HomeMy WebLinkAbout6227RESOLUTION NO. 6227
A RESOLUTION APPROVING THE SERIES 1988-A FISCAL
AGENCY AGREEMENT AND MASTER FISCAL AGENCY AGREE-
MENT RELATING TO LOAN GUARANTEE ASSISTANCE UNDER
SECTION 108 OF THE HOUSING AND COMMUNITY DEVEL-
OPMENT ACT BETWEEN THE CITY OF PUEBLO, COLORADO,
AND BANKERS TRUST COMPANY AND THE SUBSTITUTED
PROMISSORY NOTES, AND AUTHORIZING THE PRESIDENT
OF THE CITY COUNCIL TO EXECUTE AND DELIVER SAID
AGREEMENTS AND PROMISSORY NOTES
WHEREAS, the City's request for loan guarantee assistance
under Section 108 of the Housing and Community Development Act of
1974, as amended, (the "Act ") consisting of the guarantee of
Promissory Notes in the aggregate principal amount of $1,165,000,
plus interest, to finance the acquisition of real property and
related activities as described in application B- 87 -MC -08 -0007
(the Fountain Creek Flood Control Project) has been approved by
the U.S. Department of Housing and Urban Development ( "HUD "), and
WHEREAS, the Series 1988 -A Fiscal Agency Agreement and Master
Fiscal Agency Agreement and substituted Promissory Notes in the
aggregate principal amount of $1,165,000.00 must be executed
pursuant to the loan guarantee commitment from HUD issued under
Section 108 of the Act and the Contract For Loan Guarantee
Assistance previously approved and executed by the City; NOW,
THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that:
SECTION 1
The Series 1988 -A Fiscal Agency Agreement and Master Fiscal
Agency Agreement (the "Agreements ") and substituted Promissory
Notes in the aggregate principal amount of $1,165,000.00 (the
"Promissory Notes "), copies of which are on file in the office of
the City Clerk and incorporated herein as if set out herein in
full, having been approved as to form by the City Attorney, are
hereby approved.
SECTION 2
The President of the City Council is hereby authorized and
directed to execute and deliver the Agreements and the Promissory
Notes for and on behalf of the City and the City Clerk is directed
to attest same and affix the seal of the City thereto.
INTRODUCED: June 27, 1988
B MIKE SALARDINO
Councilman
ATTEST: APPROVED:
4144,0;ou A - lei
Cit erk Pre ident of the City Council
-2-
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
• • WASHINGTON, D.C. 20410
ASSISTANT SECRETARY FOR
COMMUNITY PLAWSW AND DEVELOPMENT
W. Lewis A. Quigley
City Manager
#1 City Hill Place
Paeblo, Gblorado 81003
Ge
t
Dear W. Quigley:
Enclosed are the documents necessary for the inclusion of your obligation
in a public offering of notes guaranteed under Section 108 of the Housing and
Community Development Act of 1974, as amended. The public offering is
scheduled for July 7,, 1988, and will be underwritten by Citicorp Investment
Bank, SaIown Brothers Inc, and Smith Barney, Farris Upham do Co.
The documents are: the promissory notes; the Series 1988 -A Fiscal Agency
Agreement and the Master Fiscal Agency Agreement awng the Borrowers and
Bankers Trust Conpany; and a form containing information necessary to wire
transfer funds.
The notes are substitutes for your original note, as provided on page 4
of the original note. There is one note per principal maturity. The first
interest payment will be February 1, 1989, (not August 1, 1988). The public
offering notes delete the language in the original note relating to interim
financing. The public offering notes also have a few terms not included in
the original note. The "Date of This Note" will be the public offering date
and will be filled in on that date. The interest rate will be established for
each maturity the week before the public offering date. The public offering
note references the Fiscal Agency Agreement (included in this package for your
signature). The note also provides for interest to be paid on late
payments. (However, if you pay late you will be in default.)
The public offering notes will be delivered by HM to the fiscal agent
two days before the public offering date and will be held in escrow. At
closing, your original note will be paid and cancelled and the public offering
notes will be registered and delivered to the holder.
The Series 1988 -A Fiscal. Agency Agreement is an agreement to be bound by
the Master Fiscal Agency Agreement among the Borrowers and Bankers Trust
Company, as Fiscal Agent. Please sign the Series 1988 -A Agreement and return
it to Him. You do not need to sen"'us the Master Agreement. The agreement
sets forth your duties and responsibilities and those of the fiscal agent.
Note that payment on the notes is due to the fiscal agent five business days
before the payment date on the notes.
1-be Contract for Loan Guarantee Assistance that you already signed covers
your original note and the public offering note. It requires you to pay the
customary and usual issuance, underwriting, and other costs of the public
offering and provides when and how payment of the coats is to be made. The
final amount of the costs will not be known until one week before the public
offering date. We will tell you the amount at that time. The enclosed form
for wire transfer of funds provides the information that you will need to wire
payments on the notes to the fiscal agent.
When you return the executed documents to us, please include an oqim LQIL
of your counsel, as required by the Contract, that:
- the notes are valid, binding, and enforceable obligations of the
borrower,
- the governing body has authorized, in accordance with applicable
state and local law, the issuance of the notes,
the pledge of grants pursuant to 24 CFR S570.703(b)(2) is valid,
- there is no outstanding litigation that will affect the validity
of the notes, and
- the Series 1988 -A Fiscal Agency Agreement is a valid, binding, and
enforceable obligation of the borrower.
Return the executed documents and the legal opinion by June 22, 1988, to:
U.S. Department of,Housing and Urban Development
ACM N: Paul Webster, Director, Financial Nknagement Division
Office of Block Gant Assistance
451 Seventh St., S.W., Roam 7180
Wkshington, D.C. 20410
If "you have any questions regarding this letter, please contact the
Financial Management Division at (202) 755 -1871.
Sincerely,
Patch
Director, Office of Block Gant Assistance
Enclosures
0 ED
June 27, 1988 :/L � p
City of Pueblo
Secretary of Housing THOMAS E. JAGGER
and Urban Development City Attorney
U.S. Department of 127 West, First National Bank Bldg.
Urban Development PUEBLO, COLORADO 81003
Washington, D.C. 20410 -7000
Dear Sir:
We have acted as counsel to the City of Pueblo, a municipal corporation
(the "City ") in connection with the City's authorization, execution and
delivery of the.Contract For Loan Guarantee Assistance under Section 108
of the Housing and Community Development Act of 1974, as amended (42
U.S.C. 55308) between the City and the Secretary of Housing and Urban
Development and Attachment 1 (Custodial Account) and Attachment 2
(Custodial Investment Account (collectively, the "Contract "), the Master
Fiscal Agency Agreement and Series 1988-A Fiscal Agency Agreement between
the City and Bankers Trust Company (the "Agreements ") and the six substi-
tuted Promissory Notes in the aggregate Principal Amount of $1,165,000
bearing Note No. B- 87 -MC -08 -0007 issued in connection with the Contract
(the "Promissory Notes").
We have reviewed the Contract, Agreements, Promissory Notes and proceed-
ings of the City Council of the City taken in the authorization and issu-
ance thereof, and based upon such review we are of the opinion that:
1. The Agreements and the Promissory Notes are valid, binding and
enforceable obligations of the City, subject to the qualification that the
Promissory Notes shall never constitute a debt or indebtedness of the City
within the meaning of any provision or limitation of the Constitution or
statutes of the State of Colorado, or the home rule charter of the City,
and shall not constitute nor give rise to a pecuniary liability of the
City or a charge against its general credit or taxing power, and subject
to the further qualification that the Promissory Notes are not general
obligations of the City but special, limited obligations of the City
payable solely from the security pledged in paragraph 5 of the Contract
referenced in the Promissory Notes and to which the Promissory Notes are
made subject.
2. The City Council of the City has authorized in accordance with
applicable State and local law the issuance of the Promissory Notes.
3. The pledge of grants pursuant to 24 CFR §570.703(b)(2) is valid.
4. There is no outstanding litigation that would affect the validity
of the Promissory Notes.
Very truly yours,
Tho' mas
City Attorney
City of Pueblo, Colorado
SERIES 1988 -A FISCAL AGENCY AGREEMENT
Section 1. This SERIES 1988 -A FISCAL AGENCY AGREEMENT (the
"Fiscal Agency Agreement ") is made and entered into as of this
third day of June, 1988 by and among the undersigned Borrowers
(collectively, the "Borrowers") Fiscal Trust aaAgent "New
York banking corporation, as
Section 2. The parties agree that all terms and provisions of
the Master F iacal Agency Agreement by and among the Borrowers and
the Fiscal Agent, a copy of which is attached hereto as Exhibit A
are by this reference thereto incorporated herein and made a part
of this Fiscal Agency Agreement, and the parties hereby agree to be
bound by all such terms and provisions.
Section 3. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given
when and if personally delivered at or mailed by registered mail,
postage prepaid (a) in the case of the Borrower, to the address
specified below, or such other address as may hereafter be
furnished to the Fiscal Agent in writing by the Borrower, and (b)
In the case of the Fiscal Agent, to P.O. Box 318 Church Street
Station, New York, New York 10015, Attentions Public Debt
Services, or such other address as may hereafter be furnished to
the Borrowers in writing by the Fiscal Agent.
This Fiscal Agency Agreement may be executed in several
counterparts, each of which shall be an original and all of which
together constitute but one and the same instrument.
IN WITNESS WHMBOF, the Borrowers and the Fiscal Agent have
caused their their
thereunto y
written.
RRIKERS TRUST O01IpANY the OIIBRS
CITY OF BALTIMU MARYLAND
By:
Authorized Officer By:
itle:
Address:
Attention:
NOTE NUMBER: B- 87 -MC -08 -0007
DATE OF THIS NOTE:
NOTE
BORROWER: City of Pueblo,
Colorado
REGISTERED
HOLDER:
PRINCIPAL
AMOUNT: $150,000
INTEREST RATE:
MATURITY DATE: August 1, 1989
CUSIP:
For value received, the undersigned, the City of Pueblo,
Colorado (the "Borrower ", which term includes any successors and
assigns), a municipal corporation organized and existing under the
laws of the State of Colorado promises to pay to the order of the
above named Registered Holder (the "Holder ", which term includes
any successors or assigns), at the time, in the manner, and with
interest at the rate hereinafter provided, the principal amount of
one hundred fifty thousand Dollars ($ 150,000 ) on the Maturity
Date.
The Note shall be delivered initially in fully registered
form to Bankers Trust Company, New York, New York as Fiscal Agent
(the "Fiscal Agent ") pursuant to the terms of the Series 1988 -A
Fiscal Agency Agreement (the "Fiscal Agency Agreement "), dated as
of June 3, 1988 between the Fiscal Agent and the Borrower. The
Fiscal Agency Agreement provides for the Fiscal Agent to perform
certain duties, including duties of paying agent and registrar for
the Note. This Note may be surrendered to the Fiscal Agent for
registration of transfer or exchange, as provided in the Fiscal
Agency Agreement. The Fiscal Agent shall permit reasonable
inspection to be made of a copy of the Fiscal Agency Agreement
kept on file at its corporate trust office.
From the Date of this Note until the Maturity Date, interest
at the Interest Rate shall be paid semiannually on February 1 and
August 1 of each year, commencing February 1 1989, and at
maturity (the "Payment Dates "). Interest shall be calculated on
the basis of a 360 day year, consisting of twelve 30 -day months.
Principal and interest shall be paid in such funds as are at
the time of payment legal tender for the payment of debts due to
the United States, in the manner and as provided in the Fiscal
Agency Agreement.
F
This note evidences indebtedness incurred pursuant to and in
accordance with a Contract for Loan Guarantee Assistance (the
"Contract ") dated as of , 198 and any
amendments, between the Borrower and the Secretary of-Housing and
Urban Development (the "Secretary ") and pursuant to Section 108 of
the Housing and Community Development Act of 1974, as amended, 42
U.S.C. §5308 (the "HCD Act "). This Note is subject to the terms
and provisions of said Contract, to which Contract reference is
hereby made for a- statement of said terms and provisions,
including a description of the collateral security for this
Note. The payment of principal and interest when and as due on
this Note in accordance with its terms is unconditionally
guaranteed by the Secretary to the holder (the "Guarantee "). The
Secretary's Guarantee shall be executed contemporaneously with
execution of this Note, and shall be issued pursuant to and in
accordance with the terms and provisions of the Contract and
Section 108 of the HCD Act.
If a payment required to be made on this Note has not been
duly received by the Fiscal Agent from either the Borrower or the
Secretary by the close of business on the second business day next
succeeding a Payment Date, pursuant to the terms of the Contract,
interest shall accrue on the amount of such payment at the
Interest Rate from such Payment Date until the date of payment to
the Fiscal Agent.
To the extent not inconsistent with applicable law, this Note
shall be subject to modification by such amendments as may be
agreed upon from time to time by the Secretary, the Borrower and
the Holder (or if the Holder is The Depository Trust Company, by
the owners of the beneficial interests in the Note).
A default under this Note shall occur upon failure by the
Borrower to pay when due principal or interest on the Note, as
provided in the Contract, unless payment is made when due by the
Secretary pursuant to the terms and provisions of the Contract.
The Borrower hereby waives notice of default and opportunity for
hearing for failure to make a payment when due.
The Secretary may declare a Borrower in default under this
Note if the Secretary makes a final decision in accordance with
the provisions of 24 C.F.R. §570.913, including requirements for
reasonable notice and opportunity for hearing, that the Borrower
has failed to comply substantially with Title I of the HCD Act.
Notwithstanding any other provision, following the giving of such
reasonable notice, the Secretary may withhold the guarantee of any
or all obligations not yet guaranteed under outstanding
commitments and request the Borrower's financial institution to
refuse to honor any instruments drawn upon, or withdrawals from
the Guaranteed Loan Funds Account or to release obligations and
assignments from the Guaranteed Loan Funds Investment Account,
pending the Secretary's final decision.
3
This Note is not subject to prepayment or acceleration.
The Borrower hereby waives any requirement for presentment,
protest or other demand or notice with respect to this Note.
This Note is issued, executed, and delivered on behalf of the
Borrower by its authorized official as an obligation guaranteed by
the Secretary pursuant to Section 108 of the HCD Act.
IN WITNESS WHEREOF, the undersigned, as an authorized
official of the Borrower, has executed and delivered this Note.
ATTEST:
Name
(Title)
City of Pueblo, Colorado
BORROWER
BY
Name
(Title)
Signature Signature
NOTE NUMBER: B- 87 -MC -08 -000? DATE OF THIS NOTE:
NOTE
BORROWER: City of Pueblo,
Colorado PRINCIPAL
AMOUNT: $165,000
INTEREST RATE:
REGISTERED
HOLDER:
MATURITY DATE: August 1, 1990
CUSIP:
For value received, the undersigned, the City of Pueblo,
Colorado (the "Borrower ", which term includes any successors and
assigns), a municipal corporation organized and existing under the
laws of the State of Colorado promises to pay to the order of the
above named Registered Holder (the "Holder ", which term includes
any successors or assigns), at the time, in the manner, and with
interest at the rate hereinafter provided, the principal amount of
one hundred sixty five thousand Dollars ($ 165,000 ) on the Maturity
Date.
The Note shall be delivered initially in fully registered
form to Bankers Trust Company, New York, New York as Fiscal Agent
(the "Fiscal Agent ") pursuant to the terms of the Series 1988 -A
Fiscal Agency Agreement (the "Fiscal Agency Agreement "), dated as
of June 3, 1988 between the Fiscal Agent and the Borrower. The
Fiscal Agency Agreement provides for the Fiscal Agent to perform
certain duties, including duties of paying agent and registrar for
the Note. This Note may be surrendered to the Fiscal Agent for
registration of transfer or exchange, as provided in the Fiscal
Agency Agreement. The Fiscal Agent shall permit reasonable
inspection to be made of a copy of the Fiscal Agency Agreement
kept on file at its corporate trust office.
From the Date of this Note until the Maturity Date, interest
at the Interest Rate shall be paid semiannually on February 1 and
August 1 of each year, commencing February 1, 1989, and at
maturity (the "Payment Dates "). Interest shall be calculated on
the basis of a 360 day year, consisting of twelve 30 -day months.
Principal and interest shall be paid in such funds as are at
the time of payment legal tender for the payment of debts due to
the United States, in the manner and as provided in the Fiscal
Agency Agreement.
✓1
This note evidences indebtedness incurred pursuant to and in
accordance with a Contract for Loan Guarantee Assistance (the
"Contract ") dated as of , 198 and any
amendments, between the Borrower and the Secretary of Housing and
Urban Development (the "Secretary ") and pursuant to Section 108 of
the Housing and Community Development Act of 1974, as amended, 42
U.S.C. §5308 (the "HCD Act "). This Note is subject to the terms
and provisions of said Contract, to which Contract reference is
hereby made for a statement of said terms and provisions,
including a description of the collateral security for this
Note. The payment of principal and interest when and as due on
this Note in accordance with its terms is unconditionally
guaranteed by the Secretary to the holder (the "Guarantee "). The
Secretary's Guarantee shall be executed contemporaneously with
execution of this Note, and shall be issued pursuant to and in
accordance with the terms and provisions of the Contract and
Section 108 of the HCD Act.
If a payment required to be made on this Note has not been
duly received by the Fiscal Agent from either the Borrower or the
Secretary by the close of business on the second business day next
succeeding a Payment Date, pursuant to the terms of the Contract,
interest shall accrue on the amount of such payment at the
Interest Rate from such Payment Date until the date of payment to
the Fiscal Agent.
To the extent not inconsistent with applicable law, this Note
shall be subject to modification by such amendments as may be
agreed upon from time to time by the Secretary, the Borrower and
the Holder (or if the Holder is The Depository Trust Company, by
the owners of the beneficial interests in the Note).
A default under this Note shall occur upon failure by the
Borrower to pay when due principal or interest on the Note, as
provided in the Contract, unless payment is made when due by the
Secretary pursuant to the terms and provisions of the Contract.
The Borrower hereby waives notice of default and opportunity for
hearing for failure to make a payment when due.
The Secretary may declare a Borrower in default under this
Note if the Secretary makes a final decision in accordance with
the provisions of 24 C.F.R. §570.913, including requirements for
reasonable notice and opportunity for hearing, that the Borrower
has failed to comply substantially with Title I of the HCD Act.
Notwithstanding any other provision, following the giving of such
reasonable notice, the Secretary may withhold the guarantee of any
or all obligations not yet guaranteed under outstanding
commitments and request the Borrower's financial institution to
refuse to honor any instruments drawn upon, or withdrawals from
the Guaranteed Loan Funds Account or to release obligations and
assignments from the Guaranteed Loan Funds Investment Account,
pending the Secretary's final decision.
3
The Borrower hereby waives any requirement for presentment,
protest or other demand or notice with respect to this Note.
This Note is issued, executed, and delivered on behalf of the
Borrower by its authorized official as an obligation guaranteed by
the Secretary pursuant to Section 108 of the HCD Act.
This Note is not subject to prepayment or acceleration.
IN WITNESS WHEREOF, the undersigned, as an authorized
official of the Borrower, has executed and delivered this Note.
ATTEST:
Name
City of Pueblo, Colorado
BORROWER
M
Title
(Title)
(Signature) Signature
NOTE NUMBER: B- 87 -MC -08 -0007
NOTE
BORROWER: City of Pueblo,
Colorado
DATE OF THIS NOTE:
PRINCIPAL
AMOUNT: $185,000
INTEREST RATE:
MATURITY DATE: August 1, 1991
REGISTERED
HOLDER: CUSIP:
For value received, the undersigned, the City of Pueblo,
Colorado (the "Borrower ", which term includes any successors and
assigns), a municipal corporation organized and existing under the
laws of the State of Colorado promises to pay to the order of the
above named Registered Holder (the "Holder ", which term includes
any successors or assigns), at the time, in the manner, and with
interest at the rate hereinafter provided, the principal amount of
one hundred eighty five thousand Dollars ($ 185,000 ) on the
Maturity Date.
The Note shall be delivered initially in fully registered
form to Bankers Trust Company, New York, New York as Fiscal Agent
(the "Fiscal Agent ") pursuant to the terms of the Series 1988 -A
Fiscal Agency Agreement (the "Fiscal Agency Agreement "), dated as
of June 3, 1988 between the Fiscal Agent and the Borrower. The
Fiscal Agency Agreement provides for the Fiscal Agent to perform
certain duties, including duties of paying agent and registrar for
the Note. This Note may be surrendered to the Fiscal Agent for
registration of transfer or exchange, as provided in the Fiscal
Agency Agreement. The Fiscal Agent shall permit reasonable
inspection to be made of a copy of the Fiscal Agency Agreement
kept on file at its corporate trust office.
From the Date of this Note until the Maturity Date, interest
at the Interest Rate shall be paid semiannually on February 1 and
August 1 of each year, commencing February 1, 1989, and at
maturity (the "Payment Dates "). Interest shall be calculated on
the basis of a 360 day year, consisting of twelve 30 -day months.
Principal and
the time of payment
the United States,
Agency Agreement.
interest shall be paid in such funds as are at
legal tender for the payment of debts due to
in the manner and as provided in the Fiscal
2
This note evidences indebtedness incurred pursuant to and in
accordance with a Contract for Loan Guarantee Assistance (the
"Contract ") dated as of , 198 and any
amendments, between the Borrower and the Secretary of Housing and
Urban Development (the "Secretary ") and pursuant to Section 108 of
the Housing and Community Development Act of 1974, as amended, 42
U.S.C. §5308 (the "HCD Act "). This Note is subject to the terms
and provisions of said Contract, to which Contract reference is
hereby made for a statement of said terms and provisions,
including a description of the collateral security for this
Note. The payment of principal and interest when and as due on
this Note in accordance with its terms is unconditionally
guaranteed by the Secretary to the holder (the "Guarantee "). The
Secretary's Guarantee shall be executed contemporaneously with
execution of this Note, and shall be issued pursuant to and in
accordance with the terms and provisions of the Contract and
Section 108 of the HCD Act.
If a payment required to be made on this Note has not been
duly received by the Fiscal Agent from either the Borrower or the
Secretary by the close of business on the second business day next
succeeding a Payment Date, pursuant to the terms of the Contract,
interest shall accrue on the amount of such payment at the
Interest Rate from such Payment Date until the date of payment to
the Fiscal Agent.
To the extent not inconsistent with applicable law, this Note
shall be subject to modification by such amendments as may be
agreed upon from time to time by the Secretary, the Borrower and
the Holder (or if the Holder is The Depository Trust Company, by
the owners of the beneficial interests in the Note).
A default under this Note shall occur upon failure by the
Borrower to pay when due principal or interest on the Note, as
provided in the Contract, unless payment is made when due by the
Secretary pursuant to the terms and provisions of the Contract.
The Borrower hereby waives notice of default and opportunity for
hearing for failure to make a payment when due.
The Secretary may declare a Borrower in default under this
Note if the Secretary makes a final decision in accordance with
the provisions of 24 C.F.R. §570.913, including requirements for
reasonable notice and opportunity for hearing, that the Borrower
has failed to comply substantially with Title I of the HCD Act.
Notwithstanding any other provision, following the giving of such
reasonable notice, the Secretary may withhold the guarantee of any
or all obligations not yet guaranteed under outstanding
commitments and request the Borrower's financial institution to
refuse to honor any instruments drawn upon, or withdrawals from
the Guaranteed Loan Funds Account or to release obligations and
assignments from the Guaranteed Loan Funds Investment Account,
pending the Secretary's final decision.
This Note is not subject to prepayment or acceleration.
The Borrower hereby waives any requirement for presentment,
protest or other demand or notice with respect to this Note.
This Note is issued, executed, and delivered on behalf of the
Borrower by its authorized official as an obligation guaranteed by
the Secretary pursuant to Section 108 of the HCD Act.
IN WITNESS WHEREOF, the undersigned, as an authorized
official of the Borrower, has executed and delivered this Note.
City of Pueblo, Colorado
BORROWER
3
ATTEST:
Name
B
Name
(Title)
Signature
(Title)
Signature
z
.s
NOTE NUMBER: B- 87 -MC -08 -0007
DATE OF THIS NOTE:
NOTE
BORROWER: City of Pueblo,
Colorado
REGISTERED
HOLDER:
PRINCIPAL
AMOUNT: $200,000
INTEREST RATE:
MATURITY DATE: August 1, 1992
CUSIP:
For value received, the undersigned, the City of Pueblo,
Colorado (the "Borrower ", which term includes any successors and
assigns), a municipal corporation organized and existing under the
laws of the State of Colorado promises to pay to the order of the
above named Registered Holder (the "Holder ", which term includes
any successors or assigns), at the time, in the manner, and with
interest at the rate hereinafter provided, the principal amount of
two hundred thousand Dollars ($ 200,000 ) on the Maturity Date.
The Note shall be delivered initially in fully registered
form to Bankers Trust Company, New York, New York as Fiscal Agent
(the "Fiscal Agent ") pursuant to the terms of the Series 1988 -A
Fiscal Agency Agreement (the "Fiscal Agency Agreement"), dated as
of June 3, 1988 between the Fiscal Agent and the Borrower. The
Fiscal Agency Agreement provides for the Fiscal Agent to perform
certain duties, including duties of paying agent and registrar for
the Note. This Note may be surrendered to the - Fiscal Agent for
registration of transfer or exchange, as provided in the Fiscal
Agency Agreement. The Fiscal Agent shall permit reasonable
inspection to be made of a copy of the Fiscal Agency Agreement
kept on file at its corporate trust office.
From the Date of this Note until the Maturity Date, interest
at the Interest Rate shall be paid semiannually on February 1 and
August 1 of each year, commencing February 1, 1989, and at
maturity (the "Payment Dates "). Interest shall be calculated on
the basis of a 360 day year, consisting of twelve 30 -day months.
Principal and interest shall be paid in such funds as are at
the time of payment legal tender for the payment of debts due to
the United States, in the manner and as provided in the Fiscal
Agency Agreement.
} 2
This note evidences indebtedness incurred pursuant to and in
accordance with a Contract for Loan Guarantee Assistance (the
"Contract ") dated as of , 198 and any
amendments, between the Borrower and the Secretary of Housing and
Urban Development (the "Secretary ") and pursuant to Section 108 of
the Housing and Community Development Act of 1974, as amended, 42
U.S.C. 15308 (the "HCD Act "). This Note is subject to the terms
and provisions of said Contract, to which Contract reference is
hereby made for a statement of said terms and provisions,
including a description of the collateral security for this
Note. The payment of principal and interest when and as due on
this Note in accordance with its terms is unconditionally
guaranteed by the Secretary to the holder (the "Guarantee "). The
Secretary's Guarantee shall be executed contemporaneously with
execution of this Note, and shall be issued pursuant to and in
accordance with the terms and provisions of the Contract and
Section 108 of the HCD Act.
If a payment required to be made on this Note has not been
duly received by the Fiscal Agent from either the Borrower or the
Secretary by the close of business on the second business day next
succeeding a Payment Date, pursuant to the terms of the Contract,
interest shall accrue on the amount of such payment at the
Interest Rate from such Payment Date until the date of payment to
the Fiscal Agent.
To the extent not inconsistent with applicable law, this Note
shall be subject to modification by such amendments as may be
agreed upon from time to time by the Secretary, the Borrower and
the Holder (or if the Holder is The Depository Trust Company, by
the owners of the beneficial interests in the Note).
A default under this Note shall occur upon failure by the
Borrower to pay when due principal or interest on the Note, as
provided in the Contract, unless payment is made when due by the
Secretary pursuant to the terms and provisions of the Contract.
The Borrower hereby waives notice of default and opportunity for
hearing for failure to make a payment when due.
The Secretary may declare a Borrower in default under this
Note if the Secretary makes a final decision in accordance with
the provisions of 24 C.F.R. 1570.913, including requirements for
reasonable notice and opportunity for hearing, that the Borrower
has failed to comply substantially with Title I of the HCD Act.
Notwithstanding any other provision, following the giving of such
reasonable notice, the Secretary may withhold the guarantee of any
or all obligations not yet guaranteed under outstanding
commitments and request the Borrower's financial institution to
refuse to honor any instruments drawn upon, or withdrawals from
the Guaranteed Loan Funds Account or to release obligations and
assignments from the Guaranteed Loan Funds Investment Account,
pending the Secretary's final decision.
3
The Borrower hereby waives any requirement for presentment,
protest or other demand or notice with respect to this Note.
This Note is issued, executed, and delivered on behalf of the
Borrower by its authorized official as an obligation guaranteed by
the Secretary pursuant to Section 108 of the HCD Act.
This Note is not subject to prepayment or acceleration.
IN WITNESS WHEREOF, the undersigned, as an authorized
official of the Borrower, has executed and delivered this Note.
ATTEST:
Name
City of Pueblo, Colorado
BORROWER
(Title)
(Title)
(Signature) (Signature)
NOTE NUMBER: B- 87 -MC -08 -0007
DATE OF THIS NOTE:
BORROWER: City of Pueblo,
Colorado
REGISTERED
HOLDER:
PRINCIPAL
AMOUNT: $220,000
INTEREST RATE:
MATURITY DATE: August 1, 1993
CUSIP:
For value received, the undersigned, the City of Pueblo,
Colorado (the "Borrower ", which term includes any successors and
assigns), a municipal corporation organized and existing under the
laws of the State of Colorado promises to pay to the order of the
above named Registered Holder (the "Holder ", which term includes
any successors or assigns), at the time, in the manner, and with
Interest at the rate hereinafter provided, the principal amount of
two hundred twenty thousand Dollars ($ 220,000 ) on the Maturity
Date.
The Note shall be delivered initially in fully registered
form to Bankers Trust Company, New York, New York as Fiscal Agent
(the "Fiscal Agent ") pursuant to the terms of the Series 1988 -A
Fiscal Agency Agreement (the "Fiscal Agency Agreement "), dated as
of June 3, 1988 between the Fiscal Agent and the Borrower. The
Fiscal Agency Agreement provides for the Fiscal Agent to perform
certain duties, including duties of paying agent and registrar for
the Note. This Note may be surrendered to the Fiscal Agent for
registration of transfer or exchange, as provided in the Fiscal
Agency Agreement. The Fiscal Agent shall permit reasonable
inspection to be made of a copy of the Fiscal Agency Agreement
kept on file at its corporate trust office.
From the Date of this Note until the Maturity Date, interest
at the Interest Rate shall be paid semiannually on February 1 and
August 1 of each year, commencing February 1, 1989, and at
maturity (the "Payment Dates "). Interest shall be calculated on
the basis of a 360 day year, consisting of twelve 30 -day months.
Principal and interest shall be paid in such funds as are at
the time of payment legal tender for the payment of debts due to
the United States, in the manner and as provided in the Fiscal
Agency Agreement.
K
This note evidences indebtedness incurred pursuant to and in
accordance with a Contract for Loan Guarantee Assistance (the
"Contract ") dated as of , 198 and any
amendments, between the Borrower and t e Secretary of Housing and
Urban Development (the "Secretary ") and pursuant to Section 108 of
the Housing and Community Development Act of 1974, as amended, 42
U.S.C. §5308 (the "HCD Act "). This Note is subject to the terms
and provisions of said Contract, to which Contract reference is
hereby made for a statement of said terms and provisions,
including a description of the collateral security for this
Note. The payment of principal and interest when and as due on
this Note in accordance with its terms is unconditionally
guaranteed by the Secretary to the holder (the "Guarantee "). The
Secretary's Guarantee shall be executed contemporaneously with
execution of this Note, and shall be issued pursuant to and in
accordance with the terms and provisions of the Contract and
Section 108 of the HCD Act.
If a payment required to be made on this Note has not been
duly received by the Fiscal Agent from either the Borrower or the
Secretary by the close of business on the second business day next
succeeding a Payment Date, pursuant to the terms of the Contract,
interest shall accrue on the amount of such payment at the
Interest Rate from such Payment Date until the date of payment to
the Fiscal Agent.
To the extent not inconsistent with applicable law, this Note
shall be subject to modification by such amendments as may be
agreed upon from time to time by the Secretary, the Borrower and
the Holder (or if the Holder is The Depository Trust Company, by
the owners of the beneficial interests in the Note).
A default under this Note shall occur upon failure by the
Borrower to pay when due principal or interest on the Note, as
provided in the Contract, unless payment is made when due by the
Secretary pursuant to the terms and provisions of the Contract.
The Borrower hereby waives notice of default and opportunity for
hearing for failure to make a payment when due.
The Secretary may declare a Borrower in default under this
Note if the Secretary makes a final decision in accordance with
the provisions of 24 C.F.R. §570.913, including requirements for
reasonable notice and opportunity for hearing, that the Borrower
has failed to comply substantially with Title I of the HCD Act.
Notwithstanding any other provision, following the giving of such
reasonable notice, the Secretary may withhold the guarantee of any
or all obligations not yet guaranteed under outstanding
commitments and request the Borrower's financial institution to
refuse to honor any instruments drawn upon, or withdrawals from
the Guaranteed Loan Funds Account or to release obligations and
assignments from the Guaranteed Loan Funds Investment Account,
pending the Secretary's final decision.
3
The Borrower hereby waives any requirement for presentment,
protest or other demand or notice with respect to this Note.
This Note is issued, executed, and delivered on behalf of the
Borrower by its authorized official as an obligation guaranteed by
the Secretary pursuant to Section 108 of the HCD Act.
This Note is not subject to prepayment or acceleration.
IN WITNESS WHEREOF, the undersigned, as an authorized
official of the Borrower, has executed and delivered this Note.
ATTEST:
Name
City of Pueblo, Colorado
BORROWER
BY:
2-7 Name
(Title)
(Title)
Signature (Signature)
NOTE NUMBER: B- 87 -MC -08 -0007
DATE OF THIS NOTE:
NOTE
BORROWER: City.of Pueblo,
Colorado
REGISTERED
HOLDER:
PRINCIPAL
AMOUNT: $245,000
INTEREST RATE:
MATURITY DATE: August 1, 1994
CUSIP.
For value received, the undersigned, the City of Pueblo,
Colorado (the "Borrower ", which term includes any successors and
assigns), a municipal corporation organized and existing under the
laws of the State of Colorado promises to pay to the order of the
above named Registered Holder (the "Holder ", which term includes
any successors or assigns), at the time, in the manner, and with
interest at the rate hereinafter provided, the principal amount of
two hundred forty five thousand Dollars ($ 245,000 ) on the Maturity
Date.
The Note shall be delivered initially in fully registered
form to Bankers Trust Company, New York, New York as Fiscal Agent
(the "Fiscal Agent ") pursuant to the terms of the Series 1988 -A
Fiscal Agency Agreement (the "Fiscal Agency Agreement "), dated as
of June 3, 1988 between the Fiscal Agent and the Borrower. The
Fiscal Agency Agreement provides for the Fiscal Agent to perform
certain duties, including duties of paying agent and registrar for
the Note. This Note may be surrendered to the Fiscal Agent for
registration of transfer or exchange, as provided in the Fiscal
Agency Agreement. The Fiscal Agent shall permit reasonable
Inspection to be made of a copy of the Fiscal Agency Agreement
kept on file at its corporate trust office.
From the Date of this Note until the Maturity Date, interest
at the Interest Rate shall be paid semiannually on February 1 and
August 1 of each year, commencing February 1, 1989, and at
maturity (the "Payment Dates "). Interest shall be calculated on
the basis of a 360 day year, consisting of twelve 30 -day months.
Principal and interest shall be paid in such funds as are at
the time of payment legal tender for the payment of debts due to
the United States, in the manner and as provided in the Fiscal
Agency Agreement.
2
This note evidences indebtedness incurred pursuant to and in
accordance with a Contract for Loan Guarantee Assistance (the
"Contract ") dated as of , 198 and any
amendments, between the Borrower and the Secretary of Housing and
Urban Development (the "Secretary ") and pursuant to Section 108 of
the Housing and Community Development Act of 1974, as amended, 42
U.S.C. $5308 (the "HCD Act "). This Note is subject to the terms
and provisions of said Contract, to which Contract reference is
hereby made for a statement of said terms and provisions,
including a description of the collateral security for this
Note. The payment of principal and interest when and as due on
this Note in accordance with its terms is unconditionally
guaranteed by the Secretary to the holder (the "Guarantee "). The
Secretary's Guarantee shall be executed contemporaneously with
execution of this Note, and shall be issued pursuant to and in
accordance with the terms and provisions of the Contract and
Section 108 of the HCD Act.
If a payment required to be made on this Note has not been
duly received by the Fiscal Agent from either the Borrower or the
Secretary by the close of business on the second business day next
succeeding a Payment Date, pursuant to the terms of the Contract,
interest shall accrue on the amount of such payment at the
Interest Rate from such Payment Date until the date of payment to
the Fiscal Agent.
To the extent not inconsistent with applicable law, this Note
shall be subject to modification by such amendments as may be
agreed upon from time to time by the Secretary, the Borrower and
the Holder (or if the Holder is The Depository Trust Company, by
the owners of the beneficial interests in the Note).
A default under this Note shall occur upon failure by the
Borrower to pay when due principal or interest on the Note, as
provided in the Contract, unless payment is made when due by the
Secretary pursuant to the terms and provisions of the Contract.
The Borrower hereby waives notice of default and opportunity for
hearing for failure to make a payment when due.
The Secretary may declare a Borrower in default under this
Note if the Secretary makes a final decision in accordance with
the provisions of 24 C.F.R. 1570.913, including requirements for
reasonable notice and opportunity for hearing, that the Borrower
has failed to comply substantially with Title I of the HCD Act.
Notwithstanding any other provision, following the giving of such
reasonable notice, the Secretary may withhold the guarantee of any
or all obligations not yet guaranteed under outstanding
commitments and request the Borrower's financial institution to
refuse to honor any instruments drawn upon, or withdrawals from
the Guaranteed Loan Funds Account or to release, obligations and
assignments from the Guaranteed Loan Funds Investment Account,
pending the Secretary's final decision.
3
The Borrower hereby waives any requirement for presentment,
protest or other demand or notice with respect to this Note.
This Note is issued, executed, and delivered on behalf of the
Borrower by its authorized official as an obligation guaranteed by
the Secretary pursuant to Section 108 of the HCD Act.
This Note is not subject to prepayment or acceleration.
IN WITNESS WHEREOF, the undersigned, as an authorized
official of the Borrower, has executed and delivered this Note.
ATTEST:
Name
City of Pueblo, Colorado
BORROWER
VAI
sueSo _/ �..� VA
( Title )
( Titl e )
Signature Signature
MASTER
FISCAL AGENCY AGREEMENT
among
the
BORROWERS
and
BANKERS TRUST COMPANY,
as Fiscal Agent
TABLE OF CONTENTS
ARTICLE I: DEFINITIONS
Section
Page
Definitions .............. ............................... 1
ARTICLE II: DELIVERY AND REGISTRATION OF NOTES
2.01 Details of the Notes .. ............................... 6
2.02 Acceptance by Fiscal Agent ........................... 6
2.03 Authorization Order ... ............................... 7
ARTICLE III: ADMINISTRATION OF NOTES
3.01 Modification of Notes . ............................... 9
3.02 Fixing of Record Date . ............................... 10
3.03 Collection on the Guarantees ....................... 10
3.04 Collection of Payments; Note Account .............. .. ... 10
3.05 Defeasance Account....... ........................ 11
3.06 Fiscal Agent to Act as Paying Agent .................. 13
3.07 Permitted Charges Against the Note Account........... 14
3.08 Fiscal Agent to Cooperate; Release of.Notes.......... 15
3.09 Replacement Notes ..... ............................... 16
ARTICLE IV: PAYMENTS
4 .01 Payments .............. ............................... 17
ARTICLE V: REGISTRATION OF NOTES
5.01 Registration of Transfers and Exchanges of Notes..... 19
5.02 Persons Deemed Holders ............................... 20
5.03 Maintenance of Office or Agency ...................... 21
ARTICLE VI: RIGHTS AND DUTIES OF THE BORROWER
6.01
Compensation and Indemnification of the
Fiscal Agent ........ ...............................
21
ARTICLE VII: RIGHTS AND DUTIES OF THE FISCAL AGENT
7.01
Duties of the Fiscal Agent ...........................
23
7.02
Certain Matters Affecting the Fiscal Agent...........
25
7.03
Fiscal Agent not Liable for Notes ....................
26
7.04
Eligibility Requirements for Fiscal Agent............
26
7.05
Resignation and Removal of the Fiscal Agent..........
27
7.06
Merger or Consolidation of Fiscal Agent ..............
29
7.07
Fiscal Agent May Own Notes ...........................
30
(i)
7.08
Fidelity Bond or Insurance ...........................
30
ARTICLE VIII: TERMINATION
8 .01
Termination ........... ...............................
31
ARTICLE IX: MISCELLANEOUS PROVISIONS
9 .01
Amendment ............... .... ......................
32
9.02
Inspection of Documents by Holders ...................
33
9 .03
Governing Law ......... ...............................
33
9 .04
Notices .............................................
33
9.05
Severability of Provisions ...........................
34
9 .06
Counterparts .......... ...............................
34
Exhibit
A Form of Authorization Order ....................
A -1
Exhibit
B DTC Letter to Fiscal Agent .....................
B -1
Exhibit
C Letter of Representations from the
Fiscal Agent to DTC ..........................
C -1
(ii)
MASTER
FISCAL AGENCY AGREEMENT
This FISCAL AGENCY AGREEMENT (the "Agreement ") is made and
entered into by and among the Borrowers, as hereinafter defined,
(the "Borrowers ") and Bankers Trust Company, a New York banking
corporation, as Fiscal Agent (the "Fiscal Agent ").
In consideration of the premises and of the mutual
agreements herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the
following meanings:
Act The Housing and Community Development Act of 1974, as
amended, 42 U.S.C. §5301 et seq.
Agreement This Fiscal Agency Agreement and all amendments
and supplements hereto.
Authorization Order The written order of the Secretary
delivered to the Fiscal Agent pursuant to Section 2.03 hereto, in
substantially the form set forth in Exhibit A hereto.
Authorized Officer When used with respect to the Fiscal
Agent, any officer of the Fiscal Agent who at the time shall have
been designated to act on behalf of the Fiscal Agent by a written
certificate furnished to the Secretary containing the specimen
signature of such person and signed on behalf of the Fiscal Agent
by one of the above.
Authorized Official
When used with respect to the United
States Department of Housing and Urban Development, the
Secretary, and any other official of such department who at the
time shall have been duly authorized to act on behalf of the
Secretary.
Beneficial Owners
The actual purchasers of the Notes whose
ownership interests therein will be recorded through the book-
entry system of DTC.
Borrowers Units of general local government, or public
agencies designated by such units, which have issued debt
obligations guaranteed by the Secretary pursuant to Section 108.
Business Day A day on which banking institutions in New
York City are not required or authorized to remain closed and on
which the New York Stock Exchange is not closed.
Cede & Co. The nominee of DTC.
Contract Any Contract for Loan Guarantee Assistance
entered into between a Borrower and the Secretary providing for
the issuance of Notes and their related Guarantees by the
Borrower and the Secretary, respectively.
Corporate Trust Office The principal office of the Fiscal
Agent in the State of New York at which, at any particular time,
its duties with respect to this Agreement shall be administered,
-2-
which office at the date of the execution of this Agreement is
located at 4 Albany Street, New York, New York 10015,
Attention: Public Debt Services.
DTC The Depository Trust Company, a securities depository
for the Notes and their related Guarantees or its nominee.
Date of Note The date of note stated on any Note, which
shall be the date on which the Note and its related Guarantee are
delivered initially to the Holders.
Defeasance Account With respect to any Note, any account
created and maintained pursuant to Section 3.05.
Default A default by a Borrower under the terms of its
Note.
Director, Financial Management Division The Director of
the Financial Management Division, Office of the Assistant
Secretary for Community Planning and Development, U.S. Department
of Housing and Urban Development, and any other official of such
department who at the time shall have been duly authorized to act
on behalf of such Director.
Fee Account With respect to any Note, any account created
and maintained pursuant to Section 6.01.
Fiscal Agent Bankers Trust Company, a New York banking
corporation, or its successor in interest, or any successor
fiscal agent appointed as herein provided.
-3-
Government Obligation A direct obligation of, or any
obligation for which the full and timely payment of principal and
interest is guaranteed by, the United States of America,
including but not limited to, United States Treasury Certificates
of Indebtedness, Notes and Bonds - State and Local Government
Series, or certificates of ownership of the principal of or
interest on direct obligations of, or obligations unconditionally
guaranteed by, the United States of America, which obligations
are held in trust by a commercial bank which is a member of the
Federal Reserve System and has capital and surplus (exclusive of
undivided profits) in excess of $100,000,000.
Guarantee With respect to any Note, the related Guarantee
made by the Secretary pursuant to Section 108 by which the
Secretary guarantees the timely payment of the principal of and
interest on such Note.
Guarantee Payment Any payment made by the Secretary
pursuant to a Guarantee.
Holder The Person in whose name a Note is registered in
the Note Register.
Letter of Representations The letter from the Fiscal Agent
to be furnished to DTC in accordance with Section 7.01 herein, in
substantially the form set forth in Exhibit C hereto.
Maturity Date The stated maturity date of a Note, and with
respect to any Notes called for redemption prior to maturity, the
date on which such notes are redeemed.
-4-
Note Any note issued by a Borrower and guaranteed by the
Secretary pursuant to Section 108.
Note Account With respect to any Note, the account created
and maintained pursuant to Section 3.04.
Note Register The Register maintained by the Fiscal Agent
pursuant to Section 5.01.
Opinion of Counsel A written opinion of counsel for the
Secretary, who may be, but does not have to be, an employee of
the Department of Housing and Urban Development.
Payment Date With respect to a Note, each February 1 and
August 1 on which interest or principal is due and payable, or if
such Payment Date is not a Business Day, the next succeeding
Business Day.
Person Any individual, corporation, partnership, joint
venture, association, joint -stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
Principal Amount The principal amount stated on the face
of a Note.
Record Date With respect to any Note, the close of
business on the fifteenth calendar day of the month next
preceding the month in which a Payment Date occurs.
Secretary The Secretary of Housing and Urban Development.
Sect ion 108: Section 108 of Title 1 of the Act.
-5-
Underwriters Shall initially be the following: Salomon
Brothers Inc, Smith Barney, Harris Upham & Co. Incorporated, and
Citicorp Investment Bank /Citibank, N.A., and thereafter shall be
the same, unless with respect to any series of Notes, any
different underwriters are identified in the Authorization Order
from the Secretary to the Fiscal Agent with respect to such
series.
ARTICLE II
DELIVERY AND REGISTRATION OF NOTES
SECTION 2.01 Details of the Notes From time to time
following the execution and delivery hereof, the Borrowers will
deliver or cause to be delivered to the Fiscal Agent, certain
Notes and their related Guarantees. No later than two (2)
Business Days before the time of any delivery of Notes to
Holders, the Secretary shall deliver to the Fiscal Agent the
Notes of each Borrower. Each Borrower's Notes shall be in the
form of a separate single fully registered note in the amount of
each separate stated maturity of the Notes. On the date of
original delivery thereof to the Fiscal Agent, the Notes shall be
registered in the registry books of the Fiscal Agent pursuant to
instructions to be furnished by the Underwriters to the Fiscal
Agent at least two (2) Business Days before the date of delivery
to the Holders. The Borrower authorizes the Secretary to list
such Notes in the Authorization Order delivered by the Secretary
MM
pursuant to Section 2.03. The Fiscal Agent shall have no
responsibility in respect of the authorizations of the Borrower
hereunder or with respect to the information supplied by the
Secretary in the Authorization Order from the Secretary pursuant
to Section 2.03. Each Borrower does hereby designate and appoint
the Fiscal Agent as the paying agent and registrar of all of such
Borrower's Notes.
SECTION 2.02. Acceptance by Fiscal Agent Upon its receipt
of the Notes and their related Guarantees, the Fiscal Agent will
acknowledge receipt of such Notes and related Guarantees
delivered by the Secretary to the Fiscal Agent, as paying agent
and registrar as set forth in Section 2.01 above, and will
immediately deliver such Notes and related Guarantees to the
Holders in accordance with the terms and conditions of this
Agreement.
SECTION 2.03. Authorization Order The Fiscal Agent agrees
that concurrently with its receipt of the Notes and their related
Guarantees from the Secretary on behalf of the Borrowers, and
upon receipt of an Authorization Order from the Secretary and
such Opinion of Counsel and other documents as the Fiscal Agent
may reasonably request, the Fiscal Agent will register and
deliver the Notes and their related Guarantees in accordance
with, and upon the direction of, the Secretary as specified in
such Authorization Order.
-7-
Not less than two (2) Business Days (or such shorter period
as the Secretary and the Fiscal Agent shall agree upon) before
the time of any delivery of any Notes to Holders under this
Agreement, the Secretary shall deliver an Authorization Order
substantially in the form of Exhibit A hereto, directing the
Fiscal Agent to register the Notes and deliver the Notes and
their related Guarantees in accordance with the terms set forth
therein.
Each such order shall set forth:
(a) the designation of the series of Notes;
(b) the name of the issue;
(c) the dates on which interest payments are due;
(d) the interest rates and Maturity Dates of the Notes;
(e) the principal amount and maturity of the Notes of
each Borrower which the Secretary has authorized for delivery
to the Fiscal Agent, for registration and subsequent delivery
to the registered Holder;
(f) whether the
to be physically held
DTC and the date such
(g) whether the
acceleration prior to
terms and conditions
acceleration; and
Notes and their related Guarantees are
by the Fiscal Agent or transferred to
delivery or transfer is to occur;
Notes are subject to redemption or
their Maturity Dates and if so, the
relating to any redemption or
ME-110
(h) any additional directions from the Secretary
regarding the public offering of the Notes.
ARTICLE III
ADMINISTRATION OF NOTES
SECTION 3.01. Modification of Notes Any term of any Note
may be modified by such amendments as may be agreed upon from
time to time by the Secretary and the Holder (or if the Holder is
DTC, by the Beneficial Owners of such Note) and the Borrower.
Within fifteen (15) days after receipt by the Fiscal Agent at its
Corporate Trust Office of notice from the Secretary of any
meeting or other occasion for the giving of consent by a Holder,
the Fiscal Agent shall give notice to such Holder, which notice
shall contain (a) such information as is contained in the notice
received by the Fiscal Agent, (b) a statement that such Holder at
the close of business on the record date specified in accordance
with Section 3.02 hereof will be entitled, subject to any
applicable provisions of law and any applicable provisions of or
governing such Notes, to consent to the proposed change in the
terms of such Holder's Note. No such change in the terms of any
Note shall alter or affect the Secretary's guarantee of timely
payment of all principal and interest on such Note.
SECTION 3.02. Fixing of Record Date Whenever the Fiscal
Agent is required to give notice pursuant to Section 3.01, the
Fiscal Agent shall Fix the Record Date (which shall be five (5)
days after receipt of notice thereof from the Secretary (or if
such day is not a Business Day then the next succeeding Business
Day)) for the determination of the Holders who shall be entitled
to receive such notice. Only such Holders at the close of
business on such record date shall be entitled to receive any
such notice.
SECTION 3.03. Collection on the Guarantees Pursuant to
each Guarantee, the Secretary will unconditionally guarantee the
payment of all principal and interest on the Note to which such
Guarantee relates when and as due in accordance with the terms of
the Notes. Pursuant to the request of DTC, in substantially the
form set forth in Exhibit B hereto, the Fiscal Agent hereby
agrees to serve as DTC's agent solely for the purpose of
collecting payment on any Guarantee while DTC or its nominee is
the Holder of the corresponding Note.
SECTION 3.04. Collection of Payments; Note Account For
each of its Notes, the Borrower shall establish and maintain with
the Fiscal Agent a separate non - interest bearing trust account (a
"Note Account ") into which the Fiscal Agent shall deposit the
following:
(a) All regular interest payments on such Note, including
those made by the Borrower, those made with funds transferred
by the Fiscal Agent from the Defeasance Account to the Note
Account, and those made by the Secretary pursuant to a
Guarantee; and
-10-
(b) All principal payments on such Note at its Maturity
Date, including those made by the Borrower, those made with
funds transferred by the Fiscal Agent from the Defeasance
Account to the Note Account, and those made by the Secretary
pursuant to a Guarantee.
Guarantee Payments made by the Secretary in accordance
with the terms of Section 3.06 herein shall be deposited by
the Fiscal Agent in the applicable Note Account. The moneys
held as part of a Note Account shall be held in trust for the
benefit of the Holder of the corresponding Note and shall be
applied by the Fiscal Agent in accordance with the provisions
of Section 3.07 herein.
SECTION 3.05. Defeasance Account For each of its
Notes which a Borrower elects to defease, the Borrower shall
establish and maintain with the Fiscal Agent a trust account
(a "Defeasance Account "), separate and apart from all other
accounts of the Borrower and the Fiscal Agent. The Borrower
shall irrevocably deposit in such account either moneys or
Government Obligations, which in the sole determination of
the Secretary, mature and bear interest at times and in
amounts sufficient, together with the moneys already on
deposit with the Fiscal Agent for such purpose, to pay when
due the principal and interest to become due on the Notes.
The moneys and any investments held as part of a Defeasance
Account shall be held in trust for the benefit of the
-11-
corresponding Holder and shall be applied by the Fiscal Agent
solely to the payment of principal of and interest on the
related Note. All of the Borrower's Notes or all of the
Borrower's Notes of any maturity may be defeased as provided
herein. The Borrower's election to defease any Note shall
not result in the payment of interest before the applicable
due date or of principal before the Maturity Date.
Upon and in accordance with the Secretary's instructions
pursuant to the corresponding Contract, the Fiscal Agent
shall apply so much of the sums deposited in a Defeasance
Account as shall be necessary to purchase the Government
Obligations designated by the Secretary's instructions. The
Fiscal Agent shall collect on the due dates thereof the
principal of and interest and premium, if any, on the
Government Obligations on deposit in the Defeasance Account
and shall, without further authorization or direction, apply
such receipts on each Payment Date to the payment of interest
and principal then due. At the opening of business on the
relevant Payment Date, the Fiscal Agent shall transfer from
the Defeasance Account to the Note Account the amount of
interest and principal to be paid.
Receipts in excess of the amount necessary to make the
payments on each Payment Date shall be reinvested by the
Fiscal Agent in Government Obligations maturing on or before
the next Payment Date. The Fiscal Agent shall collect on the
-12-
due dates thereof the principal of and interest and premium,
if any, on such Government Obligations, and shall, without
further authorization or direction, apply such receipts to
the payment of interest and principal on the next Payment
Date. Amounts under $5,000 which cannot be invested in such
obligations on any Payment Date may be held uninvested.
SECTION 3.06. Fiscal Agent to Act as Paying Agent
The Fiscal Agent shall receive the payments due on the Notes
and deposit such payments in the Note Accounts as provided in
Sections 3.04 and 3.05. The Borrower shall make payments
directly to the Fiscal Agent by 3:00 P.M. (New York City
time) on the fifth Business Day next preceding the relevant
Payment Date. No later than 1:00 P.M. (New York City time)
on the fourth Business Day next preceding each Payment Date,
the Fiscal Agent shall determine whether all payments
required to be made on the Notes have been duly received from
each Borrower. If such payments have not been received, the
Fiscal Agent shall notify the Secretary by a telephone call
to the Director, Financial Management Division, confirmed in
writing by telex or telecopy, that the Secretary may be
required to make a Guarantee Payment, and shall provide
notice of the amount of such payment. If a payment required
to be made by a Borrower on a Note has not been duly received
by the Fiscal Agent by the close of business on the Payment
Date, no later than 10:00 A.M. (New York City time) on the
-13-
Business Day next succeeding the relevant Payment Date, the
Fiscal Agent shall notify the Secretary, by a telephone call
to the Director, Financial Management Division, confirmed in
writing by telex or telecopy, that the Secretary is required
to make a Guarantee Payment and shall provide notice of the
amount of such payment. The Secretary shall make any
required Guarantee Payment by wire transfer to the Fiscal
Agent in immediately available funds, for subsequent payment
by the Fiscal Agent to the Holder in accordance with the
terms of Section 4.01 herein. If a payment required to be
made on a Note has not been duly received from either the
Borrower or the Secretary by the close of business on the
second Business Day next succeeding the Payment Date,
pursuant to the terms of the Borrower's Contract, interest
shall accrue on the amount of such payment at the stated rate
from the applicable Payment Date until the date of payment to
the Fiscal Agent.
SECTION 3.07. Permitted Charges Against the Note
Account The Fiscal Agent shall, from time to time, withdraw
funds from a Note Account for the following purposes:
(a) to make payments to the Holders in the amounts and
in the manner provided for in Section 4.01;
(b) to reimburse the Secretary for a Guarantee Payment
made with respect to the Note to which such Note Account
relates, provided that such reimbursement shall be limited to
-14-
amounts received by the Fiscal Agent which represent late
recoveries of payments of principal and /or interest
respecting which any Guarantee Payment was made; and
(c) to clear and terminate the Account pursuant to
Section 8.01.
SECTION 3.08. Fiscal Agent to Cooperate; Release of
Notes Upon payment in full to the Holder of any Note (including
pursuant to the related Guarantee), the Fiscal Agent shall
release the Note to the Secretary.
SECTION 3.09. Replacement Notes In the event that the
Fiscal Agent is given notice that DTC has determined to
discontinue providing its service as securities depository with
respect to the Notes and their related Guarantees, the Fiscal
Agent shall arrange for another qualified securities depository
to maintain custody of the Notes and their related Guarantees.
If the Fiscal Agent fails to identify another qualified
securities depository, the Fiscal Agent and the Borrowers will
take appropriate action to deliver fully registered Notes to the
Beneficial Owners of the Notes.
In the event the Secretary and all of the Borrowers
determine that continuation of the system of book -entry transfers
through DTC is not in the best interests of the Beneficial Owners
and so advise the Fiscal Agent, the Fiscal Agent will discontinue
the book -entry system with DTC. If the Fiscal Agent fails to
identify another qualified securities depository to replace DTC,
-15-
the Fiscal Agent and the Borrowers will take appropriate action
to deliver fully registered Notes to the Beneficial Owners of the
Notes.
If (i) any mutilated Note is surrendered to the Fiscal
Agent, or the Fiscal Agent receives evidence to its satisfaction
of the destruction, loss or theft of any Note, and (ii) there is
delivered to the Fiscal Agent such security or indemnity as may
be required by it to hold it harmless, then, in the absence of
notice to the Fiscal Agent that such Note has been acquired by a
bona fide purchaser and upon the Holder paying reasonable
expenses of the Fiscal Agent, the Borrower shall execute and the
Fiscal Agent shall deliver, in exchange for such mutilated Note
or in lieu of such destroyed, lost or stolen Note, a new Note of
like principal amount or appreciated Principal Amount, as
appropriate, date and tenor. If any such mutilated, destroyed,
lost or stolen Note has become or will on or before the next Note
Payment Date become due and payable, the Fiscal Agent may, in its
discretion, pay such Note when due instead of delivering a new
Note.
ARTICLE IV
PAYMENTS
SECTION 4.01. Payments On each Payment Date relating to a
particular Note, the Fiscal Agent, as paying agent for the
Borrower, shall pay to the corresponding Holder determined as of
-16-
the close of business on the next preceding Record Date (other
than as provided in Section 8.01 respecting the final payment)
all amounts credited to the Note Account relating to such Note as
of 10:00 A.M. (New York City Time) on the applicable Payment
Date, other than amounts, if any, which represent late recoveries
of principal and /or interest respecting which any Guarantee
Payment was made. Upon presentation and surrender of a Note at
maturity, the Principal Amount is payable by check in
clearinghouse funds at the Corporate Trust Office of the Fiscal
Agent. Interest payments on the Notes shall be made by the
Fiscal Agent by mailing checks in clearinghouse funds payable to
the registered Holders thereof as the same shall appear in the
Note Register on the relevant Record Date or, if the Holder
receiving such payment holds Notes evidencing in the aggregate
ownership of not less than $1,000,000 of Notes, by wire transfer
to such commercial bank located in the continental United States
having appropriate facilities therefor as such Holder may
designate in writing to the Fiscal Agent (provided that the
Holder shall have given the Fiscal Agent appropriate written wire
transfer instructions not later than the Record Date with respect
to such payment). (If the Holder of a Note is DTC, interest and
principal payments shall be paid by the Fiscal Agent to CEDE &
CO., as nominee of DTC, or its registered assigns in New York
clearinghouse funds on each Payment Date. Interest and principal
and interest shall be made payable to the order of "CEDE & CO."
-17-
and shall be made by the Fiscal Agent by check or wire transfer
to DTC at its address as the same shall appear in the Note
Register).
ARTICLE V
REGISTRATION OF NOTES
SECTION 5.01. Registration of Transfers and Exchanges of
Notes The Fiscal Agent shall be the registrar of the Notes for
the purposes of registering the Notes and maintaining a record of
any transfers and exchanges of Notes as herein provided. The
Fiscal Agent shall cause to be kept at the office to be
maintained in accordance with the provisions of Section 5.03
hereof, a Note Register in which it shall record for each Note,
the name and address of the registered Holder, the Principal
Amount and Maturity Date thereof and such other information as
may be required by applicable law or regulation.
Registration of transfer shall be subject to such reasonable
regulations as the Fiscal Agent may prescribe. No registration
of transfer or exchange of any Note may be made unless all
information required to be provided by the Holder has been given
as provided in the form of Note. Upon surrender for registration
of transfer of any Note at the office which the Fiscal Agent
maintains for such purpose pursuant to Section 5.03, the Fiscal
Agent shall execute and deliver, or cause the Borrower to execute
and deliver in the name of the designated transferee or
transferees, one or more new Notes of like aggregate Principal
Amount.
At the option of the Holder, a Note may be exchanged for
Notes of like aggregate Principal Amount, upon surrender at the
office which the Fiscal Agent maintains for such purpose pursuant
to Section 5.03.
Every Note presented or surrendered for registration of
transfer or for exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer or authorization
for exchange in form satisfactory to the Fiscal Agent duly
executed by, the Holder thereof or by its attorney duly
authorized in writing.
Exchanges and transfers will be without charge to the Person
presenting the Note for transfer or exchange, except that the
Fiscal Agent may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with
any transfer or exchange of a Note.
All Notes surrendered for registration of transfer or
exchange shall be cancelled by the Fiscal Agent in accordance
with its standard procedures. All such cancelled Notes shall be
forwarded to the Secretary by the Fiscal Agent from time to time.
SECTION 5.02. Persons Deemed Holders Prior to due
.presentation of a Note for registration of transfer, the
Borrower, the Secretary, the Fiscal Agent and any of their agents
may treat the Person in whose name any Note is registered as the
-19-
holder of such Note for the purpose of receiving payments
pursuant to Section 4.01 hereof and for all other purposes
whatsoever. Neither the Borrower, the Secretary, the Fiscal
Agent nor any of their agents shall be affected by notice to the
contrary.
SECTION 5.03. Maintenance of Office or Agency The Fiscal
Agent shall maintain a designated office or agency where Notes
may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Borrower or the Fiscal
Agent in respect of the Notes and this Agreement may be served.
The Fiscal Agent designates its Corporate Trust Office as such
office for said purposes.
ARTICLE VI
RIGHTS AND DUTIES OF THE BORROWER
SECTION 6.01. Compensation and Indemnification of the
Fiscal Agent The Borrower agrees to pay the Fiscal Agent an
initial fee as reasonable compensation for all services to be
rendered by it hereunder and as payment or reimbursement for all
reasonable expenses and disbursements to be incurred by the
Fiscal Agent in connection with the Agreement. The Fiscal Agent
shall deposit such fee in a Fee Account separate and apart from
all other accounts of the Borrower and the Fiscal Agent. On an
annual basis, commencing on the date the Notes are delivered
initially to the Holders, the Fiscal Agent will deduct from each
X3110
Fee Account the compensation due hereunder for such year. The
Borrower hereby acknowledges that upon its failure to pay the
Fiscal Agent the compensation due hereunder, the Secretary may
pay such fee on behalf of such Borrower, which payment may be
satisfied out of grants pledged by the Borrower to the Secretary
as security for repayment of the Notes pursuant to the
Contract. The Borrower also covenants to indemnify the Fiscal
Agent against, and to defend and to hold it harmless from any
liabilities and any related out -of- pocket expenses (including,
without limitation, fees and expenses of legal counsel) which it
may incur in connection with this Agreement or the Notes, other
than any liabilities and expenses arising out of the Fiscal
Agent's bad faith, willful misconduct or gross negligence. The
obligations of the Borrower to compensate and indemnify the
Fiscal Agent shall constitute indebtedness hereunder and shall
survive the satisfaction and discharge of this Agreement.
The Borrowers will pay all out -of- pocket expenses, including
fees and disbursements of counsel incurred by the Fiscal Agent in
the performance of its duties hereunder, provided, however, that
(a) the Fiscal Agent shall in no event acquire any lien upon any
Notes administered pursuant to this Agreement, or any moneys
received with respect thereto, or any claim against the Holders
of the Notes, by reason of the failure of the Borrower to pay any
of such charges or expenses, and (b) the Borrower shall not be
-21-
required to pay any out -of- pocket expenses incurred by the Fiscal
Agent to the extent that the expenses are chargeable under
Section 5.01 hereof to persons requesting the transfer or
exchange of Notes.
ARTICLE VII
RIGHTS AND DUTIES OF THE FISCAL AGENT
SECTION 7.01. Duties of the Fiscal Agent The Fiscal Agent
undertakes to perform only such duties as are specifically set
forth in this Agreement. With respect to each Note and the
related Guarantee which are delivered to the Fiscal Agent, the
Fiscal Agent shall act as paying agent and registrar for the
Notes. Except upon compliance with the provisions of Sections
2.03 or 3.08, none of the Notes, their related Guarantees or any
other related instruments or documents shall be delivered by the
Fiscal Agent to the Holders or to the Secretary, or otherwise
released from the possession of the Fiscal Agent.
The Borrowers hereby appoint the Fiscal Agent to act as
their agent in executing the Letter of Representations to be
delivered to DTC, in substantially the form set forth in
Exhibit C hereto.
No provision of this Agreement shall be construed to relieve
the Fiscal Agent from liability for its bad faith, willful
misconduct or gross negligence; provided however that:
(a) The duties and obligations of the Fiscal Agent
shall be determined solely by the express provisions of this
-22-
Agreement, the Fiscal Agent shall not be liable except for
gross negligence or willful misconduct in the performance of
such duties and obligations as are specifically set forth in
this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Fiscal Agent and, in the
absence of bad faith on the part of the Fiscal Agent, the
Fiscal Agent may conclusively rely, as to the truth and
accuracy of the statements and contents and the correctness
of the opinions expressed therein, upon any certificates,
opinions, resolutions, statements, reports, documents, orders
or other instruments furnished to the Fiscal Agent and
conforming to the requirements of this Agreement; and
(b) The Fiscal Agent shall not be personally liable for
an error of judgment made in good faith by an Authorized
Officer or Authorized Officers of the Fiscal Agent, unless it
shall be proved that the Fiscal Agent was grossly negligent
in ascertaining the pertinent facts.
SECTION 7.02. Certain Matters Affecting the Fiscal
Agent Except as otherwise provided in Section 7.01:
(a) The Fiscal Agent may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate of an Authorized Official, certificate of
auditors or any other certificate, statement, instrument,
opinion (including an oral opinion or advice of counsel),
report, notice, request, consent, order, appraisal, bond or
-23-
other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) The Fiscal Agent may consult with counsel and any
opinion of such counsel, whether oral or written, shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such opinion of counsel, and the
Fiscal Agent shall not be required to take any action in
violation of law or any action which would, in its reasonable
determination, expose it to any fine or penalty imposed by
law;
(c) The Fiscal Agent shall not be personally liable for
any action taken, suffered or omitted to be taken by it in
good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Agreement;
(d) The Fiscal Agent may exercise any of the powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Fiscal Agent shall
not be responsible for any misconduct or negligence on the
part of any agent, attorney or securities depository
appointed with due care by it; and
(e) The Fiscal Agent shall not be obligated to make any
investigation into the facts or matters stated in any reso-
lution, certificate, statement, instrument, opinion, report,
notice, consent, order, approval or other paper or document.
-24-
SECTION 7.03. Fiscal Agent Not Liable for Notes The
recitals contained herein and in the Notes shall be taken as
statements of the Borrower, and the Fiscal Agent assumes no
responsibility for the correctness of the same. The Fiscal Agent
makes no representations as to the validity or sufficiency of
this Agreement or of any Note, Guarantee or related document and
shall not be held liable for any defect in any portion thereof.
The Fiscal Agent shall not be accountable for the use or
application by the Secretary or the Borrower of any of the Notes
or of the proceeds of such Notes.
SECTION 7.04. Eligibility Requirements for Fiscal Agent
The Fiscal Agent hereunder shall at all times be a corporation
having its principal office in the State of New York and
organized and doing business under the laws of such State of the
United States of America, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by
Federal or State authority. If such corporation publishes
reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and
the surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Fiscal
Agent shall cease to be eligible in accordance with the
-25-
provisions of this Section, the Fiscal Agent shall resign
immediately in the manner and with the effect specified in
Section 7.05.
SECTION 7.05. Resignation and Removal of the Fiscal
Agent Subject to the further provisions of this Section 7.05,
the Fiscal Agent may resign at any time and be discharged from
its duties as the Fiscal Agent hereunder by giving at least 60
days' prior written notice of such resignation to the Secretary
and the Borrower and specifying the date on which such
resignation is to take effect, and the Fiscal Agent may be
removed by the Secretary as the Fiscal Agent at any time, with or
without cause, by giving at least 5 Business Days' prior written
notice of such removal delivered to the Fiscal Agent and
specifying the date on which removal is to take effect. Upon any
such resignation or removal, pursuant to the terms of the
Borrower's Contract, the Secretary may, without other formality
than appointment and designation in writing (a copy of which
written instrument shall be promptly provided to the resigning or
removed Fiscal Agent), appoint a successor fiscal agent, provided
that such successor fiscal agent shall be eligible under the
provisions of Section 7.04. Any successor fiscal agent appointed
as provided herein shall execute, acknowledge and deliver to the
Secretary, the Borrower and to its predecessor fiscal agent an
instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the precedessor fiscal agent shall
WI-M
become effective and such successor fiscal agent, without any
further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as fiscal
agent herein. Upon acceptance by such successor fiscal agent of
its appointment hereunder or in the absence of such an
appointment upon the effective date of the resignation or removal
as specified in the applicable notice referred to above (or, if
the notice does not so specify, the expiration of the 60 or 5 day
period referred to above), the Fiscal Agent shall deliver all of
the Notes and their related Guarantees (if then held by the
Fiscal Agent) and other property relating to the Notes then in
its custody to such successor fiscal agent or the Secretary, as
the case may be, against receipt by such successor or the
Secretary, as the case may be, including without limitation, by
transmitting to such successor fiscal agent or the Secretary, as
the case may be, for deposit in successor accounts, established
by the successor fiscal agent or the Secretary, as the case may
be, all funds in or otherwise to the credit of the Note Accounts,
the Fee Account and the Defeasance Accounts. The Fiscal Agent
shall otherwise release, assign and deliver to such successor
fiscal agent or the Secretary, as the case may be, all other
property relating to the Notes in its possession, and effect a
transfer of such property in such manner and pursuant to such
instruments as the Secretary shall reasonably request. The
-27-
Fiscal Agent shall likewise deliver at such time to such
successor fiscal agent or the Secretary, as the case may be, all
of the Note Registers and all related records and documents in
its possession. The Fiscal Agent shall not be discharged from
its duties or obligations hereunder following its resignation or
removal until such property has been delivered to such successor
or the Secretary, as the case may be, and transferred, as
provided above.
SECTION 7.06. Merger or Consolidation of Fiscal Agent
Any corporation into which the Fiscal Agent may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Fiscal Agent shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Fiscal Agent, shall be the
successor of the Fiscal Agent hereunder, provided such
corporation shall be eligible under the provisions of
Section 7.04, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 7.07. Fiscal Agent May Own Notes The Fiscal Agent
in its individual or any other capacity may become owner or
pledgee of Notes with the same rights it would have if it were
not the Fiscal Agent.
own
SECTION 7.08. Fidelity Bond or Insurance So long as any
Note is administered hereunder, the Fiscal Agent shall at all
times maintain a fidelity bond or such insurance coverage in
respect of its fiscal agent capacity hereunder as it ordinarily
maintains when acting in such capacity.
ARTICLE VIII
TERMINATION
SECTION 8.01. Termination The respective obligations and
responsibilities of the Borrowers and the Fiscal Agent created
hereby with respect to any Note administered by the Fiscal Agent
(other than the obligations of the Borrowers and the Fiscal Agent
to make payments to Holders as hereafter set forth) shall
terminate upon the final payment of the last Note administered by
the Fiscal Agent at its Maturity Date. No notice need be given
and final payment will be made from the corresponding Note
Account on the next following Payment Date upon presentment and
surrender of the Note at the office maintained pursuant to
Section 5.03.
With respect to each Borrower, upon the final payment of
principal of and interest on each Note, for which a separate Note
Account has been established pursuant to Section 3.04, the Fiscal
Agent shall notify the Secretary of any moneys deposited in such
Note Account which have remained unclaimed by any Holder entitled
to receive the same for at least two years after the date upon
which such final payment
may, and upon receipt of
shall, pay over to the S
deposited and the Holder
Secretary for payment of
of the Fiscal Agent with
thereupon cease.
should have been made. The Fiscal Agent
a written request of the Secretary
ecretary the unclaimed amount so
shall thereafter look only to the
such unclaimed amount, and all liability
respect to such unclaimed amount shall
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01. Amendment Except as otherwise provided in
this Section 9.01, this Agreement may not be amended without the
prior written consent of the Secretary and of all other
Borrowers; provided however that no such amendment shall reduce
in any manner the amount of, or delay the timing of, payments
received by the Fiscal Agent, including Guarantee Payments, which
are required to be distributed on any Note without the consent of
the Holder of such Note. Subject to the foregoing proviso, with
the prior written consent of the Secretary, the Borrower and the
Fiscal Agent may from time to time agree to amend any provision
of this Agreement so long as such amendment relates only to the
Borrower and the Fiscal Agent and shall not adversely affect the
rights of the other Borrowers that are parties hereto. No
amendment, modification, termination or waiver of any provision
of this Agreement, nor any consent to any departure by any party
-30-
from any provision hereof binding upon such party, shall be
effective unless the same shall be in writing and signed by the
parties hereto, the Secretary and if applicable, all other
Borrowers. No such amendments, modification, waiver or consent
shall adversely affect the rights of the Holder or Holders of any
Note issued in accordance with the terms of this Agreement and
outstanding at the time of such amendment, modification, waiver
or consent.
SECTION 9.02. Inspection of Documents by Holders The
Fiscal Agent shall keep a fully executed or conformed copy of
this Agreement (together with all amendments, supplements,
waivers and consents hereto) on file at its Corporate Trust
Office, and shall permit reasonable inspection (and limited
copying) to be made of this Agreement during normal business
hours by any Holder or by its designee, at such Person's expense,
provided that the Person purporting to be such Holder or designee
establishes his identity and capacity to the Fiscal Agent's
satisfaction.
SECTION 9.03. Governing Law This Agreement and the Notes
and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with,
the laws of the State of New York, and the obligations, rights
and remedies of the parties hereunder and thereunder shall be
determined in accordance with such laws.
-31-
SECTION 9.04. Notices All demands, notices and
communications hereunder shall be in writing and shall be deemed
to have been duly given when and if personally delivered at or
mailed by registered mail, postage prepaid, (a) in the case of
the Borrower, to the address furnished on the signature pages
attached hereto, (b) in the case of the Secretary, to the United
States Department of Housing and Urban Development, 451 Seventh
Street, S.W., Washington, D.C. 20410, Attention: Director,
Financial Management Division, Office of the Assistant Secretary
for Community Planning and Development, or such other address as
may hereafter be furnished to the Fiscal Agent in writing by the
Secretary, and (c) in the case of the Fiscal Agent, to P.O. Box
318, Church Street Station, New York, New York 10015,
Attention: Public Debt Services, or such other address as may
hereafter be furnished to the Borrower and to the Secretary, in
writing, by the Fiscal Agent. The Fiscal Agent is entitled to a
copy of any notice given to the Borrower or to the Secretary by
any Holder. Any notice required or permitted to be mailed to a
Holder shall be given by first class mail, postage prepaid, at
the address of such Holder as shown in the Note Register. Any
notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether
or not the Holder receives such notice.
SECTION 9.05. Severability of Provisions If any one
or more of the covenants, agreements, provisions, or terms of
-32-
this Agreement shall be for any reason whatsoever held invalid,
then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements,
provisions, or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this
Agreement or of the Notes or the rights of the Holders thereof.
SECTION 9.06. Counterparts This Agreement may be executed
in several counterparts, each of which shall be an original and
all of which together constitute but one and the same instrument.
IN WITNESS WHEREOF, the Borrowers and the Fiscal Agent have
duly approved the terms and provisions hereof by causing the
names of their respective officers duly authorized to be executed
on counterpart agreements in respect of each series of Notes.
-33-
EXHIBIT A
[ FORM OF AUTHORIZATION ORDER
Bankers Trust Company, as
Fiscal Agent under the
Fiscal Agency Agreement
referred to below
4 Albany Street, 4th Floor
New York, New York 10015
Attention: Public Debt Services
Dear Sirs:
The following information is being furnished to you pursuant
to (i) Section 2.03 of the Fiscal Agency Agreement dated as of
June 5, 1987 providing for the issue of U.S. Government
Guaranteed Notes, Series , and (ii) Section of the
Underwriting Agreement dated as of June , 1987. Capitalized
terms used herein and not otherwise defined herein have the same
meanings as in the Fiscal Agency Agreement.
ARTICLE I. Information regarding Notes to be registered in
the name of and delivered to the Holders:
(a) Note series:
(b) Name of issue:
(c) Interest Payment Dates: Semi - annual interest payments
on February 1 and August 1, commencing [Insert first interest
Payment Date] to the Maturity Date indicated below.
(d)
MATURITY DATE
Interest
DM4-e
[insert August or February 11, 198_ %
198 %
199 %
199 %
199 %
199 %
A -1
(e)
SERIAL MATURITIES
(000's omitted) Total
BORROWER 198 198 199 199 199 199 199 Amount
(f) [State whether the Notes and their related Guarantees
are to be physically held by the Fiscal Agent or transferred to
The Depository Trust Company and the date such delivery or
transfer is to occur.]
(g) [State whether the Notes are subject to redemption or
acceleration prior to their Maturity Dates indicated above and if
so, the terms and conditions relating to any redemption or
acceleration].
ARTICLE II. [Instructions to the Fiscal Agent regarding
application of proceeds of the Notes, and of funds received by
the Secretary from the Borrower to be deposited with the Fiscal
Agent at the time of delivery of the Notes.]
Very truly yours,
SECRETARY OF HOUSING AND
URBAN DEVELOPMENT
By:
Title: [
A -1
EXHIBIT B
June , 1987
Bankers Trust Company, as
Fiscal Agent under the
Fiscal Agency Agreement
referred to below
4 Albany Street
New York, New York 10015
Attention: Helen D. Levine,
Public Debt Service
Re: $00,000,000 U.S. Government Guaranteed Notes,
Series 1987 -A, Guaranteed by the Secretary of
Housing and Urban Development
Dear Ms. Levine:
The Depository Trust Company ( "DTC ") has agreed to act as
securities depository for the above - referenced Notes and their
related guarantees. Pursuant to the terms and provisions of the
Series 1987 -A Fiscal Agency Agreement (the "Fiscal Agency
Agreement "),* dated as of June 5, 1987, entered into by and among
the Borrowers and Bankers Trust Company, a New York banking
corporation, as Fiscal Agent, the ownership of the Notes will be
registered by the Fiscal Agent in the name of Cede & Co., as
nominee for DTC.
DTC hereby acknowledges that so long as DTC or its nominee
is the Holder of the Notes, the Guarantees run directly to DTC.
In recognition thereof, DTC hereby appoints the Fiscal Agent to
serve as DTC's agent solely for the purpose of enforcing any
Guarantee while DTC or its nominee is the Holder of any
corresponding Note.
THE DEPOSITORY TRUST COMPANY
By:
Title:
* Please be advised that as used in this letter, any capitalized
terms not defined herein shall have the meanings ascribed to them
in the Letter of Representations furnished by the Fiscal Agent at
the request of DTC.
B -1
EXHIBIT C
[to be provided - Form of Standard Letter of Representations
requested by DTC, to be signed by the Fiscal Agent, in its
individual capacity and as agent of the Borrowers.]
C -1