shall certify, through an authorized officer, employee or agent, that, based upon all facts and
estimates known or reasonably expected to be in existence on the date the Bonds are delivered,
the proceeds of the Bonds will not be used in a manner that would cause the Bonds to be “private
activity bonds” within the meaning of Section 141 of the Code and the Regulations pro mulgated
thereunder. The Town covenants and agrees that the levied Assessments will meet the
requirements for the “tax assessment loan exception” within the meaning of Section 1.141-5(d)
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of the Regulations on the date the Bonds are delivered and will ensure that the Assessments
continue to meet such requirements for so long as the Bonds are Outstanding hereunder.
Section 7.7 No Federal Guaranty.
The Town covenants and agrees not to take any action, or knowingly omit to take any
action within its control, that, if taken or omitted, respectively, would cause the Bonds to be
“federally guaranteed” within the meaning of Section 149(b)(2) of the Code and the applicable
Regulations thereunder, except as permitted by Section 149(b)(3) of the Code and such
Regulations.
Section 7.8 No Hedge Bonds.
The Town covenants and agrees not to take any action, or knowingly omit to take any
action within its control, that if taken or omitted, respectively, would cause the Bonds to be
“hedge bonds” within the meaning of Section 149(g) of the Code and the applicable Regulations
thereunder.
Section 7.9 No-Arbitrage.
The Town covenants and agrees that it will make such use of the proceeds of the Bonds
including interest or other investment income derived from Bond proceeds, regulate investments
of proceeds of the Bonds, and take such other and further action as may be required so that the
Bonds will not be “arbitrage bonds” within the meaning of Section 148(a) of the Code and the
Regulations promulgated thereunder. Moreover, the Town shall certify, through an authorized
officer, employee or agent, that, based upon all facts and estimates known or reasonably
expected to be in existence on the date the Bonds are delivered, that the proceeds of the Bonds
will not be used in a manner that would cause the Bonds to be “arbitrage bonds” within the
meaning of Section 148(a) of the Code and the applicable Regulations promulgated thereunder.
Section 7.10 Arbitrage Rebate.
If the Town does not qualify for an exception to the requirements of Section 148(f) of the
Code, the Town will take all necessary steps to comply with the requirement that certain amounts
earned by the Town on the investment of the “gross proceeds” of the Bonds (within the meaning
of Section 148(f)(6)(B) of the Code), be rebated to the federal government. Specifically, the
Town will (1) maintain records regarding the investment of the gross proceeds of the Bonds as
may be required to calculate the amount earned on the investment of the gross proceeds of the
Bonds separately from records of amounts on deposit in the funds and accounts of the Town
allocable to other bond issues of the Town or moneys that do not represent gross proceeds of any
bonds of the Town, (ii) determine at such times as are required by the Regulations, the amount
earned from the investment of the gross proceeds of the Bonds that is required to be rebated to
the federal government, and (iii) pay, not less often than every fifth anniversary date of the
delivery of the Bonds or on such other dates as may be permitted under the Regulations, all
amounts required to be rebated to the federal government. Further, the Town will not indirectly
pay any amount otherwise payable to the federal government pursuant to the foregoing
requirements to any Person other than the federal government by entering into any investment
arrangement with respect to the gross proceeds of the Bonds that might result in a reduction in
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the amount required to be paid to the federal government because such arrangement results in a
smaller profit or a larger loss than would have resulted if the arrangement had been at arm’s
length and had the yield on the issue not been relevant to either party.
Section 7.11 Information Reporting.
The Town covenants and agrees to file or cause to be filed with the Secretary of the
Treasury, not later than the 15th day of the second calendar month after the close of the calendar
quarter in which the Bonds are issued, an information statement concerning the Bonds, all under
and in accordance with Section 149(e) of the Code and the applicable Regulations promulgated
thereunder.
Section 7.12 Record Retention.
The Town will retain all pertinent and material records relating to the use and expenditure
of the proceeds of the Bonds until three years after the last Bond is redeemed, or such shorter
period as authorized by subsequent guidance issued by the Department of Treasury, if applicable.
All records will be kept in a manner that ensures their complete access throughout the retention
period. For this purpose, it is acceptable that such records are kept either as hardcopy books and
records or in an electronic storage and retrieval system, provided that such electronic system
includes reasonable controls and quality assurance programs that assure the ability of the Town
to retrieve and reproduce such books and records in the event of an examination of the Bond s by
the Internal Revenue Service.
Section 7.13 Registration.
The Bonds will be issued in registered form.
Section 7.14 Deliberate Actions.
The Town will not take a deliberate action (as defined in section 1.141-2(d)(3) of the
Regulations) that causes the Bonds to fail to meet any requirement of section 141 of the Code
after the issue date of the Bonds unless an appropriate remedial action is permitted by section
1.141-12 of the Regulations and an opinion of Bond Counsel is obtained that such remedial
action cures any failure to meet the requirements of section 141 of the Code.
Section 7.15 Continuing Obligation.
Notwithstanding any other provision of this Indenture, the Town’s obligations under the
covenants and provisions of Sections 7.5 through 7.14 of this Article VII shall survive the
defeasance and discharge of the Bonds for so long as such matters are relevant to the exclusion
from gross income of interest on the Bonds for federal income tax purposes.
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ARTICLE VIII
LIABILITY OF TOWN
The Town shall not incur any responsibility in respect of the Bonds or this Indenture
other than in connection with the duties or obligations explicitly herein or in the Bonds assigned
to or imposed upon it. The Town shall not be liable in connection with the performance of its
duties hereunder, except for its own gross negligence or willful default. The Town shall not be
bound to ascertain or inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements of the Trustee herein or of any of the documents executed by the
Trustee in connection with the Bonds, or as to the existence of a default or event of default
thereunder.
In the absence of bad faith, the Town may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Town and conforming to the requirements of this Indenture. The Town shall not
be liable for any error of judgment made in good faith unless it shall be proved that it was
negligent in ascertaining the pertinent facts.
No provision of this Indenture, the Bonds, the Assessment Ordinance or any agreement,
document, instrument or certificate executed, delivered or approved in connection with the
issuance, sale, delivery of administration of the Bonds (the “Bond Documents”) shall require the
Town to expend or risk its own general funds or otherwise incur any financial liability (other
than with respect to the Pledged Revenues and the Annual Collection Costs) in the performance
of any of its obligations hereunder, or in the exercise of any of its rights or powers, if in the
judgment of the Town there are reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it.
Neither the Owners nor any other Person shall have any claim against the Town or any of
its officers, officials, agents, or employees for damages suffered as a result of the Town’s failure
to perform in any respect any covenant, undertaking, or obligation under any Bond Documents
or as a result of the incorrectness of any representation in, or omission from, any of the Bond
Documents, except to the extent that any such claim relates to an obligation, undertaking,
representation or covenant of the Town, in accordance with the Bond Documents and the PID
Act. Any su ch claim shall be payable only from Pledged Revenues or the Annual Colle ction
Costs. Nothing contained in any of the Bond Documents shall be construed to preclude any
action or proceeding in any court or before any governmental body, agency or instrumentality
against the Town or any of its officers, officials, agents, or employees to enforce the provisions
of any of the Bond Documents or to enforce all rights of the Owners of the Bonds by mandamus
or other proceeding at law or in equity.
The Town may rely a nd shall be protected in acting or refraining from acting upon any
notice, resolution, request, consent, order, certificate, report, warrant, bond or other paper or
document believed by it to be genuine and to have been signed or presented by the proper party
or proper parties. The Town may consult with counsel, with regard to legal questions, and the
opinion of such counsel shall be full and complete authorization and protection in respect of any
action taken or suffered by it hereunder in good faith and in accordance therewith.
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Whenever in the administration of its duties under this Indenture the Town shall deem it
necessary or desirable that a matter be proved or established prior to taking or suffering any
action hereunder, such matter (unless other evid ence in respect thereof be herein specifically
prescribed) may, in the absence of willful misconduct on the part of the Town, be deemed to be
conclusively proved and established by a certificate of the Trustee, an Independent Financial
Consultant, an independent inspector or the Administrator, and such certificate shall be full
warrant to the Town for any action taken or suffered under the provisions of this Indenture upon
the faith thereof, but in its discretion the Town may, in lieu thereof, accept other evidence of
such matter or may require such additional evidence as to it may seem reasonable.
In order to perform its duties and obligations hereunder, the Town may employ such
persons or entities as it deems necessary or advisable. The Town shall not be liable for any of the
acts or omissions of such persons or entities employed by it in good faith hereunder, and shall be
entitled to rely, and shall be fully protected in doing so, upon the opinions, calculations,
determinations and directions of such perso ns or entities.
ARTICLE IX
THE TRUSTEE
Section 9.1 Trustee as Registrar and Paving Agent.
The Trustee is hereby designated and agrees to act as Registrar and Paying Agent for and
in respect to the Bonds.
Section 9.2 Trustee Entitled to Indemnity.
The Trustee shall be under no obligation to institute any suit, or to undertake any
proceeding under this Indenture, or to enter any appearance or in any way defend in any suit in
which it may be made defendant, or to take any steps in the execution of the trusts hereby created
or in the enforcement of any rights and powers hereunder, until it shall be indemnified to its
satisfaction against any and all costs and expenses, outlays and counsel fees and other reasonable
disbursements, and against all liability except as a consequence of its own negligence or willful
misconduct. Nevertheless, the Trustee may begin suit, or appear in and defend suit, or do
anything else in its judgment proper to be done by it as the Trustee, without indemnity, and in
such case the Trustee may make transfers from the Pledged Revenue Fund to pay all costs and
expenses, outlays and counsel fees and other reasonable disbursements properly incurred in
connection therewith and shall be entitled to a preference therefor over any Bonds Outstanding
hereunder.
Section 9.3 Responsibilities of the Trustee.
The recitals contained in this Indenture and in the Bonds shall be taken as the statements
of the Town and the Trustee assumes no responsibility for the correctness of the same or for the
offering documents. The Trustee makes no representations as to the validity or sufficiency of this
Indenture or the Bonds or with respect to the security afforded by this Indenture, and the Trustee
shall incur no liability with respect thereto. Except as otherwise expressly provided in this
Indenture, the Trustee shall have no responsibility or duty with respect to: (i) the issuance of
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Bonds for value; (ii) the application of the proceeds thereof, except to the extent that such
proceeds are received by it in its capacity as Trustee; (iii) the application of any moneys paid to
the Town or others in accordance with this Indenture, except as to the application of any moneys
paid to it in its capacity as Trustee; or (iv) any calculation of arbitrage or rebate under the Code.
The Trustee has the right to act through agents and attorneys. Permissive rights of the Trustee
are not to be construed as duties.
The duties and obligations of the Trustee shall be determined by the express provisions of
this Indenture, and the Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture.
The Trustee shall not be liable for any action taken or omitted by it in the performance of
its duties under this Indenture, except for its own negligence or willful misconduct.
Section 9.4 Property Held in Trust.
All moneys and securities held by the Trustee at any time pursuant to the terms of this
Indenture shall be held by the Trustee in trust for the purposes and under the terms and
conditions of this Indenture.
Section 9.5 Trustee Protected in Relying on Certain Documents; Other Right s of the
Trustee.
The Trustee may rely upon any order, notice, request, consent, waiver, certificate,
statement, affidavit, requisition, bond or other document provided to the Trustee in accordance
with the terms of this Indenture that it shall in good faith reasonably believe to be genuine and to
have been adopted or signed by the proper board or Person or to have been prepared and
furnished pursuant to any of the provisions of this Indenture, or upon the written opinion of any
counsel, architect, engineer, insurance consultant, management consultant or accountant believed
by the Trustee in its sole discretion to be qualified in relation to the subject matter, and the
Trustee shall be under no duty to make any investigation or inquiry into any statements
contained or matters referred to in any such instrument. The Trustee may consult with counsel,
who may or may not be Bond Counsel, counsel to the Town, and the opinion of each counsel
shall be full and complete authorization and protection in respect of any action taken or suffered
by it in good faith and in accordance therewith.
Whenever the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering any action under this Indenture, such matter may be
deemed to be conclusively proved and established by a Town Certificate, unless other evidence
in respect thereof be hereby specifically prescribed. Such Town Certificate shall be full warrant
for any action taken o r suffered in good faith under the provisions hereof, but in its discretion the
Trustee may in lieu thereof accept other evidence of such fact or matter or may require such
further or additional evidence as it may deem reasonable. Except as otherwise expressly provided
herein, any request, order, notice or other direction required or permitted to be furnished
pursuant to any provision hereof by the Town to the Trustee shall be sufficiently executed if
executed in the name of the Town by the Town Representative.
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The Trustee shall not be under any obligation to see to the recording or filing of this
Indenture, or any other document or otherwise to the giving to any Person of notice of the
provisions hereof except as expressly required in Section 9.13 herein.
The Trustee shall not be deemed to have notice of any Event of Default, except an Event
of Default under Section 11.1(i) unless the officer of the Trustee having responsibility for the
administration of this Indenture shall have received notice thereof from the Town or the Owners
of at least 25% of the aggregate principal amount of the Outstanding Bonds.
The Trustee may, at any time, request that the Town or the Town’s financial advisor
confirm to the Trustee the current amount of the Reserve Fund Requirement or the interest rate
component of the Annual Installments.
Section 9.6 Compensation.
Unless otherwise provided by contract with the Trustee, the Trustee shall transfer from
the Administrative Fund, from time to time, reasonable compensation for all services rendered
by it hereunder, including its services as Registrar and Paying Agent, together with all its
reasonable expenses, charges and other disbursements and those of its counsel, agents and
employees, incurred in and about the administration and execution of the trusts hereby created
and the exercise of its powers and the performance of its duties hereunder, subject to any limit on
the amount of such compensation or recovery of expenses or other charges as shall be prescribed
by specific agreement, and the Trustee shall have a lien therefor on any and all funds at any time
held by it hereunder prior to any Bonds Outstanding. None of the provisions contained in this
Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial
liability in the performance of any of its duties or in the exercise of any of its rights or powers, if
in the judgment of the Trustee there are reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it. If the Town shall fail to make any payment
required by this Section, the Trustee may make such payment from any moneys in its possession
under the provisions of this Indenture and shall be entitled to a preference therefor over any
Bonds Outstanding hereunder.
Section 9.7 Permitted Acts.
The Trustee and its directors, officers, employees or agents may become the owner of or
may in good faith buy, sell, own, hold and deal in Bonds and may join in any action that any
Owner of Bonds may be entitled to take as fully and with the same rights as if it were not the
Trustee. The Trustee may act as depository, and permit any of its officers or directors to act as a
member of, or in any other capacity with respect to, the Town or any committee formed to
protect the rights of holders of Bonds or to effect or aid in any reorganization growing out of the
enforcement of the Bonds or this Indenture, whether or not such committee shall represent the
holders of a majority of the Bonds.
Section 9.8 Resignation of Trustee.
The Trustee may at any time resign and be discharged of its duties and obligations
hereunder by giving not fewer than 30 days’ notice, specifying the date when such resignation
shall take effect, to the Town and each Owner of any Outstanding Bond. Such resignation shall
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take effect upon the appointment of a successor as provided in Section 9.10 and the acceptance
of such appointment by such successor.
Section 9.9 Removal of Trustee.
The Trustee may be removed at any time by (i) the Owners of at least a majority of the
aggregate principal amount of the Outstanding Bonds by an instrument or concurrent instruments
in writing signed and acknowledged by such Owners or by their attorneys-in-fact, duly
authorized and delivered to the Town, or (ii) so long as the Town is not in default under this
Indentur e, the Town. Copies of each such instrument shall be delivered by the Town to the
Trustee and any successor thereof. The Trustee may also be removed at any time for any breach
of trust or for acting or proceeding in violation of, or for failing to act or proceed in accordance
with, any provision of this Indenture with respect to the duties and obligations of the Trustee by
any court of competent jurisdiction upon the application of the Town or the Owners of not less
than 10% of the aggregate principal amount of the Outstanding Bonds.
Section 9.10 Successor Trustee.
If the Trustee shall resign, be removed, be dissolved or become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or if a receiver, liquidator or conservator of the
Trustee or of its property shall be appointed, or if any public officer shall take charge or control
of the Trustee or of its property or affairs, the position of the Trustee hereunder shall thereupon
become vacant.
If the position of Trustee shall become vacant for any of the foregoing reasons or for any
other reason, a successor Trustee may be appointed within one year after any such vacancy shall
have occurred by the Owners of at least twenty-five percent (25%) of the aggregate principal
amount of the Outstanding Bonds by an inst rument or concurrent instruments in writing signed
and acknowledged by such Owners or their attorneys-in-fact, duly authorized and delivered to
such successor Trustee, with notification thereof being given to the predecessor Trustee and the
Town.
Until suc h successor Trustee shall have been appointed by the Owners of the Bonds, the
Town shall forthwith appoint a Trustee to act hereunder. Copies of any instrument of the Town
providing for any such appointment shall be delivered by the Town to the Trustee so appointed.
The Town shall mail notice of any such appointment to each Owner of any Outstanding Bonds
within 30 days after such appointment. Any appointment of a successor Trustee made by the
Town immediately and without further act shall be superseded and revoked by an appointment
subsequently made by the Owners of Bonds.
If in a proper case no appointment of a successor Trustee shall be made within 45 days
after the giving by any Trustee of any notice of resignation in accordance with Section 9.8 herein
or after the occurrence of any other event requiring or authorizing such appointment, the Trustee
or any Owner of Bonds may apply to any court of competent jurisdiction for the appointment of
such a successor, and the court may thereupon, after such notice, if any, as the court may deem
proper, appoint such successor.
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Any successor Trustee appointed under the provisions of this Section shall be a
commercial bank or trust company or national banking association (i) having a capital and
surplus and undivided profits aggregating at least’ $50,000,000, if there be such a commercial
bank or trust company or national banking association willing and able to accept the appointment
on reasonable and customary terms, and (ii) authorized by law to perform all the duties of the
Trustee required by this Indenture.
Each successor Trustee shall mail, in accordance with the provisions of the Bonds, notice
of its appointment to the Trustee, any rating agency which, at the time of such appointment, is
providing a rating on the Bonds and each of the Owners of the Bonds.
Section 9.11 Transfer of Rights and Property to Successor Trustee.
Any successor Trustee appointed under the provisions of Section 9.10 shall execute,
acknowledge and deliver to its predecessor and the Town an instrument in wr iting accepting such
appointment, and thereupon such successor, without any further act, deed or conveyance, shall
become fully vested with all moneys, estates, properties, rights, immunities, powers, duties,
obligations and trusts of its predecessor hereunder, with like effect as if originally appointed as
Trustee. However, the Trustee then ceasing to act shall nevertheless, on request of the Town or
of such successor, execute, acknowledge and deliver such instruments of conveyance and further
assurance and do such other things as may reasonably be required for more fully and certainly
vesting and confirming in such successor all the rights, immunities, powers and trusts of such
Trustee and all the tight, title and interest of such Trustee in and to the Trust Estate, and shall pay
over, assign and deliver to such successor any moneys or other properties subject to the trusts
and conditions herein set forth. Should any deed, conveyance or instrument in writing from the
Town be required by such successor for more fully and certainly vesting in and confirming to it
any such moneys, estates, properties, rights, powers, duties or obligations, any and all such
deeds, conveyances and instruments in writing, on request and so far as may be authorized by
law, shall be executed, acknowledged and delivered by the Town.
Section 9.12 Merger, Conversion or Consolidation of Trustee.
Any corporation or association into which the Trustee may be merged or with which it
may be consolidated or any corporation or association resulting from any merger, conversion or
consolidation to which it shall be a party or any corporation or association to which the Trustee
may sell or transfer all or substantially all of its corporate trust business shall be the successor to
such Trustee hereunder, without any further act, deed or conveyance, provided that such
corporation or association shall be a commercial bank or trust company or national banking
association qualified to be a successor to such Trustee under the provisions of Section 9. 10, or a
trust company that is a wholly-owned subsidiary of any of the foregoing.
Section 9.13 Trustee To File Continuation Statements.
If necessary, the Trustee shall file or cause to be filed, such continuation statements as
may be required by the Texas Uniform Commercial Code, as from time to time in effect (the
“UCC”), in order to continue perfection of the security interest of the Trustee in such items of
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tangible or intangible personal property and any fixtures as may have been granted to the Trustee
pursuant to this Indenture in the time, place and manner required by the UCC.
Section 9.14 Construction of Indenture.
The Trustee may construe any of the provisions of this Indenture insofar as the same may
appear to be ambiguous or inconsistent with any other provision hereof, and any construction of
any such provisions hereof by the Trustee in good faith shall be binding upon the Owners of the
Bonds.
ARTICLE X
MODIFICATION OR AMENDMENT OF THIS INDENTURE
Section 10.1 Amendments Permitted.
This Indenture and the rights and obligations of the Town and of the Owners of the
Bonds may be modified or amended at any time by a Supplemental Indenture, except as provided
below, pursuant to the affirmative vote at a meeting of Owners of the Bonds, or with the written
consent without a meeting, of the Owners of the Bonds of at least sixty-six and two-thirds
percent (66-2/3%) of the aggregate principal amount of the Bonds then Outstanding. No such
modification or amendment shall (i) extend the maturity of any Bond or reduce the interest rate
thereon, or otherwise alter or impair the obligation of the Town to pay the principal of, and the
interest and any premium on, any Bond, without the express consent of the Owner of such Bond,
or (ii) permit the creation by the Town of any pledge or lien upon the Pledged Revenues superior
to or on a parity with the pledge and lien created for the benefit of the Bonds (except as
otherwise permitted by Applicable Laws or this Indenture), or reduce the percentage of Bonds
required for the amendment hereof. Any such amendment may not modify any of the rights or
obligations of the Trustee without its written consent.
This Indenture and the rights and obligations of the Town and of the Owners may also be
modified or amended at any time by a Supplemental Indenture, without the consent of any
Owners, only to the extent permitted by law and only for any one or more of the following
purposes:
(i) to add to the covenants and agreements of the Town in this
Indenture contained, other covenants and agreements thereafter to be observed, or to limit
or surrender any right or power herein reserved to or conferred upon the Town;
(ii) to make modifications not adversely affecting any Outstanding
Bonds in any material respect;
(iii) to make such provisions for the purpose of curing any ambiguity,
or of curing, correcting or supplementing any defective provision contained in this
Indenture, or in regard to questions arising under this Indenture, as the Town and the
Trustee may deem necessary or desirable and not inconsistent with this Indenture, and
that shall not adversely affect the rights of the Owners of the Bonds; and
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(iv) to make such additions, deletions or modifications as may be
necessary or desirable to assure exemption from federal income taxation of interest on the
Bonds.
The Trustee shall have the right to obtain and rely upon an opinion of outside counsel to the
effect that any modification or amendment to this Indenture satisfies the provisions of this
Section 10.1.
Section 10.2 Owners’ Meetings.
The Town may at any time call a meeting of the Owners of the Bonds. In such event the
Town is authorized to fix the time and place of said meeting and to provide for the giving of
notice thereof, and to fix and adopt rules and regulations for the conduct of said meeting.
Section 10.3 Procedure for Amendment with Written Consent of Owners.
The Town and the Trustee may at any time adopt a Supplemental Indenture amending the
provisions of the Bonds or of this Indenture, to the extent that such amendment is permitted by
Section 10.1 herein, to take effect when and as provided in this Section. A copy of such
Supplement al Indenture, together with a request to Owners for their consent thereto, shall be
mailed by first class mail, by the Trustee to each Owner of Bonds from whom consent is required
under this Indenture, but failure to mail copies of such Supplemental Indenture and request shall
not affect the validity of the Supplemental Indenture when assented to as in this
Section provided.
Such Supplemental Indenture shall not become effective unless there shall be filed with
the Trustee the written consents of the Owners as required by this Indenture and a notice shall
have been mailed as hereinafter in this Section provided. Each such consent shall be effective
only if accompanied by proof of ownership of the Bonds for which such consent is given, which
proof shall be such as is permitted by Section 11.6 herein. Any such consent shall be binding
upon the Owner of the Bonds giving such consent and on any subsequent Owner (whether or not
such subsequent Owner has notice thereof), unless such consent is revoked in writing by the
Owner giving such consent or a subsequent Owner by filing such revocation with the Trustee
prior to the date when the notice hereinafter in this Section provided for has been mailed.
After the Owners of the required percentage of Bonds shall have filed their consents to
the Supplemental Indenture, the Town shall mail a notice to the Owners in the manner
hereinbefore provided in this Section for the mailing of the Supplemental Indenture, stating in
substance that the Supplemental Indenture has been consented to by the Owners of the required
percentage of Bonds and will be effective as provided in this Section (but failure to mail copies
of said notice shall not affect the validity of the Supplemental Indenture or consents thereto).
Proof of the mailing of such notice shall be filed with the Trustee. A record, consisting of the
papers required by this Section 10.3 to be filed with the Trustee, shall be proof of the matters
therein stated until the contrary is proved. The Supplemental Indenture shall beco me effective
upon the filing with the Trustee of the proof of mailing of such notice, and the Supplemental
Indenture shall be deemed conclusively binding (except as otherwise hereinabove specifically
provided in this Article) upon the Town and the Owners of all Bonds at the expiration of sixty
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(60) days after such filing, except in the event of a final decree of a court of competent
jurisdiction setting aside such consent in a legal action or equitable proceeding for such purpose
commenced within such sixty-day period.
Section 10.4 Effect of Supplemental Indenture.
From and after the time any Supplemental Indenture becomes effective pursuant to this
Article X, this Indenture shall be deemed to be modified and amended in accordance therewith,
the respective rights, duties and obligations under this Indenture of the Town and all Owners of
Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in
all respects to such modifications and amendments, and all the terms and conditions of any such
Supplemental Indenture shall be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section 10.5 Endorsement or Replacement of Bonds Issued After Amendments.
The Town may determine that Bonds issued and delivered after the effective date of any
action taken as provided in this Article X shall bear a notation, by endorsement or otherwise, in
form approved by the Town, as to such action. In that case, upon demand of the Owner of any
Bond Outstanding at such effective date and presentation of his Bond for that purpose at the
designated office of the Trustee or at such other office as the Town may select and designate for
that purpose, a suitable notation shall be made on such Bond. The Town may determine that new
Bonds, so modified as in the opinion of the Town is necessary to conform to such Owners’
action, shall be prepared, executed and delivered. In that case, upon demand of the Owner of any
Bonds then Outstanding, such new Bonds shall be exchanged at the designated office of the
Trustee without cost to any Owner, for Bonds then Outstanding, upon surrender of such Bonds.
Section 10.6 Amendatory Endorsement of Bonds.
The provisions of this Article X shall not prevent any Owner from accepting any
amendment as to the particular Bonds held by him, provided that due notation thereof is made on
such Bonds.
Section 10.7 Waiver of Default.
With the written consent of at least sixty-six and two -thirds percent (66-2/3%) in
aggregate principal amount of the Bonds then Outstanding, the Owners may waive compliance
by the Town with certain past defaults under the Indenture and their consequences. Any such
consent shall be conclusive and binding upon the Owners and upon all future Owners.
ARTICLE XI
DEFAULT AND REMEDIES
Section 11.1 Events of Default.
Each of the following occurrences or events shall be and is hereby declared to be an
“Event of Default,” to wit:
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(i) The failure of the Town to deposit the Pledged Revenues to the
Pledged Revenue Fund;
(ii) The failure of the Town to enforce the collection of the
Assessments including the prosecution of for eclosure proceedings; and
(iii) Default in the performance or observance of any covenant,
agreement or obligation of the Town under this Indenture and the continuation thereof for
a period of 60 days after written notice specifying such default by the Owners of at least
25% of the aggregate principal amount of the Bonds at the time Outstanding to the Town
requesting that the failure be remedied.
Section 11.2 Immediate Remedies for Default.
(a) Subject to Article VIII, upon the happening and continuance of any of the
Events of Default described in Section 11.1, the Owners of at least 25% of the aggregate
principal amount of the Bonds then Outstanding, may proceed against the Town for the purpose
of protecting and enforcing the rights of the Owners under this Indenture, by action seeking
mandamus or by other suit, action or special proceeding in equity or at law, in any court of
competent jurisdiction, for any relief to the extent permitted by Applicable Laws, including, but
not limited to, the specific performance of any covenant or agreement contained herein, or
injunction; provided, however, that no action for money damages against the Town may be
sought or shall be permitted.
(b) THE PRINCIPAL OF THE BONDS SHALL NOT BE SUBJECT TO
ACCELERATION UNDER ANY CIRCUMSTANCES.
(c) If the assets of the Trust Estate are sufficient to pay all amounts due with
respect to Outstanding Bonds, in the selection of Trust Estate assets to be used in the payment of
Bonds due under this Article, the Town shall determine, in its absolute discretion, and shall
instruct the Trustee by Town Order, which Trust Estate assets shall be applied to such payment
and shall not be liable to any Owner or other Person by reason of such selection and application.
In the event that the Town shall fail to deliver to the Trustee such Town Order, the Trustee shall
select and liquidate or sell Trust Estate assets as provided in the following paragraph, and shall
not be liable to any Owner, or other Person, or the Town by reason of such selection, liquidation
or sale.
(d) Whenever moneys are to be applied pursuant to this Article XI,
irrespective of and whether other remedies authorized under this Indenture shall have been
pursued in whole or in part, the Trustee may cause any or all of the assets of the Trust Estate,
including Investment Securities, to be sold. The Trustee may so sell the assets of the Trust Estate
and all right, title, interest, claim and demand thereto and the right of redemption thereof, in one
or more parts, at any such place or places, and at such time or times and upon such notice and
terms as the Trustee may deem appropriate and as may be required by law and apply the
proceeds thereof in accordance with the provisions of this Section. Upon such sale, the Trustee
may make and deliver to the purchaser or purchasers a good and sufficient assignment or
conveyance for the same, which sale shall be a perpetual bar both at law and in equity against the
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Town, and all other Persons claiming such properties. No purchaser at any sale shall be bound to
see to the application of the purchase money proceeds thereof or to inquire as to the
authorization, necessity, expediency or regularity of any such sale. Nevertheless, if so requested
by the Trustee, the Town shall ratify and confirm any sale or sales by executing and delivering to
the Trustee or to such purchaser or purchasers all such instruments as may be necessary or, in the
judgment of the Trustee, proper for the purpose which may be designated in such request.
Section 11.3 Restriction on Owner’s Action.
(a) No Owner shall have any right to inst itute any action, suit or proceeding at
law or in equity for the enforcement of this Indenture or for the execution of any trust thereof or
any other remedy hereunder, unless (i) a default has occurred and is continuing of which the
Trustee has been notified in writing as provided in Section 11.1, or of which by such Section it is
deemed to have notice, (ii) such default has become an Event of Default and the Owners of 25%
of the aggregate principal amount of the Bonds then Outstanding have made written request to
the Trustee and offered it reasonable opportunity either to proceed to exercise the powers
hereinbefore granted or to institute such action, suit or proceeding in its own name, (iii) the
Owners have furnished to the Trustee indemnity as provided in Section 9.2 herein, (iv) the
Trustee has for 60 days after such notice failed or refused to exercise the powers hereinbefore
granted, or to institute such action, suit or proceeding in its own name, (v) no direction
inconsistent with such written request has been given to the Trustee during such 60-day period
by the Owners of a majority of the aggregate principal amount of the Bonds then Outstanding,
and (vi) notice of such action, suit or proceeding is given to the Trustee; however, no one or
more Owners of the Bonds shall have any right in any manner whatsoever to affect, disturb or
prejudice this Indenture by its, his or their action or to enforce any right hereunder except in the
manner provided herein, and that all proceedings at law or in equity shall be instituted and
maintained in the manner provided herein and for the equal benefit of the Owners of all Bonds
then Outstanding. The notification, request and furnishing of indemnity set forth above shall, at
the option of the Trustee, be conditions precedent to the execution of the powers and trusts of
this indenture and to any action or cause of action for the enforcement of this Indenture or for
any other remedy hereunder.
(b) Subject to Article VIII, nothing in this Indenture shall affect or impair the
right of any Owner to enforce, by action at law, payment of any Bond at and after the maturity
thereof, or on the date fixed for redemption or the obligation of the Town to pay each Bond
issued hereunder to the respective Owners thereof at the time, place, from the source and in the
manner expressed herein and in the Bonds.
(c) In case the Trustee or any Owners shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely to the Trustee or any Owners, then and in
every such case the Town, the Trustee and the Owners shall be restored to their former positions
and rights hereunder, and all rights, remedies and powers of the Trustee shall continue as if no
such proceedings had been taken.
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Section 11.4 Application of Revenues and Other Moneys After Default.
(a) All moneys, securities, funds and Pledged Revenues and the income
therefrom received by the Trustee pursuant to any right given or action taken under the
provisions of this Article shall, after payment of the cost and expenses of the proceedings
resulting in the collection of such amounts, the expenses (including its, counsel), liabilities and
advances incurred or made by the Trustee and the fees of the Trustee in carrying out this
Indenture, during the continuance of an Event of Default, the Trustee, on behalf of the Town.
notwithstanding Section 11.2 hereof, be applied by the Trustee to the payment of interest and
principal or Redemption Price then due on Bonds, as follows and in the following order:
FIRST: To the payment to the Owners entitled thereto all
installments of interest then due in the direct order of maturity of
such installments, and, if the amount available shall not be
sufficient to pay in full any installment, then to the payment
thereof ratably, according to the amounts due on such installment,
to the Owners entitled thereto, without any discrimination or
preference; and
SECOND: To the payment to the Owners entitled thereto of the
unpaid principal of Outstanding Bonds, or Redemption Price of
any Bonds which shall have become due, whether at maturity or by
call for redemption, in the direct order of their due dates and, if the
amounts available shall not be sufficient to pay in full all the
Bonds due on any date, then to the payment thereof ratably,
according to the amounts of principal due and to the Owners
entitled thereto, without any discrimination or preference;
Within ten (10) days of receipt of such good and available funds, the Trustee may fix a
record and payment date for any payment to be made to Owners pursuant to this Section 11.4.
(b) In the event funds are not adequate to cure any of the Events of Default
described in Section 11.1, the available funds shall be allocated to pay principal and interest due
on Outstanding Bonds on a pro rata basis.
(c) The restoration of the Town to its prior position after any and all defaults
have been cured, as provided in Section 11.3, shall not extend to or affect any subsequent default
under this Indenture or impair any right consequent thereon.
Section 11.5 Effect of Waiver.
(a) No delay or omission of the Trustee, or any Owner to exercise any right or
power accruing upon any default shall impair any such right or power or shall be construed to be
a waiver of any such default or an acquiescence therein; and every power and remedy given by
this Indenture to the Trustee or the Owners, respectively, may be exercised from time to time and
as often as may be deemed expedient.
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Section 11.6 Evidence of Ownership of Bonds.
(a) Any request, consent, revo cation of consent or other instrument which this
Indenture may require or permit to be signed and executed by the Owners of Bonds may be in
one or more instruments of similar tenor, and shall be signed or executed by such Owners in
person or by their attorneys duly appointed in writing. Proof of the execution of any such
instrument, or of any instrument appointing any such attorney, or the holding by any Person of
the Bonds shall be sufficient for any purpose of this Indenture (except as otherwise herein
expressly provided) if made in the following manner:
(i) The fact and date of the execution by any Owner of Bonds or his
attorney of such instruments may be provided by a guarantee of the signature thereon by
a bank or trust company or by the certificate of any notary public or other officer
authorized to take acknowledgments of deeds, that the Person signing such request or
other instrument acknowledged to him the execution thereof, or by an affidavit of a
witness of such execution, duly sworn to before such not ary public or other officer.
Where such execution is by an officer of a corporation or association or a member of a
partnership, on behalf of such corporation, association or partnership, such signature
guarantee, certificate or affidavit shall also constitute sufficient proof of his authority.
(ii) The ownership of Bonds and the amount, numbers and other
identification and date of holding the same shall be proved by the Register.
(b) Except as otherwise provided in this Indenture with respect to revocation
of a consent, any request or consent by an Owner of Bonds shall bind all future Owners of the
same Bond in respect of anything done or suffered to be done by the Town or the Trustee in
accordance therewith.
Section 11.7 No Acceleration.
In the event of the occurrence of an Event of Default under Section 11.1 hereof, the right
of acceleration of any Stated Maturity is not granted as a remedy hereunder and the right of
acceleration under this Indenture is expressly denied.
Section 11.8 Mailing of Notice.
Any provision in this Article for the mailing of a notice or other document to Owners
shall be fully complied with if it is mailed, first class postage prepaid, only to each Owner at the
address appearing upon the Register.
Section 11.9 Exclusion of Bonds.
Bonds owned or held by or for the account of the Town will not be deemed Outstanding
for the purpose of consent or other action or any calculation of Outstanding Bonds provided for
in this Indenture, and the Town shall not be entitled with respect to such Bonds to give any
consent or take any other action provided for in this Indenture.
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ARTICLE XII
GENERAL COVENANTS AND REPRESENTATIONS
Section 12.1 Representations as to Pledged Revenues.
(a) The Town represents and warrants that it is authorized by Applicable
Laws to authorize and issue the Bonds, to execute and deliver this Indenture and to pledge the
Pledged Revenues in the manner and to the extent provided in this Indenture, and that the
Pledged Revenues are and will be and remain free and clear of any pledge, lien, charge or
encumbrance thereon or with respect thereto prior to, or of equal rank with, the pledge and lien
created in or authorized by this Indenture except as expressly provided herein.
(b) The Town shall at all times, to the extent permitted by Applicable Laws,
defend, preserve and protect the pledge of the Pledged Revenues and all the rights of the Owners
and the Trustee, under this Indenture against all claims and demands of all Persons whomsoever.
(c) Subject to available funds, the Town will take all steps reasonably
necessary and appropriate, to collect all delinquencies in the collection of the Assessments and
any other amounts pledged to the payment of the Bonds to the fullest extent permitted by the Act
and other Applicable Laws.
(d) To the extent permitted by law and to the extent possible, notice of the
Annual Installments shall be sent by, or on behalf of the Town, to the affected property owners
on the same statement or such other mechanism that is used by the Town, so that such Annual
Installment s are collected simultaneously with ad valorem taxes and shall be subject to the same
penalties, procedures, and foreclosure sale in case of delinquencies as are provided for ad
valorem taxes of the Town. Notwithstanding the foregoing, if the Town is unable in every year
to send notice of the Annual Installment on the same stat ement as ad valorem taxes, the Town
shall send or shall cause to be sent, a separate notice of the Annual Installment in a timely
fashion such that the Annual Installment can be collected in the same time frame as ad valorem
taxes.
Section 12.2 Accounts, Periodic Reports and Certificates.
The Trustee shall keep or cause to be kept proper books of record and account (separate
from all other records and accounts) in which complete and correct entries shall be made of its
transactions relating to the Funds and Accounts established by this Indenture and which shall at
all times be subject to inspection by the Town, and the Owner or Owners of not less than 10% in
aggregate principal amount of the Bonds then Outstanding or their representatives duly
authorized in writing.
Section 12.3 General.
The Town 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 Town under the provisions of this
Indenture,
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ARTICLE XIII
SPECIAL COVENANTS
Section 13.1 Further Assurances Due Performance.
(a) At any a nd all times the Town will duly execute, acknowledge and deliver,
or will cause to be done, executed and delivered, all and every such further acts, conveyances,
transfers and assurances in a manner as the Trustee shall reasonably require for better conveying,
transferring, pledging and confirming unto the Trustee, all and singular, the revenues, Funds and
properties constituting the Pledged Revenues, and the Trust Estate hereby transferred and
pledged, or intended so to be transferred and pledged.
(b) The Town will duly and punctually keep, observe and perform each and
every term, covenant and condition on its part to be kept, observed and performed, contained in
this Indenture.
Section 13.2 Other Obligations or Other Liens.
(a) The Town reserves the right to issue obligations under other indentures,
assessment ordinances or similar agreements or other obligations which do not constitute or
create a lien on the Trust Estate and are not payable from Pledged Revenues.
(b) Other than Refunding Bonds issued to refund all or a portion of the Bonds,
t he Town will not create or voluntarily permit to be created any debt, lien or charge on the Trust
Estate and will not do or omit to do or suffer to be or omitted to be done any matter or things
whatsoever whereby the lien of this Indenture o r the priority hereof might or could be lost or
impaired; and further covenants that it will pay or cause to be paid or will make adequate
provisions for the satisfaction and discharge of all lawful claims and demands which if unpaid
might by law be given precedence over or any equality with this Indenture as a lien or charge
upon the Pledged Revenues or Pledged Funds; provided, however, that nothing in this
Section shall require the Town to apply, discharge or make provision for any such lien, charge,
claim or demand so long as the validity thereof shall be contested by it in good faith, unless
thereby, in the opinion of Bond Counsel or counsel to the Trustee, the same would endanger the
security for the Bonds.
(c) Notwithstanding any contrary provision of this Indenture, the Town shall
not issue additional bonds, notes or other obligations under this Indenture, secured by any pledge
of or other lien or charge on the Pledged Revenues or other property pledged under this
Indenture, other than Refunding Bonds. The Town reserves the right to issue Refunding Bonds,
the proceeds of which would be utilized to refund all or any portion of the Outstanding Bonds or
Outstanding Refunding Bonds and to pay all costs incident to the Refunding Bonds, as
authorized by the laws of the State.
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Section 13.3 Books of Record.
(a) The Town shall cause to be kept full and proper books of record and
accounts, in which full, true and proper entries will be made of all dealing, business and affairs
of the Town, which relate to the Pledged Revenues, the Pledged Funds and the Bonds.
(b) The Trustee shall have no responsibility with respect to the financial and
other information received by it pursuant to this Section 13.3 except to receive and retain same,
subject to the Trustee’s document retention policies, and to distribute the same in accordance
with the provisions of this Indenture.
ARTICLE XIV
PAYMENT AND CANCELLATION OF THE BONDS
AND SATISFACTION OF THE INDENTURE
Section 14.1 Trust Irrevocable.
The trust created by the terms and provisions of this Indenture is irrevocable until the
Bonds secured hereby are fully paid or provision is made for their payment as provided in this
Article.
Section 14.2 Satisfaction of Indenture.
If the Town shall pay or cause to be paid, or there shall otherwise be paid to the Owners,
principal of and interest on all of the Bonds, at the times and in the manner stipulated in this
Indenture, and all amounts due and owing with respect to the Bonds have been paid or provided
for, then the pledge of the Trust Estate and all covenants, agreements and other obligations of the
Town to the Owners of such Bonds, shall thereupon cease, terminate and become void and be
discharged and satisfied. In such event, the Trustee shall execute and deliver to the Town copies
of all such documents as it may have evidencing that principal of and interest on all of the Bonds
have been paid so that the Town may determine if the Indenture is satisfied; if so, the Trustee
shall pay over or deliver all moneys held by it in the in Funds held hereunder to the Person
entitled to receive such amount s, or, if no Person is entitled to receive such amounts, then to the
Town.
Section 14.3 Bonds Deemed Paid.
All Outstanding Bonds shall prior to the Stated Maturity or redemption date thereof be
deemed to have been paid and to no longer be deemed Outstanding if (i) in case any such Bonds
are to be redeemed on any date prior to their Stated Maturity, the Trustee shall have given notice
of redemption on said date as provided herein, (ii) there shall have been deposited with the
Trustee either moneys in an amount which shall be sufficient, or Defeasance Securities the
principal of and the interest on which when due will provide moneys which, together with any
moneys deposited with the Trustee at the same time, shall be sufficient to pay when due the
principal of and interest on the Bonds to become due on such Bonds on and prior to the
redemption date or maturity date thereof, as the case may be, (iii) the Trustee shall have received
a report by an independent certified public accountant selected by the Town verifying the
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sufficiency of the moneys or Defeasance Securities deposited with the Trustee to pay when due
the principal of and interest on the Bonds to become due on such Bonds on and prior to the
redemption date or maturity date thereof, as the case may be, and (iv) if the Bonds are then rated,
the Trustee shall have received written confirmation from each rating agency that such deposit
will not result in the reduction or withdrawal of the rating on the Bonds. Neither Defeasance
Securities nor moneys deposited with the Trustee pursuant to this Section nor principal or
interest payments on any such Defeasance Securities shall be withdrawn or used for any purpose
other than, and shall be held in trust for, the payment of the principal of and interest on the
Bonds. Any cash received from such principal of and interest on such Defeasance Securities
deposited with the Trustee, if not then needed for such purpose, shall, be reinvested in
Defeasance Securities as directed by the Town maturing at times and in amounts sufficient to
pay when due the principal of and interest on the Bonds on and prior to such redemption date or
maturity date thereof, as the case may be. Any payment for Defeasance Securities purchased for
the purpose of reinvesting cash as aforesaid shall be made only against delivery of such
Defeasance Securities.
ARTICLE XV
REDEMPTION OF REFUNDED BONDS; APPROVAL OF ESCROW AGREEMENT;
PURCHASE OF ESCROWED SECURITIES
Section 15.1 Redemption of Refunded Bonds.
(a) The Refunded Bonds are hereby called for redemption on the date, in the
principal amounts and at a redemption price equal to the principal amount thereof plus interest
accrued thereon to the redemption date as set forth in the Pricing Certificate.
(b) The Town Secretary is hereby authorized and directed to cause a copy of
this Indenture to be delivered to the paying agent/registrar for the Refunded Bonds, the delivery
of which shall constitute notice of redemption and notice of defeasance to such paying
agent/registrar.
Section 15.2 Approval of Escrow Agreement.
The discharge and defeasance of the Refunded Bonds shall be effectuated pursuant to the
terms and provisions of an Escrow Agreement (the “Escrow Agreement”), to be entered into by
and between the Town and the Escrow Agent, which Escrow Agreement shall contain terms and
provisions to be approved by the Authorized Officer including terms and provisions for the
purposes of (i) carrying out the program designed for the Town, (ii) minimizing the Town’s costs
of refunding, (iii) complying with all applicable laws and regulations relating to the refunding of
the Refunded Bonds, (iv) carrying out the other intents and purposes of this Indenture, and (v)
complying with the terms set forth in the Pricing Certificate. The execution and delivery by the
Town Manager of the Escrow Agreement is hereby authorized and approved. The signature of
the Mayor shall be attested by the Town Secretary.
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Section 15.3 Purchase of Securities.
The Authorized Officer is hereby authorized to subscribe for, agree to purchase, and
purchase securities permitted by applicable law, in such amounts and maturities and bearing
interest at such rates as may be provided for in the Escrow Agreement, and to execute any and all
subscriptions, purchase agreements, commitments, letters of authorization and other documents
necessary to effectuate the foregoing, and any actions heretofore taken for such purpose are
hereby ratified and approved.
Section 15.4 Notice of Deposit and Redemption.
The paying agent/registrar for the Refunded Bonds is hereby authorized and directed to
give notice of deposit and redemption with respect to the Refunded Bonds in the manner
specified in the ordinances authorizing the issuance of such Refunded Bonds.
ARTICLE XVI
MISCELLANEOUS
Section 16.1 Additional Bonds.
The Town shall not issue additional bonds secured by the Pledged Revenues on parity
with or superior to the Bonds, other than refunding bonds, the proceeds of which would be used
to refund all or a portion of the Outstanding Bonds and to pay all costs incident to the issuance of
such refunding bonds.
Section 16.2 Benefits of Indenture Limited to Parties.
Nothing in this Indenture, expressed or implied, is intended to give to any Person other
than the Town, the Trustee and the Owners, any right, remedy, claim under or by reason of this
Indenture. Any covenants, stipulations, promises or agreements in this Indenture contained by
and on behalf of the Town shall be for the sole and exclusive benefit of the Owners and the
Trustee.
Section 16.3 Successor is Deemed Included in All References to Predecessor.
Whenever in this Indenture or any Supplemental Indenture either the Town or the Trustee
is named or referred to, such reference shall be deemed to include the successors or assigns
thereof, and all the covenants and agreements in this Indenture contained by or on behalf of the
Town or the Trustee shall bind and inure to the benefit of the respective successors and assigns
thereof whether so expressed or not.
Section 16.4 Execution of Documents and Proof of Ownership by Owners.
Any request, declaration or other instrument which this Indenture may require or permit
to be executed by Owners may be in one or more instruments of similar tenor, and shall be
executed by Owners in person or by their attorneys duly appointed in writing.
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Except as otherwise herein expressly provided, the fact and date of the execution by any
Owner or his attorney of such request, declaration or other instrument, or of such writing
appointing such attorney, may be proved by the certificate of any notary public or other officer
authorized to take acknowledgments of deeds to be recorded in the state in which he purports to
act, that the Person signing such request, declaration or other instrument or writing
acknowledged to him the execution thereof, or by an affidavit of a witness of such execution,
duly sworn to before such notary public or other officer.
Except as otherwise herein expressly provided, the ownership of registered Bonds and the
amount, maturity, number and date of holding the same shall be proved by the Register.
Any request, declaration or other instrument or writing of the Owner of any Bond shall
bind all future Owners of such Bond in respect of anything done or suffered to be done by the
Town or the Trustee in good faith and in accordance therewith.
Section 16.5 Waiver of Personal Liability.
No member, officer, agent or employee of the Town shall be individually or personally
liable for the payment of the principal of, or interest or any premium on, the Bonds; but nothing
herein contained shall relieve any such member, officer, agent or employee from the
performance of any official duty provided by law.
Section 16.6 Notices to and Demands on Town and Trustee.
(a) Except as otherwise expressly provided in this Indenture, all notices or
other instruments required or permitted under this Indenture shall be in writing and shall be
faxed, delivered by hand, overnight courier or mailed by first class mail, postage prepaid, and
addressed as follows:
If to the Town: Town of Trophy Club, Texas
100 Municipal Drive
Trophy Club, Texas 76262
Attn: Stephen Seidel, Town Manager
Telephone: 682.831.4606
Fax: 817.491.9312
Email: sseidel@trophyclub.org
If to the Trustee or the Registrar:
The Bank of New York Mellon Trust
Company, N.A.
2001 Bryan Street, 11th Floor
Dallas, Texas 75201
Attn: Brian Jensen
Telephone: 214.468.6406
Fax: 214.468.6322
Email: brian.jensen@bnymellon.com
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Any such notice, demand or request may also be transmitted to the appropriate party by
electronic mail and shall be deemed to be properly given or made at the time of such
transmission upon electronic confirmation of such receipt.
Any of such addresses may be changed at any time upon written notice of such change
given to the other party by the party effecting the change. Notices and consents given by mail in
accordance with this Section shall be deemed to have been given five Business Days after the
date of dispatch; notices and consents given by any other means shall be deemed to have been
given when received.
(b) The successor Trustee shall mail to each Owner of a Bond notice of (i) any
substitution of the Trustee; or (ii) the redemption or defeasance of all Bonds Outstanding.
Section 16.7 Partial Invalidity.
If any Section, paragraph, sentence, clause or phrase of this Indenture shall for any reason
be held illegal or unenforceable, such holding shall not affect the validity of the remaining
portions of this Indenture. The Town hereby declares that it would have adopted this Indenture
and each and every other Section, paragraph, sentence, clause or phrase hereof and authorized
the issue of the Bonds pursuant thereto irrespective of the fact that any one or more Sections,
paragraphs, sentences, clauses, or phrases of this Indenture may be held illegal, invalid or
unenforceable.
Section 16.8 Applicable Laws.
This Indenture shall be governed by and enforced in accordance with the laws of the
State of Texas applicable to contracts made and performed in the State of Texas.
Section 16.9 Payment on Business Day.
In any case where the date of the maturity of interest or of principal (and premium, if
any) of the Bonds or the date fixed for redemption of any Bonds or the date any action is to be
taken pursuant to this Indenture is other than a Business Day, the payment of interest or principal
(and premium, if any) or the action need not be made on such date but may be made on the next
succeeding day that is a Business Day with the same force and effect as if made on the date
requir ed and no interest shall accrue for the period from and after such date.
Section 16.10 Counterparts.
This Indenture may be executed in counterparts, each of which shall be deemed an
original.
Section 16.11 Trustee’s Electronic Means Procedures and Requirements.
The Trustee shall have the right to accept and act upon instructions, including funds
transfer instructions (“Instructions”) given pursuant to the Indenture and delivered using
Electronic Means (“Electronic Means” means the following communications methods: email,
facsimile transmission, secure electronic transmission containing applicable authorization codes,
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passwords and/or authentication keys issued by the Trustee, or another method or system
specified by the Trustee as available for use in connection with its services hereunder); provided,
however, that the Town shall provide to the Trustee an incumbency certificate listing officers
with the authority to provide such Instructions (“Authorized Officers”) and containing specimen
signatures of such Authorized Officers, which incumbency certificate shall be amended by the
Town whenever a person is to be added or deleted from the listing. If the Town elects to give the
Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon
such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling.
The Town understands and agrees that the Trustee cannot determine the identity of the actual
sender of such Instructions and that the Trustee shall conclusively presume that directions that
purport to have been sent by an Authorized Officer listed on the incumbency certificate provided
to the Trustee have been sent by such Authorized Officer. The Town shall be responsible for
ensuring that only Authorized Officers transmit such Instructions to the Trustee and the Town
and all Authorized Officers are solely responsible to safeguard the use and confidentiality of
applicable user and authorization codes, passwords and/or authentication keys upon receipt by
the Town. The Trustee shall not be liable for any losses, costs or expenses arising directly or
indirectly from the Trustee’s reliance upon and compliance with such Instructions
notwithstanding such directions conflict or are inconsistent with a subsequent written instruction.
The Town agrees: (i) to assume all risks arising out of the use of Electronic Means to submit
Instructions to the Trustee, including without limitation the risk of the Trustee acting on
unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is
fully informed of the protections and risks associated with the various methods of transmitting
Instructions to the Trustee and that there may be more secure methods of transmitting
Instructions than the method(s) selected by the Town; (iii) that the security procedures (if any) to
be followed in connection with its transmission of Instructions provide to it a commercially
reasonable degree of protection in light of its particular needs and circumstances; and (iv) to
notify the Trustee immediately upon learning of any compromise or unauthorized use of the
security procedures.
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IN WITNESS WHEREOF, the Town and the Trustee have caused this Indenture of Trust
to be executed all as of ___________________.
TOWN OF TROPHY CLUB, TEXAS
By: _________________________________
Mayor
[SEAL]
Attest:
____________________________________
Town Secretary
Approved as to Form:
____________________________________
Town Attorney
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., as Trustee
By: _________________________________
Authorized Officer
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Texas
New York
Washington, DC
Connecticut
Seattle
Dubai
London
Benjamin A. Brooks
Partner
214.758.1022 Office
214.468.3888 Fax
Ben.Brooks@bgllp.com
Bracewell & Giuliani LLP
1445 Ross Avenue
Suite 3800
Dallas, Texas
75202-2711
November 20, 2015
Honorable Mayor and Town Council Members
Town of Trophy Club, Texas
100 Municipal Drive
Trophy Club, Texas 76004
Dear Honorable Mayor and Town Council Members:
We are pleased to set forth in this letter the terms of our engagement as bond and finance
counsel for the Town of Trophy Club, Texas (the “Town”) in connection with its issuance of
the Trophy Club Public Improvement District No.1 Special Assessment Revenue Refunding
Bonds, Series 2015 (the “Bonds”) and such other general finance matters as may be referred
to us from time to time. We appreciate the confidence you have shown in Bracewell &
Giuliani LLP (“B&G” or “Firm”) and look forward to this opportunity to represent your
interests.
It is our practice to confirm the terms and conditions of our engagements, and that is the
purpose of this Engagement Letter and the attached Terms of Engagement. This engagement
has been approved by B&G subject to the conditions described in this letter.
Scope of Engagement
We agree that our services as Bond Counsel will include the following:
1. Attendance at all Town Council meetings of the Town as required or
requested in connection with the planning and authorization of Bonds,
including consultation on federal income tax matters;
2. Preparation of the ordinance and indenture of the Town authorizing issuance
of Bonds, together with all other legal documents comprising the transcript of
proceedings for authorization and issuance of Bonds;
3. Preparation of and submission to the Attorney General of Texas of a transcript
of proceedings for the Bonds to obtain the approval of the Attorney General
and registration of Bonds by the Comptroller of Public Accounts of Texas;
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4. Preparation and filing of legal documents required under federal income tax
law for the Bonds, and the preparation of and delivery to the Town of a Letter
of Instructions with respect to the federal income tax treatment of Bond
proceeds;
5. Representation of the Town at the closing of the sale of Bonds, including
preparation of all closing documents; and
6. If appropriate, the delivery at closing of our approving opinion as to the
validity of the Bonds under Texas law, and the exclusion of interest on the
Bonds from gross income of the holders under federal income tax law.
The services outlined above do not include such matters as services as disclosure counsel in
connection with the sale of the Bonds, work on post closing federal tax or disclosure issues,
obtaining IRS rulings or clarifications of federal tax law, presentations to rating agencies or
bond insurers, or “blue sky” or securities registration services. We will be pleased to provide
legal services in connection with any matters not included in paragraphs 1 through 7 above,
but we believe that such additional services, if requested by the Town, should be the subject
of an addendum to this letter or a separate letter of engagement. Our representation of the
Town with respect to the Bonds will end upon the closing for the Bonds.
This Engagement Letter may be supplemented to reflect new matters or issues that deviate
from the current engagement in scope, billing arrangements, complexity, risk, or that
otherwise require a substantial change in terms and conditions. The Terms of Engagement,
however, will govern all projects and engagements for Client.
Fees, Expenses and Billing with Respect to Services
Fees for our services in connection with the issuance of the Bonds shall be $150,000. Our
fee with respect to the Bonds shall be payable at the time of delivery of the Bonds to the
purchaser thereof. Occasionally, the Town may request us to perform miscellaneous legal
services not related to a specific issue of Bonds. We propose that such services be performed
on an hourly basis according to our normal hourly rates charged to other clients and billed
monthly.
Conflicts of Interest: Applicable Standard
For purposes of evaluating conflicts of interests, you acknowledge that B&G relies upon the
Texas Disciplinary Rules of Professional Conduct. B&G may represent other clients that
may be adverse to your interests in substantially unrelated matters, and it may represent other
clients within the same industry.
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Alternative Dispute Resolution
In the event of disputes arising under or pertaining to this engagement, the parties, in good
faith, will consider non-binding mediation in an attempt to resolve such disputes prior to
proceeding with litigation. Any such mediation will be conducted by a mutually acceptable
mediator at a location acceptable to the Town and B&G.
Conclusion
You are encouraged to discuss the terms of this engagement letter with the independent
counsel of your choice. Please call me if you wish to discuss any aspect of this engagement.
If this Engagement Letter, including the provisions in the attached Terms of Engagement,
correctly reflects your understanding of the terms and conditions of our representation, please
sign the enclosed copy of this letter in the space provided and return one original to B&G.
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Honorable Mayor and Town Council Members
November 20, 2015
Page 4
Thank you again for the opportunity to represent you in this matter.
Very truly yours,
Bracewell & Giuliani LLP
By: _________________________________
Name: Benjamin A. Brooks III
Attachments
AGREED AND ACCEPTED:
TOWN OF TROPHY CLUB
By: _________________________________
Its: _________________________________
Date: _______________________________
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BRACEWELL & GIULIANI LLP
TERMS OF ENGAGEMENT
Introduction
These are the Terms of Engagement adopted by Bracewell & Giuliani LLP (“B&G”) and the
addressee of the preceding Engagement Letter (“Client”) and referred to in our Engagement
Letter as the basis for our representation. Because they are an integral part of our agreement
to provide representation, we ask that you review this document carefully and retain it for
your files. If you have any questions after reading it, please promptly inform your principal
contact at the Firm.
Client of the Firm
Because B&G has been engaged to represent the Client only, the engagement does not
include the Client’s family members, affiliated or related entities, or their respective
individual officers, directors, partners, equity owners or employees.
Unless otherwise specifically stated in the Engagement Letter, our representation does not
include any parent, subsidiary, or affiliated entity; employee, officer, director, shareholder,
member or partner of an entity; or, any commonly owned entity. For any trade association,
our representation does not include any member of the trade association; and for individuals,
our representation does not include any employer, partner, spouse, sibling, or other family
member. In the event we are asked to undertake representation of any other entity in
connection with this engagement, we will do so only by agreement defined in the
Engagement Letter. By execution of the Engagement Letter, Client consents to B&G’s use
of the name and a generic description of the transaction in B&G marketing materials.
Confidential Client information will not be included in such materials.
Our Relationship with Others and Conflicts of Interest
Conflict of Interest is a concern for B&G and its clients. We attempt to identify actual and
potential conflicts at the outset of each engagement. Unfortunately, conflicts sometimes arise
or become apparent after work begins on an engagement. When that happens, we will do our
best to address and resolve the situation in the manner that best serves the interests of all of
our affected clients.
Client and B&G agree that matters relating to legal ethics and professionalism, including
Conflicts of Interest, will be resolved by the Texas Disciplinary Rules of Professional
Conduct.
B&G accepts this engagement on the understanding that our representation of you will not
preclude us from accepting another engagement from a new or existing client provided that
(1) such engagement is not substantially related to the subject matter of services we provide
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to you and (2) such other engagement would not impair the confidentiality of related client
information.
Staffing the Project
In most cases, one attorney will be your primary contact. In order to provide you with the
expertise of our firm, and to provide services on a cost effective basis, that attorney will
delegate parts of your work to other lawyers, paralegals and professionals.
Billing Arrangements and Terms of Payment
Fees for professional services and expenses are not contingent on the outcome of the project,
unless expressly stated in the Engagement Letter.
Unless expressly stated in the Engagement Letter, B&G issues invoices on a periodic basis,
normally each month, for fees and expenses. Invoices are due on receipt and are considered
past due 30 days after receipt.
Clients frequently ask us to estimate the fees and other charges they are likely to incur in
connection with a particular matter. Any estimate is based on professional judgment and
facts and circumstances that appear at the time. As such, any estimate is subject to the
understanding that, unless we agree otherwise in writing, it does not represent a maximum,
minimum, or fixed-fee quotation. The ultimate cost frequently is more or less than the
amount estimated.
It may be necessary for us to retain third parties with regard to our services described under
“Scope of Engagement”, such as consultants, experts and investigators, in order to represent
you adequately. In that event, you will be responsible for the prompt payment of the invoices
of those third parties. Although we may advance third-party disbursements in reasonable
amounts, we will ask you to pay larger third-party invoices (usually those over $500) directly
to the third party providing the services. We will submit a request for written approval to the
City for any third party services reasonably expected to exceed $10,000 prior to retaining
such third party services.
Taxes
The Client agrees that all payments under the Engagement Letter shall be payable to B&G in
U.S. Dollars, free and clear of any and all present and future taxes, levies, imposts, duties,
deductions, withholdings, fees, liabilities and similar charges (the “Taxes”). If any Taxes are
required to be withheld or deducted from any amount payable under the Engagement Letter,
then the amount payable under the Engagement Letter shall be increased to the amount
which, after deduction from such increased amount of all Taxes required to be withheld or
deducted therefrom, will yield to B&G the amounts stated to be payable to B&G under the
Engagement Letter.
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Termination
Because B&G has been engaged to provide services in connection with the representation
specifically defined in our Engagement Letter, the attorney-client relationship terminates
upon our completion of those services.
You may terminate the engagement at any time, with or without cause, by notifying us in
writing. The firm also can terminate the engagement before the completion of its
representation of you in the specified matter if (a) the continued representation would result
in a violation of the applicable rules of professional conduct or other law; (b) the termination
can be accomplished without material adverse effect on your interests; (c) you persist in a
course of action that B&G reasonably believes is criminal or fraudulent, or you have used our
services to perpetrate a crime or fraud, (d) the firm has a fundamental disagreement with the
objective or tactics in this engagement; (e) you deliberately and substantially fail to discharge
an obligation regarding this engagement, including the payment of fees and expenses and the
duty of cooperation as provided in the Terms of Engagement; or (f) other good cause for
termination exist. In the event that the firm intends to terminate the engagement, the firm
will give reasonable notice and allow you access to your files relating to this engagement.
For purposes of this Engagement Letter, this engagement terminates upon written notice of
termination by Client or by B&G.
The termination of our services will not affect your responsibility for payment of legal
services rendered and other charges incurred before termination and in connection with an
orderly transition of the project.
After completion of the representation, however, changes may occur in the applicable laws or
regulations that could affect your future rights and liabilities in regard to the matter. B&G
has no continuing obligation to give advice with respect to any future legal developments that
may relate to the project.
Retention of Client Files
Client files are limited to: materials supplied by Client; final contracts; estate planning
documents, deeds and corporate records; and, routine correspondence related to this
engagement. At the close of any matter, Client files may be returned to you, sent to a private
storage facility, archived for a limited time or destroyed. The attorney closing the file will
determine, at his or her discretion, the disposition of Client files, unless you make a specific
written request that they be returned.
Your request for return of Client files must be delivered to B&G no later than 120 days after
the last substantive service relating to the closed matter. A substantive service does not
include audit letter research and preparation, or any other service that does not directly relate
to the substantive discharge of a Client engagement. Your request must be specific and
designate your representative to receive the files. Client is responsible for paying the
reasonable cost to retrieve, duplicate and deliver the Client files.
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B&G adopted a program of document retention and management of electronically stored
information, including regular deletion of outdated, corrupt or useless files. Such program
may change from time-to-time.
It is important for Client to alert B&G in advance of special treatment, sensitive information,
retention requirements and other unique conditions pertaining to Client files. Client agrees
that it will notify B&G in a timely, written and specific manner, concerning any requirement
for special or unusual handling or attention of its Client files. This includes any statutory or
regulatory requirements relating to confidentiality and retention of Client files.
B&G Files
You agree that B&G will own and retain its own files and any related electronically stored
information pertaining to the engagement. You will not have the right or ability to require us
to deliver such files and records (or copies thereof) to you. Examples of B&G files and
records are: firm administrative records, financial files and documents, time and expense
reports, personnel and staffing materials, credit and accounting records, electronic mail
correspondence (other than such correspondence which was sent to you by a member of our
firm) and internal lawyer’s work product, such as drafts, notes, memoranda and legal and
factual research, including investigative reports prepared by or for the internal use of
lawyers. Further, at the discretion of the responsible partner for the project in question, we
may destroy any such documentation which is the property of B&G or any documentation
which such partner determines to be duplicative or unnecessary in all cases without having to
obtain your consent.
Choice of Law
Because B&G performs legal services in a number of jurisdictions, for consistency and
predictability, the Client and B&G agrees that the Texas Disciplinary Rules of Professional
Conduct (found at www.texasbar.com or www.txethics.org) will govern all issues of legal
ethics and professionalism.
Disclaimer
We cannot guarantee the outcome of any matter. Any expression of our professional
judgment regarding your matter or the potential outcome is, of course, limited by our
knowledge of the facts and based on the law at the time of expression. It is also subject to
any unknown or uncertain factors or conditions beyond our control.
Either at the commencement or during the course of the representation, we may express
opinions or beliefs about the matter or various courses of action and the results that might be
anticipated. Any expressions on our part concerning the outcome of the representation, or
any other legal matters, are based on our professional judgment and are not guarantees.
By signing the Engagement Letter or otherwise indicating your acceptance of the
Engagement Letter, you acknowledge that B&G has made no promises or guarantees to you
about the outcome of the representation, and nothing in these Terms of Engagement shall be
construed as such a promise or guarantee.
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Your Cooperation
To enable us to provide effective representation, you agree to: (1) disclose to us fully,
accurately and on a timely basis, all facts and documents that are or might be material or that
we may request; (2) keep us apprised on a timely basis of all developments relating to the
representation that are or might be material; (3) attend meetings, conferences, and other
proceedings when it is reasonable to do so; (4) provide updated information for conflicts
purposes, if necessary; and (5) cooperate fully with us in all matters relating to the
engagement.
Modification of Our Agreement
The Terms of Engagement reflect our agreement on the terms of all engagements, and are not
subject to any oral agreements, modifications, or understandings. Any change in these Terms
of Engagement must be made in writing signed by both B&G and Client.
In Conclusion
If you have questions or concerns, at any time, relating to the terms and conditions of this
engagement, the services or advice provided by B&G, or the fees and expenses reflected in
the invoices, please bring them to the attention of your principal contact at our firm, or
B&G’s General Counsel or Managing Partner.
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100 Municipal Drive
Trophy Club, Texas 76262Trophy Club Entities
Legislation Details (With Text)
File #: Version:12015-0780-T Name:
Status:Type:Agenda Item Executive Session
File created:In control:11/18/2015 Town Council
On agenda:Final action:11/23/2015
Title:Pursuant to the following designated sections of the Texas Government Code, Annotated, Chapter
551 (Texas Open Meetings Act), the Council will convene into closed executive session to discuss the
following:
Texas Government Code Section 551.071(2) Consultation with Attorney, in order to consult with its
attorney on a matter in which the duty of the attorney to the Governmental Body under the Disciplinary
Rules of Professional Conduct of the State Bar of Texas clearly conflict with the Open Meetings Act:
(A) Legal Advice regarding zoning, comprehensive plan, platting, and other Town development
and code regulations
Attachments:
Action ByDate Action ResultVer.
Pursuant to the following designated sections of the Texas Government Code, Annotated, Chapter 551 (Texas Open
Meetings Act), the Council will convene into closed executive session to discuss the following:
Texas Government Code Section 551.071(2) Consultation with Attorney, in order to consult with its attorney on a
matter in which the duty of the attorney to the Governmental Body under the Disciplinary Rules of Professional
Conduct of the State Bar of Texas clearly conflict with the Open Meetings Act:
(A) Legal Advice regarding zoning, comprehensive plan, platting, and other Town development and code regulations
Town Council Page 99 of 100 Meeting Date: November 23, 2015
100 Municipal Drive
Trophy Club, Texas 76262Trophy Club Entities
Legislation Details (With Text)
File #: Version:12015-0781-T Name:
Status:Type:Agenda Item Regular Session
File created:In control:11/18/2015 Town Council
On agenda:Final action:11/23/2015
Title:Consider and take appropriate action regarding the Executive Session.
Attachments:
Action ByDate Action ResultVer.
Consider and take appropriate action regarding the Executive Session.
Town Council Page 100 of 100 Meeting Date: November 23, 2015