MINUTES
Regular
Meeting – Board of Trustees
In
accordance with the terms and provisions of the Texas Open Meetings Act,
Chapter 551 of Texas Government Code, the Board of Trustees of the Austin
Community College District convened in public session on Monday, June 7, 2004,
at 6:05 p.m. in the Board Room (201) of the Highland Business Center of Austin
Community College located at 5930 Middle Fiskville
Road, Austin, Texas, with the following members present: Rafael Quintanilla,
Chair/Presiding Officer; Barbara P. Mink, Board Vice Chair; Allen H. Kaplan,
Secretary; Lillian Davis; John Hernandez; Jeffrey Richard; and John
Worley. Trustees Nan McRaven
and Beverly Silas were absent from the meeting.
It is
further found and determined that in accordance with the policies and orders of
this Board, the notice of this meeting has been posted and return thereof made
pursuant to the terms and provisions of the Texas Open Meetings Act, Chapter
551 of the Texas Government Code, and there has been full compliance with the
terms and provisions of said act, including the timely posting of the subjects
of this meeting.
Swearing-In of
Board Members – Places 4, Jeffrey Richard, and Place 5, Rafael Quintanilla
District
Judge Will Flowers administered the Oath of Office to recently elected Austin
Community College Trustee Jeffrey Richard, Place 4, and re-elected Trustee
Rafael Quintanilla, Place 5.
Recognitions
The
following individuals were recognized and presented with plaques by Trustee
John Hernandez for their valuable contributions to the success of the May 15
referendum which voters approved the annexation of the Del Valle Independent
School District into the Austin Community College District:
Father John S. Korcsmar,
Dolores Parish
Rebecca Herenandez,
Luz Smith,
Maribel Diaz,
Olga Vasquez,
Pasqual Salazar, Capital IDEA
Rona Cavil, Capital IDEA
Beatrice Espinola, Capital
IDEA
Jessica Chaplin, Capital IDEA
Hunter Ellinger, Friends
of ACC
Terry Thomas, Friends of ACC
Steve
Jacobs, Capital IDEA, and Sister Mignonne Konecny, Austin Interfaith, were also recognized for their
efforts in the successful Del Valle referendum.
Citizens
Communication
·
Mark Goodrich, President of ACC/AFT, spoke regarding
the Southern Association of Colleges and Schools (SACS) findings.
·
John Wiegand, citizen,
spoke regarding a proposed tuition increase.
·
Jeff Jack, citizen, spoke regarding the South
Austin Campus.
Reports from
Associations
·
Adjunct Faculty Association – Caleb Buckley,
President-Elect, spoke regarding tuition, SACS, and shared governance.
·
Classified Employees Association – Judy Green,
President, spoke regarding tuition.
·
Full-Time Faculty Senate – Daniel Traverso, President, distributed information and spoke
regarding tuition and compensation.
Terry Thomas, Full-Time faculty, discussed the Full-Time Faculty
Compensation Proposal for Fiscal Year 2005..
·
Professional-Technical Employees Association –
John Kennie, President, spoke regarding College
staffing and compensation.
·
Student Government Association – James
“Levi” Barnes, President, spoke regarding
shared governance, student activity fee, SACS/communication with Student
Government Association, tuition increase and advised the next association
meeting would be held on Friday, June 11.
The
agenda was re-ordered.
Agenda Item
7939
Proposed
Ratification and Approval of Election Vote Canvass to Add Del Valle Independent
School District to the
Board Secretary Allen Kaplan moved and Board Vice
Chair Barbara Mink seconded that:
MOTION: The Board of Trustees approve the official canvass of votes by Del Valle
Independent School District Voters and add Del Valle ISD to the ACC Taxing
District.
VOTE: The motion passed on a
unanimous vote of 7-0.
FOR: Lillian J. Davis, John
Hernandez, Allen Kaplan, Barbara Mink, Rafael Quintanilla, Jeffrey Richard, and
John Worley.
AGAINST: None.
Absent:
Trustees
Reports to the
Board
·
Report on Achievements and Recognitions – Kathleen Christensen,
Associate Vice President for Retention and Student Services, distributed the
Kudos Report and called attention to recent awards/recognitions received by
faculty/programs, staff, students, and
·
Financial Report – April 2004 – Ben Ferrell, Vice President for Business
Services, called attention to the April 2004 financial report noting that the
College will have a positive balance of revenues versus expenditures for the
current fiscal year and will meet the expectations of Board Policy G-6, Cash
Reserves, or the corrective action plan requirements. Mr. Ferrell responded to questions from
Trustees regarding in-district status of Del Valle ISD students for Summer 2004 enrollments.
He stated the effective date for in-district status was
CONSENT AGENDA
Agenda Item
7932
Minutes of
Recommendation: That the Board of Trustees approve
the minutes as presented.
Allen Kaplan moved and Trustee Lillian Davis
seconded that:
MOTION:
The Board of Trustees approve the minutes of the May 3, 2004, Regular
Meeting; May 17, 2004, Work Session; and May 24, 2004, Special Meeting of the
Austin Community Board of Trustees as presented.
VOTE: The
motion passed on a unanimous vote of 7-0.
FOR: Lillian J. Davis, John
Hernandez, Allen Kaplan, Barbara Mink, Rafael Quintanilla, Jeffrey Richard, and
John Worley.
AGAINST: None.
Absent:
Trustees
Agenda Item
7933
Proposed
Approval of An Order Authorizing the Issuance of
$24,000,000 “Austin Community College District Limited Tax Bonds, Series 2004”,
Levying a Tax for Payment Thereof, and Authorizing Other Matters Related
Thereto
Chair
Quintanilla introduced the item and Ben Ferrell, Vice President for Business
Services, advised that this bond issue is the remaining amount of the $99
million in General Obligation Bonds authorized in the May 2003 tax
referendum. He stated it was originally
planned for Fiscal Year 2006; however, the time of issuance was accelerated due
to recent interest rate increases in order to avoid unnecessary future interest
expense to District taxpayers. Jorge
Rodriguez of Coastal Securities and Financial Advisor to
Mr. Ferrell and Mr. Rodriguez responded to questions from Trustees.
Dr. Davis moved and Allen Kaplan seconded
that:
MOTION:
The Board of Trustees approve the revised Order Authorizing the Issuance
of $23,910,000 “Austin Community College District Limited Tax Bonds, Series 2004,”
Levying a Tax for Payment Thereof, and Authorizing Other Matters Related
Thereto.
VOTE:
The Motion passed on a vote of 6-0.
FOR: Lillian J. Davis, John
Hernandez, Allen Kaplan, Barbara Mink, Rafael Quintanilla, and John Worley.
AGAINST: None.
ABSTAIN: Jeffrey Richard
Absent:
Trustees
*****
AN ORDER AUTHORIZING THE ISSUANCE OF $23,910,000
"AUSTIN COMMUNITY COLLEGE DISTRICT LIMITED TAX BONDS, SERIES 2004,"
LEVYING A TAX FOR PAYMENT THEREOF, AND AUTHORIZING OTHER MATTERS RELATING
THERETO
WHEREAS, the Austin Community
College District (the “College”) has determined that the second and last
installment of bonds authorized at the election held on May 3, 2003 should be
issued in the aggregate principal amount of $23,910,000 pursuant to the
applicable provisions of the Texas Constitution and laws of the State of Texas,
including Section 130.122, Texas Education Code, as amended, for the purpose of
the construction, renovation and equipment of College buildings District-wide
(including Phase 2 of the Health Careers Building at the Eastview
Campus, construction of the South Austin Campus, expansion of the Cypress Creek
Campus, renovations and improvements of the Rio Grande Campus, renovations
District-wide, including student parking, and such other improvements as may be
determined by the District); and
WHEREAS, out of the bonds voted at
said election, $75,000,000 of the $99,000,000 authorized were issued on July
10, 2003 with a net premium of $89,378.10 for construction, renovation and
equipment of College buildings District-wide (including Phase 2 of the Health
Careers Building at the Eastview Campus, construction
of the South Austin Campus, expansion of the Cypress Creek Campus, purchase
and/or renovations, and improvements of the Rio Grande Campus, renovations
District-wide, including student parking, and such other improvements as may be
determined by the District) and up to $23,910,621.90 remain to be issued; and
WHEREAS, on this day, the Board of
Trustees of the College, convened at
WHEREAS, the Board of Trustees of
the College determined that at this time the remaining $23,910,000 in new bonds
approved in said bond election should be delivered and sold for cash;
THEREFORE, BE IT ORDERED BY THE
BOARD OF TRUSTEES, AUSTIN COMMUNITY COLLEGE DISTRICT, FOR AND ON BEHALF OF THE
ARTICLE
I
DEFINITIONS
AND OTHER PRELIMINARY MATTERS
Section 1.01. Definitions. Unless otherwise expressly provided or unless
the context clearly requires otherwise in this Order, the following terms shall
have the meanings specified below:
"Board" means the Board of
Trustees of the College.
"Bond" or
"Bonds" means the bonds authorized to be issued by Section 3.01 of
this Order and designated as "Austin Community College District Limited
Tax Bonds, Series 2004".
"Closing Date" means the
date of the initial delivery of and payment for the Bonds.
"Code" means the Internal
Revenue Code of 1986, as amended, including the regulations and published
rulings thereunder.
"College,” “District” or
“Issuer” means Austin Community College District.
"Construction Fund" means
the construction fund established by Section 2.04 of this Order.
“Designated Payment/Transfer Office”
shall mean the office of the Paying Agent which is designated for the
presentment of the Bonds.
"DTC" shall mean The
Depository Trust Company,
"DTC Participant" shall
mean any broker, dealer, bank, trust company, clearing corporation or certain
other organizations with bonds credited to an account maintained on its behalf
by DTC.
"Event of Default" means
any event of default as defined in Section 11.01 of this Order.
"Fiscal Year" means such
fiscal year of the College as shall from time to time be set by the Board,
presently September 1 to August 31.
“Government Obligations” means
direct noncallable obligations of the
"Initial Bond" means the
initial bond described in Sections 3.04(d) and 6.02(e) of this Order.
"Interest and Sinking
Fund" means the interest and sinking fund established by Section 2.03 of this
Order.
"Interest Payment Date"
when used in connection with any Bond means the date or dates upon which
interest on each Bond is scheduled to be paid until their respective dates of
maturity or prior redemption, such dates being February 1 and August 1 of each
year, commencing February 1, 2005.
"Issue Date" means the
dated date of the Bonds,
"Owner" means the person
who is the registered owner of a Bond or Bonds as shown in the Register.
"Paying Agent/Registrar"
means initially JPMorgan Chase Bank,
"Record Date" means the
close of business on the fifteenth calendar day of the month next preceding the month in which an Interest Payment Date
occurs.
"Register" means the
register specified in Section 3.06(a) of this Order.
"Unclaimed Payments" means
money deposited with the Paying Agent/Registrar for the payment of the
principal of or interest on the Bonds as the same comes due and payable and
remaining unclaimed by the Owners for 90 days after the applicable payment or
redemption date.
“Underwriters” mean: J. P. Morgan
Securities, Inc., Estrada Hinojosa & Company, Inc., and RBC Dain Rauscher Inc.
Section 1.02. Findings. The declarations, determinations and findings
declared, made and found in the preamble to this Order are hereby adopted,
restated and made a part of the operative provisions hereof.
Section 1.03. Titles and Headings. The titles and headings of the Articles and
Sections of this Order have been inserted for convenience of reference only and
are not to be considered a part hereof and shall not in any way modify or
restrict any of the terms or provisions hereof and shall never be considered or
given any effect in construing this Order or any provision hereof or in
ascertaining intent, if any question of intent should arise.
Section 1.04. Interpretation.
(a) Unless
the context requires otherwise, words of the masculine gender shall be
construed to include correlative words of the feminine and neuter genders and
vice versa, and words of the singular number shall be construed to include
correlative words of the plural number and vice versa.
(b) This
Order and all the terms and provisions hereof shall be liberally construed to
effectuate the purposes set forth herein.
ARTICLE
II
SECURITY
FOR THE BONDS
CREATION
OF FUNDS
Section 2.01. Tax Levy for Payment of
Bonds. Pursuant to the
authority granted by the Constitution and laws of the State of Texas, there
shall be levied and there is hereby levied for the current year and each
succeeding year thereafter while the Bonds or any interest thereon is
outstanding and unpaid, an ad valorem tax within
legal limitations on each $100 valuation of taxable property in the District,
at a rate sufficient within the limits prescribed by law to pay the debt
service requirements on the Bonds, when due and payable, full allowance being
made for delinquencies and costs of collection; said tax shall be assessed and
collected each year and applied to the payment of the debt service
requirements, and the same shall not be diverted to any other purpose. The taxes so levied and collected shall be
paid into the Interest and Sinking Fund.
This governing body hereby declares its purpose and intent to provide
and levy a tax legally and fully sufficient to pay the debt service
requirements, it having been determined that the existing and available taxing
authority of the College for such purpose is adequate to permit a legally
sufficient tax in consideration of all other outstanding obligations.
The amount of taxes to be provided
annually for the payment of principal of and interest on the Bonds shall be
determined and accomplished in the following manner:
(a) The
College's annual budget shall reflect the amount of debt service requirements
to become due on the Bonds in the next succeeding Fiscal Year.
(b) The
amount required to be provided in the succeeding Fiscal Year of the College from ad valorem taxes shall be the amount of the debt service
requirements to be paid on the Bonds in the next succeeding Fiscal Year.
(c) Following
the final approval of the annual budget of the College, the governing body of
the College shall, by order, levy an ad valorem tax
at a rate sufficient to produce taxes in the amount determined in paragraph (b)
above, to be utilized for purposes of paying the principal of and interest on
the Bonds in the next succeeding Fiscal Year.
If the liens and provisions of this
Order shall be released in a manner permitted by Article XII hereof, then the
collection of such ad valorem tax may be suspended or
appropriately reduced, as the facts may permit, and further deposits to the
Interest and Sinking Fund may be suspended or appropriately reduced, as the
facts may permit. In determining the aggregate
principal amount of outstanding Bonds there shall be subtracted the amount of
any Bonds that have been duly called for redemption and for which money has
been deposited with the Paying Agent/Registrar for such redemption.
Section 2.02. Effect of Pledge. Chapter 1208, Government Code, applies to the
issuance of the Bonds and the pledge of the taxes thereof granted by the
College under Section 2.01 of this Order, and such pledge is therefore valid,
effective, and perfected. If Texas law
is amended at any time while the Bonds are outstanding and unpaid such that the
pledge of the taxes granted by the College under Section 2.01 of this Order is
to be subject to the filing requirements of Chapter 9, Business & Commerce
Code, then in order to preserve to the Registered Owners of the Bonds the
perfection of the security interest in said pledge, the College agrees to take
such measures as it determines are reasonable and necessary under Texas law to
comply with the applicable provisions of Chapter 9, Business & Commerce
Code and enable a filing to perfect the
security interest in said pledge to occur.
Section 2.03. Interest and Sinking
Fund.
(a) The
College hereby establishes a special fund or account to be designated the
"Austin Community College District Limited Tax Bonds, Series 2004 Interest
and Sinking Fund" (the "Interest and Sinking Fund") with said
fund to be maintained at an official depository bank of the College separate
and apart from all other funds and accounts of the College.
(b) Money
on deposit in or required by this Order to be deposited to the Interest and
Sinking Fund shall be used solely for the purpose of paying the interest on and
principal of the Bonds when and as due and payable in accordance with their
terms and this Order.
Section 2.04. Construction Fund.
(a) Establishment
of Construction Fund. A special fund
or account, to be designated the "Austin Community College District
Limited Tax Bonds, Series 2004 Construction Fund" (the "Construction
Fund") is hereby created and shall be established and maintained by the
College at the official College depository.
The Construction Fund shall be kept separate and apart from all other
funds and accounts of the College. The
proceeds from the sale of the Bonds shall be deposited in the Construction Fund
and payments therefrom shall be made as provided
below.
(b) Payments
from Construction Fund. Payments
from the Construction Fund shall be used solely for the purpose of paying
contractual obligations to be incurred for the purpose of the construction,
renovation and equipment of College buildings District-wide (including Phase 2
of the Health Careers Building at the Eastview
Campus, construction of the South Austin Campus, expansion of the Cypress Creek
Campus, renovations and improvements of the Rio Grande Campus, renovations
District-wide, including student parking, and such other improvements as may be
determined by the District), professional
services related thereto and
costs of issuance.
(c) Surplus
Construction Funds. Any moneys
remaining in the Construction Fund after completion of the entirety of the
contractual obligations authorized hereby shall be deposited into the Interest
and Sinking Fund.
Section 2.05. Security of Funds. All moneys on deposit in the Interest and
Sinking Fund and the Construction Fund for which this Order makes provision
(except any portion thereof as may be at any time properly invested) shall be
secured in the manner and to the fullest extent required by the laws of the
State of Texas for the security of College funds, and moneys on deposit in such
funds shall be used only for the purposes permitted by this Order.
ARTICLE
III
AUTHORIZATION: GENERAL TERMS AND PROVISIONS
REGARDING
THE BONDS
Section 3.01. Authorization. The College's limited tax bonds to be
designated "AUSTIN COMMUNITY COLLEGE DISTRICT LIMITED TAX BONDS, SERIES
2004" (the "Bonds"), are hereby authorized to be issued and
delivered in accordance with the Constitution and laws of the State of Texas. The Bonds shall be issued in the aggregate
principal amount of $23,910,000 for the purpose of construction, renovation and
equipment of College buildings District-wide (including Phase 2 of the Health
Careers Building at the Eastview Campus, construction
of the South Austin Campus, expansion of the Cypress Creek Campus, renovations
and improvements of the Rio Grande Campus, renovations District-wide, including
student parking, and such other improvements as determined by the District).
Section 3.02. Fully Registered Interest
Paying/Non-Interest Paying Obligations - Term. The Bonds shall be issued as fully registered
obligations, without coupons.
The Bonds (other than the Initial
Bond referenced in Section 3.04(d) hereof) shall be in denominations of $5,000
or any integral multiple (within a Stated Maturity) thereof, shall be lettered
"R" and numbered consecutively from One (1) upward, and principal
shall become due and payable on August 1 in each of the years and in amounts
(the "Stated Maturities") and bear interest at the rate(s) per annum
in accordance with the following schedule:
Year of Principal Interest Year
of Principal Interest
Maturity
Amount Rate Maturity Amount Rate
2008 $ 250,000 3.000% 2018 $
750,000 5.000%
2009 250,000 3.200% 2019 785,000 5.000%
2010 250,000 3.500% 2020 825,000 5.000%
2011 250,000 3.600% 2021 865,000 5.000%
2012 250,000 3.800% 2022 910,000 5.000%
2013 595,000 4.000% 2023 955,000 5.000%
2014 620,000 4.125% 2024 1,000,000 5.000%
2015 645,000 5.000% 2025 1,055,000 5.000%
2016 680,000 5.000% 2029 4,765,000 5.000%
2017 710,000 5.000% 2034 7,500,000 5.500%
The Bonds shall bear interest on the
unpaid principal amounts from the Issue Date at the rate(s) per annum shown in
the above schedule (calculated on the basis of a 360-day year of twelve 30-day
months). Interest on the Bonds shall be
payable on February 1 and August 1 in each year, commencing
Section 3.03. Medium, Method and Place
of Payment.
(a) The
principal of and interest on the Bonds shall be paid in lawful money of the
(b) Interest
on the Bonds shall be payable to the Owner whose name appears in the Register
at the close of business on the fifteenth day of the month next preceding such
Interest Payment Date (the "Record Date"); provided, however, that in
the event of nonpayment of interest on a scheduled Interest Payment Date, and
for thirty (30) days thereafter, a new record date for such interest payment
(the "Special Record Date") will be established by the Paying
Agent/Registrar (hereinafter defined and designated) if and when funds for the
payment of such interest have been received from the College. Notice of the Special Record Date and of the
scheduled payment date of the past due interest (the "Special Payment
Date," which shall be at least 15 days after the Special Record Date)
shall be sent at least five (5) business days prior to the Special Record Date
by United States mail, first class postage prepaid, to the address of each Owner
of a Bond appearing on the books of the Paying Agent/Registrar at the close of
business on the last business day preceding the date of mailing of such notice.
(c) Interest
on a Bond shall be paid by check, dated as of the Interest Payment Date, and
sent by the Paying Agent/Registrar to each Owner, first class United States
mail, postage prepaid, to the address of each Owner as it appears in the
Register, or by such other customary banking arrangements acceptable to the
Paying Agent/Registrar and each Owner to whom interest is to be paid; provided,
however, that the Owner shall bear all risk and expenses of such customary
banking arrangements.
(d) The
principal of each Bond shall be paid to the Owner thereof on the Stated
Maturity Date or the date of prior redemption thereof upon presentation and
surrender of such Bond at the Designated Payment/Transfer Office of the Paying
Agent/Registrar.
(e) If
the date for the payment of the principal of or interest on the Bonds shall be
a Saturday, Sunday, legal holiday, or a day on which banking institutions in
the city where the Paying Agent/Registrar is located are required or authorized
by law or executive order to close, then the date for such payment shall be the
next succeeding day which is not a Saturday, Sunday, a legal holiday, or day on
which banking institutions are required or authorized to close, and payment on
such date shall for all purposes be deemed to have been made on the due date
thereof as specified in this Section.
Section 3.04. Control, Execution and
Initial Registration.
(a) The
Bonds shall be executed on behalf of the College by the President of the Board
and the Secretary of the Board, by their manual or facsimile signatures, and
the official seal of the College shall be impressed or placed in facsimile
thereon. Such facsimile signatures on
the Bonds shall have the same effect as if each of the Bonds had been signed
manually and in person by each of said officers, and such facsimile seal on the
Bonds shall have the same effect as if the official seal of the College had
been manually impressed upon each of the Bonds.
(b) In
the event that any officer of the College whose manual or facsimile signature
appears on the Bonds ceases to be such officer before the authentication of
such Bonds or before the delivery thereof, such facsimile signature
nevertheless shall be valid and sufficient for all purposes as if such officer
had remained in such office.
(c) Except
as provided below for the Initial Bond, no Bond shall be valid or obligatory
for any purpose or be entitled to any security or benefit of this Order unless
and until there appears thereon the Certificate of Paying Agent/Registrar
substantially in the form provided herein, duly authenticated by manual
execution by an officer or duly authorized signatory of the Paying
Agent/Registrar. It shall not be
required that the same officer or authorized signatory of the Paying
Agent/Registrar sign the Certificate of Paying Agent/Registrar on all of the
Bonds. In lieu of the executed Certificate of Paying Agent/Registrar described
above, the Initial Bond delivered at the Closing Date shall have attached
thereto the Comptroller's Registration Certificate substantially in the form
provided herein, manually executed by the Comptroller of Public Accounts of the
State of Texas, or by her duly authorized agent, which certificate shall be
evidence that the Bond has been duly approved by the Attorney General of the
State of Texas and that it is a valid and binding obligation of the College,
and has been registered by the Comptroller of Public Accounts of the State of
Texas.
(d) On
the Closing Date, one Initial Bond representing the entire principal amount of
all Bonds, payable in stated installment to the Underwriters, or their
designee, manually signed by the President of the Board of Trustees of the
College and manually countersigned by the Secretary of the Board of Trustees,
approved by the Attorney General, and registered and manually signed by the
Comptroller of Public Accounts, will be delivered to the Underwriters or their
designee. Upon payment for the Initial
Bond, the Paying Agent/Registrar shall cancel the Initial Bond and deliver
registered definitive Bonds in accordance with instructions received from the
Underwriters or their designee.
Section 3.05. Ownership.
(a)
The College, the Paying Agent/Registrar and any other person may treat the
person in whose name any Bond is registered as the absolute owner of such Bond
for the purpose of making and receiving payment of the principal thereof
(subject to the provisions herein that interest is to be paid to the person in
whose name a Bond is registered on the Record Date), if any, thereon, for the
further purpose of making and receiving payment of the interest thereon, and
for all other purposes, whether or not such Bond is overdue, and neither the
College nor the Paying Agent/Registrar shall be bound by any notice or
knowledge to the contrary.
(b) All
payments made to the Owner of a Bond shall be valid and effectual and shall
discharge the liability of the College and the Paying Agent/Registrar upon such
Bond to the extent of the sums paid.
Section 3.06. Registration, Transfer
and Exchange.
(a) So
long as any Bonds remain outstanding, the College shall cause the Paying
Agent/Registrar to keep at its Designated Payment/Transfer Office a register
(the "Register") in which, subject to such reasonable regulations as
it may prescribe, the Paying Agent/Registrar shall provide for the registration
and transfer of Bonds in accordance with this Order.
(b) Registration
of any Bond may be transferred in the Register only upon the presentation and
surrender thereof at the Designated Payment/Transfer Office of the Paying
Agent/Registrar for transfer of registration and cancellation, together with
proper written instruments of assignment, in form and with guarantee of
signatures satisfactory to the Paying Agent/Registrar, evidencing assignment of
the Bonds, or any portion thereof in any integral multiple of $5,000, to the
assignee or assignees thereof, and the right of such assignee or assignees
thereof to have the Bond or any portion thereof registered in the name of such
assignee or assignees. No transfer of
any Bond shall be effective until entered in the Register. Upon assignment and transfer of any Bond or
portion thereof, a new Bond or Bonds will be issued by the Paying
Agent/Registrar in conversion of and exchange for such transferred and assigned
Bond. To the extent possible, the Paying Agent/Registrar will issue such new
Bond or Bonds in not more than three (3) business days after receipt of the
Bond to be transferred in proper form and with proper instructions directing
such transfer.
(c) Any
Bond may be converted and exchanged only upon the presentation and surrender
thereof at the Designated Payment/Transfer Office of the Paying
Agent/Registrar, together with a written request therefor
duly executed by the Owner or assignee or assignees thereof, or its or their
duly authorized attorneys or representatives, with guarantees of signatures
satisfactory to the Paying Agent/Registrar, for a Bond or Bonds of the same
maturity and interest rate and in any authorized denomination and in an
aggregate principal or maturity amount equal to the unpaid principal or
maturity amount of the Bond presented for exchange. If a portion of any Bond is redeemed prior to
its scheduled maturity as provided herein, a substitute Bond or Bonds having
the same maturity date, bearing interest at the same rate, in the denomination
or denominations of any integral multiple of $5,000 at the request of the
Owner, and in an aggregate principal amount equal to the unredeemed portion
thereof, will be issued to the Owner upon surrender thereof for
cancellation. To the extent possible, a
new Bond or Bonds will be required to be delivered by the Paying
Agent/Registrar to the Owner of the Bond or Bonds in not more than three (3)
business days after receipt of the Bond to be exchanged in proper form and with
proper instructions directing such exchange.
(d) Each
Bond issued in exchange for any Bond or portion thereof assigned, transferred
or converted shall have the same principal maturity date and bear interest at
the same rate as the Bond for which it is being exchanged. Each substitute Bond shall bear a letter and/or number to
distinguish it from each other Bond. The
Paying Agent/Registrar shall convert and exchange the Bond as provided herein,
and each substitute Bond delivered in accordance with this Section shall
constitute an original additional contractual obligation of the College and
shall be entitled to the benefits and security of this Order to the same extent
as the Bond or Bonds in lieu of which such substitute Bond is delivered.
(e) The
College will pay the Paying Agent/Registrar's reasonable and customary charge
for the initial registration or any subsequent transfer, exchange or conversion
of Bonds, but the Paying Agent/Registrar will require the Owner to pay a sum
sufficient to cover any tax or other governmental charge that is authorized to
be imposed in connection with the registration, transfer, exchange or
conversion of a Bond. In addition, the College hereby covenants with the Owners
of the Bonds that it will (i) pay the reasonable and
standard or customary fees and charges of the Paying Agent/Registrar for its
services with respect to the payment of the principal of and interest on the
Bonds, when due, and (ii) pay the fees and charges of the Paying
Agent/Registrar for services with respect to the transfer, registration,
conversion and exchange of Bonds as provided herein.
(f) Neither
the College nor the Paying Agent/Registrar shall be required to transfer or
exchange any Bond called for redemption, in whole or in part, within forty-five
(45) days of the date fixed for redemption; provided, however, such limitation
shall not be applicable to an exchange by the Owner of the uncalled balance of
a Bond.
Section 3.07. Cancellation.
(a) All
Bonds paid or redeemed before scheduled maturity in accordance with this Order,
and all Bonds in lieu of which exchange Bonds or replacement Bonds are
authenticated and delivered in accordance with this Order, shall be canceled
and destroyed upon the making of proper records regarding such payment,
redemption, exchange or replacement. The
Paying Agent/Registrar shall periodically furnish the College with certificates
of destruction of such Bonds.
(b) Each
substitute Bond issued in conversion of and exchange for or replacement of
(pursuant to the provisions of Sections 3.06, 3.08 and 3.09 hereof) any Bond or
Bonds issued under this Order shall have printed thereon a Certificate of
Paying Agent/Registrar, in the form hereinafter set forth. An authorized representative of the Paying
Agent/Registrar shall, before the delivery of any such Bond, manually sign and
date such Certificate of Paying Agent/Registrar, and no such Bonds shall be
deemed to be issued or outstanding unless such Certificate of Paying
Agent/Registrar is so executed. No
additional ordinances, orders, or resolutions need be passed or adopted by the
Board or any other body or person so as
to accomplish the foregoing conversion and exchange or replacement of any Bond
or portion thereof, and the Paying Agent/Registrar shall provide for the
printing, execution and delivery of the substitute Bonds in the manner prescribed
herein, and said Bonds shall be of customary type and composition and be
printed on paper with lithographed or steel engraved borders of customary
weight and strength. Pursuant to
Subchapter D of Chapter 1201, Texas Government Code, as amended, the duty of
conversion and exchange or replacement of Bonds as aforesaid is hereby imposed
upon the Paying Agent/Registrar, and, upon the execution of the above
Certificate of Paying Agent/Registrar, the converted and exchanged or replaced
Bonds shall be valid, incontestable, and enforceable in the same manner and
with the same effect as the Initial Bond which was originally delivered
pursuant to this Order, approved by the Attorney General, and registered by the
Comptroller of Public Accounts.
(c) Bonds
issued in conversion and exchange or replacement of any other Bond or portion
thereof (i) shall be issued in fully registered form,
without interest coupons, with the principal of and interest on such Bonds to
be payable only to the Owners thereof, (ii) may be redeemed prior to their
scheduled maturities to the extent permitted by this Order, (iii) may be
transferred and assigned, (iv) may be converted and exchanged for other Bonds,
(v) shall have the characteristics, (vi) shall be signed and sealed, and (vii)
the principal of and interest on the Bonds shall be payable, all as provided,
and in the manner required or indicated, in the Form of Bonds set forth in this
Order.
Section 3.08. Temporary Bonds.
(a) Following
the delivery and registration of the Initial Bond and pending the preparation
of definitive Bonds, the College may execute and, upon the College's request,
the Paying Agent/Registrar shall authenticate and deliver, one or more
temporary Bonds that are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any denomination, substantially of the tenor of the
definitive Bonds in lieu of which they are delivered, without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the College executing such temporary Bonds may determine, as
evidenced by their signing of such temporary Bonds.
(b) Until
exchanged for Bonds in definitive form, such Bonds in temporary form shall be entitled to
the benefit and security of this Order.
(c) The
College, without unreasonable delay, shall prepare, execute and deliver to the
Paying Agent/Registrar, and thereupon, upon the presentation and surrender of
the Bond or Bonds in temporary form to the Paying Agent/Registrar, the Paying
Agent/Registrar shall authenticate and deliver in exchange therefor
a Bond or Bonds of the same maturity and series, in definitive form, in the
authorized denomination, and in the same aggregate principal amount, as the
Bond or Bonds in temporary form surrendered.
Such exchange shall be made without the making of any charge therefor to any Owner.
Section 3.09. Replacement Bonds.
(a) Upon
the presentation and surrender to the Paying Agent/Registrar of a mutilated
Bond, the Paying Agent/Registrar shall authenticate and deliver in exchange therefor a replacement Bond of like tenor and principal
amount, bearing a number not contemporaneously outstanding. The College or the Paying Agent/Registrar may
require the Owner of such Bond to pay a sum sufficient to cover any tax or
other governmental charge that is authorized to be imposed in connection
therewith and any other expenses connected herewith.
(b) In
the event that any Bond is lost, apparently destroyed or wrongfully taken, the
Paying Agent/Registrar, pursuant to the applicable laws of the State of Texas
and in the absence of notice or knowledge that such Bond has been acquired by a
bona fide purchaser, shall authenticate and deliver a replacement Bond of like
tenor and principal amount, bearing a number not contemporaneously outstanding,
provided that the Owner first complies with the following requirements:
(i) furnishes
to the Paying Agent/Registrar satisfactory evidence of his or her ownership of
and the circumstances of the loss, destruction or theft of such Bond;
(ii)
furnishes such security or indemnity as may be
required by the Paying Agent/Registrar, and acceptable to the College, to save
the Paying Agent/Registrar and the College harmless;
(iii) pays all expenses and charges in connection
therewith, including, but not limited to, printing costs, legal fees, fees of
the Paying Agent/Registrar and any tax or other governmental charge that is
authorized to be imposed; and
(iv)
satisfies any other reasonable requirements
imposed by the College and Paying Agent/Registrar.
(c) If,
after the delivery of such replacement Bond a bona fide purchaser of the
original Bond in lieu of which such replacement Bond was issued presents for
payment such original Bond, the College and the Paying Agent/Registrar shall be
entitled to recover such replacement Bond from the person to whom it was
delivered or any person taking therefrom, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the College or the Paying Agent/Registrar
in connection therewith.
(d) In
the event that any such mutilated, lost, apparently destroyed or wrongfully
taken Bond has become or is about to become due and payable, the Paying
Agent/Registrar, in its discretion, instead of issuing a replacement Bond may
pay such Bond.
(e) Each
replacement Bond delivered in accordance with this Section shall constitute an
original additional contractual obligation of the College and shall be entitled
to the benefits and security of this Order to the same extent as the Bond or
Bonds in lieu of which such replacement Bond is delivered.
Section 3.10. Book-Entry-Only System.
(a) The
definitive Bonds shall be initially issued in the form of a separate single
fully registered Bond for each of the maturities thereof. Upon initial issuance, the ownership of each
such Bond shall be registered in the name of Cede & Co., as nominee of DTC,
and except as provided in Section 3.11 hereof, all of the outstanding Bonds
shall be registered in the name of Cede & Co., as nominee of DTC.
(b) With
respect to Bonds registered in the name of Cede & Co., as nominee of DTC,
the College and the Paying Agent/Registrar shall have no responsibility or
obligation to any DTC Participant or to any person on behalf of whom such a DTC
Participant holds an interest in the Bonds, except as provided in this Order.
Without limiting the immediately preceding sentence, the College and the Paying
Agent/Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co., or
any DTC Participant with respect to any ownership interest in the Bonds, (ii)
the delivery to any DTC Participant or any other person, other than an Owner,
as shown on the Register, of any notice with respect to the Bonds, including
any notice of redemption, or (iii) the payment to any DTC Participant or any
other person, other than an Owner, as shown in the Register of any amount with
respect to principal of or interest on the Bonds. Notwithstanding any other provision of this
Order to the contrary, the College and the Paying Agent/Registrar shall be
entitled to treat and consider the person in whose name each Bond is registered
in the Register as the absolute Owner of such Bond for the purpose of payment
of principal of and interest on the Bonds, for the purpose of giving notices of
redemption and other matters with respect to such Bond, for the purpose of
registering transfer with respect to such Bond, and for all other purposes
whatsoever. The Paying Agent/Registrar
shall pay all principal of and interest on the Bonds only to or upon the order
of the respective Owners, as shown in the Register as provided in this Order,
or their respective attorneys duly authorized in writing, and all such payments
shall be valid and effective to fully satisfy and discharge the College's
obligations with respect to payment of and interest on the Bonds to the extent
of the sum or sums so paid. No person
other than an Owner, as shown in the Register, shall receive a certificate
evidencing the obligation of the College to make payments of amounts due
pursuant to this Order. Upon delivery by
DTC to the Paying Agent/Registrar of written notice to the effect that DTC has
determined to substitute a new nominee in place of Cede & Co., and subject
to the provisions in this Order with respect to interest checks or drafts being
mailed to the Registered Owner at the close of business on the Record Date, the
word "Cede & Co." in this Order shall refer to such new nominee
of DTC.
Section 3.11. Successor Securities Depository; Transfer Outside Book-Entry-Only System. In the event that the College in its sole
discretion determines that the Owners of the Bonds should be able to obtain
certificated Bonds, or in the event DTC discontinues the services described
herein, the College or the Paying Agent/Registrar shall (i)
appoint a successor securities depository, qualified to act as such under
Section 17(a) of the Securities and Exchange Act of 1934, as amended; notify
DTC and DTC Participants, as identified by DTC, of the appointment of such
successor securities depository and transfer one or more separate Bonds to such
successor securities depository; or (ii) notify DTC and DTC Participants, as
identified by DTC, of the availability through DTC of Bonds and transfer one or
more separate Bonds to DTC Participants having Bonds credited to their DTC
accounts, as identified by DTC. In such
event, the Bonds shall no longer be restricted to being registered in the
Register in the name of Cede & Co., as nominee of DTC, but may be
registered in the name of the successor securities depository, or its nominee,
or in whatever name or names Owners transferring or exchanging Bonds shall
designate, in accordance with the provisions of this Order.
Section 3.12. Payments to Cede &
Section 3.13. Additional Obligations. The College reserves the right to issue any
additional obligations authorized by law and such obligations may be payable
from ad valorem taxes within the limits prescribed by
law.
ARTICLE
IV
REDEMPTION
OF BONDS BEFORE MATURITY
Section 4.01. Limitation on Redemption. The Bonds shall be subject to redemption
before scheduled maturity only as provided in this Article IV.
Section 4.02. Optional Redemption.
(a) The
College reserves the option to redeem Bonds maturing on and after August 1,
2015, in whole or in part, before their respective scheduled maturity dates, on
August 1, 2014, or on any date thereafter (such redemption date or dates to be
fixed by the College) at a price equal to the principal amount of the Bonds
called for redemption plus accrued interest to the date fixed for redemption.
(b) The
College, at least forty-five (45) days before the redemption date (unless a
shorter period shall be satisfactory to the Paying Agent/Registrar), shall
notify the Paying Agent/Registrar of such redemption date and the amounts
thereof to be redeemed.
Section 4.03. Mandatory Redemption.
The Bonds maturing in the years 2029
and 2034 (the "Term Bonds") are subject to mandatory redemption prior
to maturity at the price of par and accrued interest and shall be redeemed, in
part, on the dates and in the principal amounts set forth below:
$4,765,000
Term Bonds Due
$7,500,000
Term Bonds Due
On or prior to each June 1,
immediately preceding each of the years specified above that the Term Bonds are
to be mandatorily redeemed, the Paying Agent shall
select by lot the numbers of the Term Bonds within the applicable maturity to
be redeemed on the next following August 1 from moneys set aside for that
purpose in the Interest and Sinking Fund.
Any Term Bonds not selected for prior redemption shall be paid on the
date of their stated maturity.
The principal amount of the Term
Bonds required to be redeemed pursuant to the operation of such mandatory
redemption provisions may be reduced, at the option of the District, by the
principal amount of the Term Bonds of the same maturity which at least fifty
(50) days prior to a mandatory redemption date (i)
shall have been defeased or acquired by the District
at a price not exceeding the principal amount of such Term Bonds plus accrued
interest to the date of purchase and delivered to the Paying Agent/Registrar
for cancellation or (ii) shall have been purchased and canceled by the Paying
Agent/Registrar at the request of the District with money in the Interest and
Sinking Fund.
Section 4.04. Partial Redemption.
(a) If
less than all of the Bonds are to be redeemed and if less than all of a
maturity is to be redeemed, the Paying Agent/Registrar shall determine by lot
or other random method the Bonds, or portions thereof, within such maturity to
be redeemed.
(b) A
portion of a single Bond of a denomination greater than $5,000 may be redeemed,
but only in a principal amount equal to $5,000 or any integral multiple
thereof. If such a Bond is to be
partially redeemed, the Paying Agent/Registrar shall treat each $5,000 portion
of the Bond as though it were a single Bond for purposes of selection for
redemption.
(c) Upon
surrender of any Bond for redemption in part, the Paying Agent/Registrar, in
accordance with Section 3.06 of this Order, shall authenticate and deliver an
exchange Bond or Bonds in an aggregate principal amount equal to the unredeemed
portion of the Bond so surrendered, such exchange being without charge,
notwithstanding any provision of Section 3.06 to the contrary.
(d) The
Paying Agent/Registrar shall promptly notify the College in writing of the
principal amount to be redeemed of any Bond as to which only a portion thereof
is to be redeemed.
Section 4.05. Notice of Redemption to
Owners.
(a) The
Paying Agent/Registrar shall give notice of any redemption of Bond by sending
notice by first class United States mail, postage prepaid, not less than thirty
(30) days before the date fixed for redemption, to the Owner of each Bond (or
part thereof) to be redeemed, at the address shown on the Register at the close
of business on the business day next preceding the dates of mailing.
(b) The
notice shall state the redemption date, the redemption price, the place at
which the Bonds are to be surrendered for payment, and, if less than all the
Bonds outstanding are to be redeemed, an identification of the Bonds or
portions thereof to be redeemed.
(c) Any
notice given as provided in this Section shall be conclusively presumed to have
been duly given, whether or not the Owner receives such notice. Further, the
failure to send, mail or receive such notice or any defect therein or in the
sending or mailing thereof, shall not affect the validity or effectiveness of
the proceedings for the redemption of any Bond, and the notice as described in
(b) above shall be the only notice actually required in connection with or as a
prerequisite to the redemption of any Bonds.
Section
4.06. Payment Upon Redemption.
(a) Before
or on each redemption date, the College shall deposit with the Paying
Agent/Registrar money sufficient to pay all amounts due on the redemption date
and the Paying Agent/Registrar shall make provision for the payment of the
Bonds to be redeemed on such date by setting aside and holding in trust such
amounts received by the Paying Agent/Registrar from the College and shall use
such funds solely for the purpose of paying the principal of and accrued
interest on the Bonds being redeemed.
(b) Upon
presentation and surrender of any Bond called for redemption at the Designated
Payment/Transfer Office of the Paying Agent/Registrar on or after the date
fixed for redemption, the Paying Agent/Registrar shall pay the principal of and
accrued interest on such Bond to the date of redemption from the money set
aside for such purpose.
Section 4.07. Effect of Redemption.
(a) Notice
of redemption having been given as provided in Section 4.05 of this Order, the
Bonds or portions thereof called for redemption shall become due and payable on
the date fixed for redemption and, unless the College defaults in its
obligation to make provision for the payment of the principal thereof or
accrued interest thereon, such Bonds or portions thereof shall cease to bear
interest from and after the date fixed for redemption, whether or not such
Bonds are presented and surrendered for payment on such date.
(b) If
the College shall fail to make provision for payment of all sums due on a
redemption date, then any Bond or portion thereof called for redemption shall
continue to bear interest at the rate stated on the Bond until paid or until
due provision is made for the payment of same by the College.
ARTICLE
V
PAYING
AGENT/REGISTRAR
Section 5.01. Appointment of Initial
Paying Agent/Registrar.
(a) The
College hereby appoints JPMorgan Chase Bank, as its
registrar and transfer agent to keep such books or records and make such
transfers and registrations under such reasonable regulations as the College
and the Paying Agent/Registrar may prescribe; and the Paying Agent/Registrar
shall make such transfers and registrations as herein provided. It shall be the duty of the Paying
Agent/Registrar to obtain from the Owners and record in the Register the
address of such Owner of each Bond to which payments with respect to the Bonds
shall be mailed, as provided herein. The
College or its designee shall have the right to inspect the Register during
regular business hours of the Paying Agent/Registrar, but otherwise the Paying
Agent/Registrar shall keep the Register and other registration books and
records confidential and, unless otherwise required by law, shall not permit
their inspection by any other entity.
(b) The
College hereby further appoints the Paying Agent/ Registrar to act as the
paying agent for paying the principal of and interest on the Bonds. The Paying
Agent/Registrar shall keep proper records of all payments made by the College
and the Paying Agent/Registrar with respect to the Bonds and of all
conversions, exchanges and replacements of such Bonds, as provided in the
Order.
Section 5.02. Qualifications. Each Paying Agent/Registrar shall be (i) a banking corporation, a banking association or a
financial institution organized and doing business under the laws of the
Section 5.03. Maintaining Paying
Agent/Registrar.
(a) At
all times while any Bonds are outstanding, the College will maintain a Paying
Agent/Registrar that is qualified under Section 5.02 of this Order. The President of the Board of Trustees of the
College is hereby authorized and directed to execute an agreement with the
Paying Agent/Registrar specifying the duties and responsibilities of the
College and the Paying Agent/Registrar.
The signature of the President of the Board of Trustees of the College
shall be attested by the Secretary of the Board of Trustees.
(b) If
the Paying Agent/Registrar resigns or otherwise ceases to serve as such, the
College will promptly appoint a replacement.
Section 5.04. Termination. The College, upon not less than sixty (60)
days notice, reserves the right to terminate the appointment of any Paying Agent/Registrar
by delivering to the entity whose appointment is to be terminated written
notice of such termination.
Section 5.05. Notice of Change to
Owners. Promptly upon each
change in the entity serving as Paying Agent/Registrar, the College will cause
notice of the change to be sent to each Owner by first class United States
mail, postage prepaid, at the address in the Register, stating the effective
date of the change and the name and mailing address of the replacement Paying
Agent/Registrar.
Section 5.06. Agreement to Perform
Duties and Functions. By
accepting the appointment as Paying Agent/Registrar, the Paying Agent/Registrar
is deemed to have agreed to the provisions of this Order and that it will
perform the duties and functions of Paying Agent/Registrar prescribed hereby.
Section 5.07. Delivery of Records to
Successor. If a Paying
Agent/Registrar is replaced, such replaced Paying Agent/Registrar, promptly
upon the appointment of the successor, will deliver the Register (or a copy
thereof) and all other pertinent books and records relating to the Bonds to the
successor Paying Agent/Registrar.
ARTICLE
VI
FORM
OF THE BONDS
Section 6.01. Forms Generally.
(a) The
Bonds, including the Registration Certificate of the Comptroller of Public
Accounts of the State of Texas, the Certificate of Paying Agent/Registrar, and
the Assignment form to appear on each of the Bonds, (i)
shall be substantially in the form set forth in this Article, with such
appropriate insertions, omissions, substitutions, and other variations as are
permitted or required by this Order, and (ii) may have such letters, numbers,
or other marks of identification (including identifying numbers and letters of
the Committee on Uniform Securities Identification Procedures of the American
Bankers Association) and such legends and endorsements (including any
reproduction of an opinion of counsel) thereon as, consistently herewith, may
be determined by the College or by the officers executing such Bonds as
evidenced by their execution thereof.
(b) Any
portion of the text of any Bonds may be set forth on the reverse side thereof,
with an appropriate reference thereto on the face of the Bonds.
(c) The
definitive Bonds shall be typed, printed, lithographed, or engraved, and may be
produced by any combination of these methods or produced in any other similar
manner, all as determined by the officers executing such Bonds as evidenced by
their execution thereof.
(d) The
Initial Bond submitted to the Attorney General of the State of
Section 6.02. Form of the Bonds. The form of the Bonds, including the form of
the Registration Certificate of the Comptroller of Public Accounts of the State
of
(a) Form
of Definitive Bonds.
REGISTERED REGISTERED
PRINCIPAL
NO. R-___ AMOUNT
$__________
State
of
AUSTIN
COMMUNITY COLLEGE DISTRICT
LIMITED
TAX BOND
SERIES
2004
Issue Date: Interest
Rate: Stated Maturity: CUSIP
No.:
Registered Owner:
Principal Amount: DOLLARS
Austin
Community College District (hereinafter referred to as the "College"
or “District”), for value received, acknowledges itself indebted to and hereby
promises to pay to the order of the Registered Owner named above, or the
registered assigns thereof, on the Stated Maturity date specified above the
Principal Amount hereinabove stated (or so much thereof as shall not have been
paid upon prior redemption), and to pay interest on the unpaid principal amount
hereof from the Issue Date at the per annum rate of interest specified above
computed on the basis of a 360-day year of twelve 30-day months; such interest
being payable on February 1 and August 1 in each year, commencing February 1,
2005. Principal of this Bond is payable at
its Stated Maturity or redemption to the Registered Owner hereof, upon
presentation and surrender, at the Designated Payment/Transfer Office of the
Paying Agent/Registrar executing the registration certificate appearing hereon,
or its successor. Interest is payable to
the Registered Owner of this Bond whose name appears on the
"Register" maintained by the Paying Agent/Registrar at the close of
business on the "Record Date," which is the fifteenth day of the
month next preceding each Interest Payment Date, and interest shall be paid by
the Paying Agent/Registrar by check sent by United States mail, first class
postage prepaid, to the address of the Registered Owner recorded in the
Register or by such other method, acceptable to the Paying Agent/Registrar,
requested by, and at the risk and expense of, the Registered Owner. All payments of principal of and interest on
this Bond shall be without exchange or collection charges to the Owner hereof
and in any coin or currency of the
This
Bond is one of the series specified in its title issued in the aggregate
principal amount of $23,910,000 (herein referred to as the "Bonds")
for the purpose of construction, renovation and equipment of College buildings
District-wide (including Phase 2 of the Health Careers Building at the Eastview Campus, construction of the South Austin Campus,
expansion of the Cypress Creek Campus,
renovations and improvements of the Rio Grande Campus, renovations District-wide,
including student parking, and such other improvements as determined by the
District) and costs of issuance.
The
Bonds maturing on and after August 1, 2015, may be redeemed on August 1, 2014,
or any date thereafter, prior to their Stated Maturities, at the option of the
College, in whole or in part, in principal amounts of $5,000 or any integral
multiple thereof (and if within a Stated Maturity selected by lot by the Paying
Agent/Registrar), at the redemption price of par, together with accrued
interest to the date of redemption and upon 30 days prior written notice being
sent by United States mail, first class postage prepaid, to the Registered
Owners of the Bonds to be redeemed, and subject to the terms and provisions
related thereto contained in the Order.
The
Bonds maturing in the years 2029 and 2034 (the "Term Bonds") are
subject to mandatory redemption prior to maturity at the price of par and
accrued interest and shall be redeemed, in part, on the dates and in the
principal amounts set forth below:
$4,765,000
Term Bonds Due
$7,500,000
Term Bonds Due
On or prior to each June 1,
immediately preceding each of the years specified above that the Term Bonds are
to be mandatorily redeemed, the Paying Agent shall
select by lot the numbers of the Term Bonds within the applicable maturity to
be redeemed on the next following August 1 from moneys set aside for that
purpose in the Interest and Sinking Fund.
Any Term Bonds not selected for prior redemption shall be paid on the
date of their stated maturity.
If this Bond (or any portion of the
principal sum hereof) shall have been duly called for redemption and notice of
such redemption duly given, then upon such redemption date this Bond (or the
portion of the principal sum hereof to be redeemed) shall become due and
payable, and interest thereon shall cease to accrue from and after the
redemption date therefor, provided moneys for the
payment of the redemption price and the interest on the principal amount to be
redeemed to the date of redemption are held for the purpose of such payment by
the Paying Agent/Registrar.
In the event of a partial redemption
of the principal amount of this Bond, payment of the redemption price of such
principal amount shall be made to the Registered Owner only upon presentation
and surrender of this Bond to the Paying Agent/Registrar at its Designated
Payment/Transfer Office, and there shall be issued to the Registered Owner
hereof, without charge, a new Bond or Bonds of like maturity and interest rate
in any authorized denominations provided by the Order for the then unredeemed
balance of the principal sum hereof. If
this Bond is selected for redemption, in whole or in part, the College and the
Paying Agent/Registrar shall not be required to transfer this Bond to an
assignee of the Registered Owner within 45 days of the redemption date therefor; provided, however, such limitation on
transferability shall not be applicable to an exchange by the Registered Owner
of the unredeemed balance hereof in the event of its redemption in part.
The Bonds are payable from the
proceeds of an ad valorem tax levied, within the
limits prescribed by law, upon all taxable property in the College. Reference is hereby made to the Order, a copy
of which is on file in the Designated Payment/Transfer Office of the Paying
Agent/Registrar, and to all of the provisions of which the Owner or Holder of
this Bond by the acceptance hereof hereby assents, for definitions of terms;
the description of and the nature and extent of the tax levied and pledged for
the payment of the Bonds; the terms and conditions relating to the transfer or
exchange of this Bond; the rights, duties, and obligations of the College and
the Paying Agent/Registrar; the terms and provisions upon which this Bond may
be discharged at or prior to its maturity, and deemed to be no longer
outstanding thereunder; and for other terms and
provisions contained therein.
Capitalized terms used herein have the meanings assigned in the Order.
This Bond, subject to certain
limitations contained in the Order, may be transferred on the Register only
upon its presentation and surrender at the Designated Payment/Transfer Office
of the Paying Agent/Registrar, with the Assignment hereon duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Paying Agent/Registrar duly executed by, the Registered Owner hereof, or his
duly authorized agent. When a transfer
on the Register occurs, one or more new fully registered Bonds of the same
Stated Maturity, of authorized denominations, bearing the same rate of interest, and of the same aggregate principal amount will be
issued by the Paying Agent/Registrar to the designated transferee or
transferees.
The College and the Paying
Agent/Registrar, and any agent of either, shall treat the Registered Owner
whose name appears on the Register (i) on the Record
Date as the owner entitled to payment of interest hereon, (ii) on the date of
surrender of this Bond as the owner entitled to payment of principal at the
Stated Maturity, or its redemption, in whole or in part, and (iii) on any other
date as the owner for all other purposes, and neither the College nor the
Paying Agent/Registrar, or any agent of either, shall be affected by notice to
the contrary. In the event of nonpayment
of interest on a Bond on a scheduled payment date and for thirty (30) days
thereafter, a new record date for such interest payment (a "Special Record
Date") will be established by the Paying Agent/Registrar, if and when
funds for the payment of such interest have been received from the
College. Notice of the Special Record
Date and of the scheduled payment date of the past due interest (which shall be
15 days after the Special Record Date) shall be sent at least five (5) business
days prior to the Special Record Date by United States mail, first class
postage prepaid, to the address of each owner of a Bond appearing on the
Register at the close of business on the last business day next preceding the
date of mailing of such notice.
IT IS HEREBY CERTIFIED AND RECITED
that the issuance of this Bond and the series of which it is a part is duly
authorized by law; that all acts, conditions and things to be done precedent to
and in the issuance of this Bond and the series of which it is a part, have
been properly done, have happened and have been performed in regular and due
time, form and manner as required by law; that proper provisions have been made
for the levy and collection annually of taxes upon all taxable property in said
College sufficient, within the limits prescribed by law, to pay the interest on
this Bond and the series of which it is a part as due and to provide for the
payment of the principal as the same matures; and that the total indebtedness
of the College, including the Bonds does not exceed any constitutional or
statutory limitation.
IN WITNESS WHEREOF this Bond has
been signed with the manual or facsimile signature of the President of the
Board of Trustees of the College and countersigned with the manual or facsimile
signature of the Secretary of the Board of Trustees, and the official seal of
the College has been duly impressed, or placed in facsimile, on this Bond.
DISTRICT
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Secretary,
Board of Trustees President,
Board of Trustees
[COLLEGE'S
SEAL]
(b) Form
of Comptroller's Registration Certificate.
The following Comptroller's Registration Certificate may be deleted from
the definitive Bonds if such certificate on the Initial Bond is fully executed.
OFFICE OF THE COMPTROLLER §
OF PUBLIC ACCOUNTS §
REGISTER NO. _____________
OF THE STATE OF
I hereby certify that there is on
file and of record in my office a Certificate of the Attorney General of the
State of Texas to the effect that this Bond has been examined by him as
required by law, that he finds that it has been issued in conformity with the
Constitution and laws of the State of Texas, and that this Bond has this day
been registered by me.
Witness my hand and seal of office
at
[SEAL] Comptroller
of Public Accounts
of the State of
(c) Form
of Certificate of Paying Agent/Registrar.
The following Certificate of Paying Agent/Registrar may be deleted from
the Initial Bond if the Comptroller's Registration Certificate appears thereon.
CERTIFICATE
OF PAYING AGENT/REGISTRAR
The records of the Paying
Agent/Registrar show that the Initial Bond of this series of Bonds was approved
by the Attorney General of the State of
JPMORGAN
CHASE BANK
As
Paying Agent/Registrar
Dated: _________________ By:
Authorized
Signatory
(d) Form
of Assignment.
ASSIGNMENT
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns, and transfers unto / / (Please
print or typewrite name and address, including zip code, of Transferee) (Please insert Social Security or Taxpayer
Identification Number)
the within Bond and all rights thereunder,
and hereby irrevocably constitutes and appoints attorney to register the transfer of the
within Bond on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
Signature
Guaranteed:
NOTICE:
Signature(s) must be NOTICE: The signature above
guaranteed by an
eligible must
correspond with the name
guarantor institution
as of
the Registered Owner as it
defined by SEC Rule
17Ad-15 appears
upon the front of this
(17
CFR 240-17Ad-15). Bond
in every particular, with-
out alteration or enlargement or
any change whatsoever.
The following abbreviations, when
used in the Assignment above or on the face of the within Bond, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM - as tenants in
common
TEN ENT - as tenants by
the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN
ACT - Custodian
(Cust) (Minor)
under Uniform Gifts
to Minors Act
(State)
Additional
abbreviations may also be used though not in the list above.
(e) The
Initial Bond shall be in the respective form set forth therefor
in paragraph (a) of this Section, except as follows: Heading and paragraph one shall be amended to
read as follows:
(i) Form of Initial Bond
REGISTERED
No. T-1 $23,910,000
State
of
AUSTIN
COMMUNITY COLLEGE DISTRICT
LIMITED
TAX BOND
SERIES
2004
Issue Date: CUSIP
No.:
Registered
Owner:
Principal
Amount: TWENTY-THREE MILLION NINE
HUNDRED TEN THOUSAND DOLLARS
The Austin Community College
District (hereinafter referred to as the "College" or “District”),
for value received, acknowledges itself indebted to and hereby promises to pay
to the order of the Registered Owner named above, or the registered assigns
thereof, the Principal Amount hereinabove stated on August 1 in the years and
in principal installments in accordance with the following schedule:
YEAR
OF PRINCIPAL INTEREST
MATURITY AMOUNT RATE
(Information
to be inserted from
schedule in Section
3.02 hereof.)
(or so much
principal thereof as shall not have been prepaid prior to maturity) and to pay
interest on the unpaid principal installments hereof from the Issue Date at the
per annum rates of interest specified above computed on the basis of a 360-day
year of twelve 30-day months; such interest being payable on February 1 and
August 1 in each year, commencing February 1, 2005. Principal installments of this Bond are
payable in the year of maturity or on a prepayment date to the Registered Owner
hereof by JPMorgan Chase Bank (the "Paying
Agent/Registrar"), upon presentation and surrender, at its Designated
Payment/Transfer Office in Dallas, Texas.
Interest is payable to the Registered Owner of this Bond whose name
appears on the "Register" maintained by the Paying Agent/Registrar at
the close of business on the "Record Date," which is the fifteenth
day of the month next preceding each Interest Payment Date, and interest shall
be paid by the Paying Agent/Registrar by check sent by United States mail,
first class postage prepaid, to the address of the Registered Owner recorded in
the Register or by such other method, acceptable to the Paying Agent/Registrar,
requested by, and at the risk and expense of, the Registered Owner. All payments of principal of and interest on
this Bond shall be without exchange or collection charges to the Owner hereof
and in any coin or currency of the
Section 6.03. CUSIP Registration. The College may secure identification numbers
("CUSIP Numbers") and may authorize the printing of such numbers on
the face of the Bonds. It is expressly
provided, however, that the presence or absence of CUSIP Numbers on the Bonds
shall be of no significance or effect as regards the legality thereof and
neither the College nor the attorneys approving said Bonds as to legality are
to be held responsible for CUSIP Numbers incorrectly printed on the Bonds.
Section 6.04. Legal Opinion. The legal opinion of Bickerstaff, Heath,
Smiley, Pollan, Kever &
McDaniel, L.L.P., Bond Counsel, may be printed on the reverse side of each Bond
or may be attached to each Bond.
Section 6.05. Statement of Insurance. A statement relating to a municipal bond
insurance policy, if any, to be issued for the Bonds may be printed on each
Bond.
ARTICLE
VII
Section 7.01.
Section 7.02. Approval of Official
Statement. The form and
substance of the Official Statement for the Bonds and any addenda, supplement
or amendment thereto (the "Official Statement") presented to and
considered at this meeting are hereby in all respects approved and
adopted. The President of the Board and
the Secretary of the Board are hereby authorized and directed to execute the
same and deliver appropriate numbers of executed copies thereof to the
Underwriters. The use and distribution
of the Preliminary Official Statement by the Underwriters, is hereby ratified,
approved and confirmed and is hereby deemed final as of its date (except for
the omission of pricing and related information) within the meaning and for the
purposes of paragraph (b)(1) of Rule 15c2-12 under the
Securities Exchange Act of 1934, as amended, by the Board. The Underwriters are hereby authorized to use
and distribute the Official Statement in reoffering, sale, and delivery of the
Bonds to the public. The Secretary of
the Board is hereby authorized and directed to include and maintain a copy of
the Official Statement and any addenda, supplement or amendment thereto thus
approved among the permanent records of this meeting.
Section 7.03. Control and Delivery of
Bonds.
(a) The
President of the Board is hereby authorized to have control of the Initial Bond
and all necessary records and proceedings pertaining thereto pending
investigation, examination and approval of the Attorney General of the State of
Texas, registration by the
Comptroller of Public Accounts of the State and registration
with, and initial exchange or transfer by, the Paying Agent/Registrar.
(b) After
registration by the Comptroller of Public Accounts, delivery of the Bonds shall
be made to the Underwriters under and subject to the general supervision and
direction of the President of the Board, against receipt by the College of all
amounts due to the College under the terms of sale.
ARTICLE
VIII
INVESTMENTS
Section 8.01. Investments.
(a) Money
in the Interest and Sinking Fund and in the Construction Fund, at the option of
the College, may be invested in such securities or obligations as permitted
under applicable law.
(b) Any
securities or obligations in which such money is so invested shall be kept and
held in trust for the benefit of the Owners and shall be sold and the proceeds
of sale shall be timely applied to the making of all payments required to be
made from the fund from which the investment was made.
Section 8.02. Investment Income. Interest and income derived from investment
of the Interest and Sinking Fund shall be credited to such Fund. Interest and income derived from the
investment of the Construction Fund shall be credited to such Fund and used for
the purposes set out in Section 3.01; provided, however, that such interest
earnings may be deposited into the Interest and Sinking Fund at the option of
the College and shall be so deposited when the project is complete as provided
in Section 2.04(c).
ARTICLE
IX
PARTICULAR
REPRESENTATIONS AND COVENANTS
Section 9.01. Payment of the Bonds. On or before each Interest Payment Date of
the Bonds and while any of the Bonds are outstanding and unpaid, there shall be
made available to the Paying Agent/Registrar, out of the Interest and Sinking
Fund, money sufficient to pay such interest on and principal of the Bonds as
will accrue or mature on the applicable Interest Payment Date.
Section 9.02. Federal Tax Covenants. The College covenants to take any action to
maintain, or refrain from any action which would adversely affect, the
treatment of the Bonds as obligations described in section 103 of the Internal
Revenue Code of 1986, as amended (the "Code"), the interest on which
is not includable in "gross income" for federal income tax
purposes. In furtherance thereof, the
College specifically covenants as follows:
(a) To
refrain from taking any action which would result in the Bonds being treated as
"private activity bonds" within the meaning of section 141(a) of the
Code;
(b) To
take any action to assure that no more than 10% of the proceeds of the Bonds or
the projects financed therewith are used for any "private business
use," as defined in section 141(b)(6) of the Code or, if more than 10% of
the proceeds or the projects financed therewith are so used, that amounts,
whether or not received by the College with respect to such private business
use, do not under the terms of this Order or any underlying arrangement,
directly or indirectly, secure or provide for the payment of more than 10% of
the debt service on the Bonds, in contravention of section 141(b)(2) of the
Code;
(c) To
take any action to assure that in the event that the "private business
use" described in paragraph (b) hereof exceeds 5% of the proceeds of the
Bonds or the projects financed therewith, then the amount in excess of 5% is
used for a "private business use" which is "related" and
not "disproportionate," within the meaning of section 141(b)(3) of the Code, to the governmental use;
(d) To
take any action to assure that no amount which is greater than the lesser of
$5,000,000 or 5% of the proceeds of the Bonds is directly or indirectly used to
finance loans to persons, other than state or local governmental units, in
contravention of section 141(c) of the Code;
(e) To
refrain from taking any action which would result in the Bonds being
"federally guaranteed" within the meaning of section 149(b) of the
Code;
(f) Except
to the extent permitted by section 148 of the Code and the regulations and
rulings thereunder, to refrain from using any portion
of the proceeds of the Bonds, directly or indirectly, to acquire or to replace
funds which were used, directly or indirectly, to acquire investment property
(as defined in section 148(b)(2) of the Code) which
produces a materially higher yield over the term of the Bonds;
(g) To
otherwise restrict the use of the proceeds of the Bonds or amounts treated as
proceeds of the Bonds, as may be necessary, so that the Bonds do not otherwise
contravene the requirements of section 148 of the Code (relating to arbitrage)
and, to the extent applicable, section 149(d) of the Code (relating to advance refundings);
(h) Except
to the extent otherwise provided in section 148(f) of the Code and the
regulations and rulings thereunder, to pay to the
United States of America at least once during each five year period (beginning
on the date of delivery of the Bonds) an amount that is at least equal to 90% of
the "Excess Earnings," within the meaning of section 148(f) of the
Code, and to pay to the United States of America, not later than 60 days after
the Bonds have been paid in full, 100% of the amount then required to be paid
as a result of Excess Earnings under section 148(f) of the Code; and
(i) To maintain such records as will enable
the College to fulfill its responsibilities under this subsection and section
148 of the Code and to retain such records for at least six years following the
final payment of principal and interest on the Bonds.
For the
purposes of the foregoing, in the case of a refunding bond, the term proceeds
includes transferred proceeds and, for purposes of paragraphs (b) and (c),
proceeds of the refunded bonds.
The covenants contained herein are
intended to assure compliance with the Code and any regulations or rulings
promulgated by the U.S. Department of Treasury pursuant thereto. In the event that regulations or rulings are
hereafter promulgated which modify or expand provisions of the Code, as
applicable to the Bonds, the College will not be required to comply with any
covenant contained herein to the extent that such modification or expansion, in
the opinion of nationally-recognized bond counsel, will not adversely affect the
exclusion from gross income of interest on the Bonds under section 103 of the
Code. In the event that regulations or
rulings are hereafter promulgated which impose additional requirements which
are applicable to the Bonds, the College agrees to comply with the additional
requirements to the extent necessary, in the opinion of nationally-recognized
bond counsel, to preserve the exclusion from gross income of interest on the
Bonds under section 103 of the Code.
Proper officers of the College
charged with the responsibility of issuing the Bonds are hereby authorized and
directed to execute any documents, certificates, or reports required by the
Code and to make such elections, on behalf of the College, which may be
permitted by the Code as are consistent with the purpose for the issuance of
the Bonds.
The covenants and representations
made or required by this Section are for the benefit of the Owners and may be
relied upon by the Owners and Bond Counsel and Special Tax Counsel for the
College.
Notwithstanding any other provision
in this Order, to the extent necessary to preserve the exclusion from gross
income of interest on the Bonds under section 103 of the Code the covenants
contained in this subsection shall survive the later of the defeasance or discharge
of the Bonds.
Section 9.03. Covenants Regarding
Section 9.04. Other Representations
and Covenants.
(a) The
College will faithfully perform, at all times, any and all covenants,
undertakings, stipulations, and provisions contained in this Order and in each
Bond; the College will promptly pay or cause to be paid the principal of and
interest on each Bond on the dates and at the places and manner prescribed in
such Bond; and the College will, at the times and in the manner prescribed by
this Order, deposit or cause to be deposited the amounts of money specified by
this Order.
(b) The
College is duly authorized under the laws of the State of Texas to issue the
Bonds; all action on its part for the creation and issuance of the Bonds has
been duly and effectively taken; and the Bonds in the hands of the Owners
thereof are and will be valid and enforceable obligations of the College in
accordance with their terms.
ARTICLE
X
CONTINUING
DISCLOSURE UNDERTAKING
Section 10.01. Definitions. As used in this Article, the following terms
have the meanings ascribed to such terms below:
"MSRB" means the Municipal
Securities Rulemaking Board.
"NRMSIR" means each person
whom the SEC or its staff has determined to be a nationally recognized
municipal securities information repository within the meaning of the Rule from
time to time.
"Rule" means SEC Rule
15c2-12, as amended from time to time or officially interpreted by the SEC.
"SEC" means the United
States Securities and Exchange Commission.
"SID" means any person
designated by the State of
Section 10.02. Updated Information and
Data. The College shall provide annually to each NRMSIR and the SID,
within six months after the end of each fiscal year, financial information and
operating data with respect to the College of the general type included in the
final Official Statement authorized by Section 7.02 of this Order, in Tables 1
through 9 and 11 through 14, and in APPENDIX B.
The information to be provided will include audited financial
statements, if the audit is completed by the required time. If audited financial statements are not
available by the required time, the College will provide unaudited
financial statements at the required time and audited financial statements when
they become available. Any financial
statements so to be provided shall be prepared in accordance with the
accounting principles described in APPENDIX B to the Official Statement, or such
other accounting principles as the College may be required to employ from time
to time pursuant to State law or regulation.
If the College changes its fiscal
year, it will notify each NRMSIR and any SID of the change (and of the date of
the new fiscal year end) prior to the next date by which the College otherwise
would be required to provide financial information and operating data pursuant
to this Section.
The financial information and
operating data to be provided pursuant to this Section may be set forth in full
in one or more documents or may be included by specific reference to any
document (including an official statement or other offering document, if it is
available from the MSRB) that theretofore has been provided to each NRMSIR and
any SID or filed with the SEC.
Section 10.03. Material Event Notices. The College shall notify any SID and either
each NRMSIR or the MSRB, in a timely manner, of any of the following events
with respect to the Bonds, if such event is material within the meaning of the
federal securities laws:
1. Principal
and interest payment delinquencies;
2. Non-payment
related defaults;
3. Unscheduled
draws on debt service reserves reflecting financial difficulties;
4. Unscheduled
draws on credit enhancements reflecting financial difficulties;
5. Substitution of credit or liquidity
providers, or their failure to perform;
6. Adverse
tax opinions or events affecting the tax-exempt status of the Bonds;
7. Modifications
to rights of holders of the Bonds;
8. Bond
calls;
9. Defeasances;
10. Release,
substitution, or sale of property securing repayment of the Bonds; and
11. Rating
changes.
The College shall notify any SID and
either each NRMSIR or the MSRB, in a timely manner, of any failure by the
College to provide financial information or operating data in accordance with
Section 10.02 of this Article by the time required by such Article.
Section 10.04. Limitations,
Disclaimers, and Amendments.
The College shall be obligated to observe and perform the covenants
specified in this Article with respect to the College and the Bonds while, but
only while, the College remains an "obligated person" with respect to
the Bonds within the meaning of the Rule, except that the College in any event
will give notice required by Section 10.03 of this Article of any bond calls
and defeasance that cause the College to no longer be such an "obligated
person."
The provisions of this Article are
for the sole benefit of the Holders and Beneficial Owners of the Bonds, and
nothing in this Article, express or implied, shall give any benefit or any
legal or equitable right, remedy, or claim hereunder to any other person. The College undertakes to provide only the
financial information, operating data, financial statements, and notices which
it has expressly agreed to provide pursuant to this Article and does not hereby
undertake to provide any other information that may be relevant or material to
a complete presentation of the financial results, condition, or prospects of
the College or the State of Texas or hereby undertake to update any information
provided in accordance with this Article or otherwise, except as expressly
provided herein. The College does not
make any representation or warranty concerning such information or its
usefulness to a decision to invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE
COLLEGE BE LIABLE TO THE HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER
PERSON, IN CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY
BREACH BY THE COLLEGE, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY
COVENANT SPECIFIED IN THIS ARTICLE, BUT EVERY RIGHT AND REMEDY OF ANY SUCH
PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE
LIMITED TO AN ACTION FOR MANDAMUS OR
SPECIFIC PERFORMANCE.
No default by the College in
observing or performing its obligations under this Article shall comprise a
breach of or default under the Order for purposes of any other provision of
this Order.
Nothing in this Article is intended
or shall act to disclaim, waive, or otherwise limit the duties of the College
under federal and state securities laws.
The provisions of this Article may
be amended by the College from time to time to adapt to changed circumstances
resulting from a change in legal requirements, a change in law, or a change in
the identity, nature, status, or type of operations of the College, but only if
(1) the provisions of this Article, as so amended, would have permitted an
underwriter to purchase or sell Bonds in the primary offering of the Bonds in
compliance with the Rule, taking into account any amendments or interpretations
of the Rule to the date of such amendment, as well as such changed
circumstances, and (2) either (a) the Holders of a majority in aggregate
principal amount (or any greater amount required by any other provision of this
Order that authorizes such an amendment) of the Outstanding Bonds consent to
such amendment or (b) a Person that is unaffiliated with the College (such as
nationally recognized bond counsel) determines that such amendment will not
materially impair the interests of the Holders and Beneficial Owners of the
Bonds. If the College so amends the
provisions of this Article, it shall include with any amended financial information
or operating data next provided in accordance with Section 10.02 an
explanation, in narrative form, of the reasons for the amendment and of the
impact of any change in the type of financial information or operating data so
provided.
ARTICLE
XI
DEFAULT
AND REMEDIES
Section 11.01. Events of Default. Each of the following occurrences or events
for the purpose of this Order is hereby declared to be an "Event of
Default," to wit:
(i) the failure to
make payment of the principal of, redemption premium, if any, or interest on
any of the Bonds when the same becomes due and payable; or
(ii) default
in the performance or observance of any other covenant, agreement or obligation
of the College, the failure to perform which materially, adversely affects the
rights of the Owners, including but not limited to, their prospect or ability
to be repaid in accordance with this Order, and the continuation thereof for a
period of 60 days after notice of such default is given by any Owner to the
College.
Section 11.02. Remedies for Default.
(a) Upon
the happening of any Event of Default, then and in every case any Owner or an
authorized representative thereof, including but not limited to, a trustee or
trustees therefor, may proceed against the College
for the purpose of protecting and enforcing the rights of the Owners under this
Order, by mandamus or other suit, action or special proceeding in equity or at
law, in any court of competent jurisdiction, for any relief permitted by law,
including the specific performance of any covenant or agreement contained
herein, or thereby to enjoin any act or thing that may be unlawful or in
violation of any right of the Owners hereunder or any combination of such
remedies.
(b) It
is provided that all such proceedings shall be instituted and maintained for
the equal benefit of all Owners of Bonds then outstanding.
Section 11.03. Remedies Not Exclusive.
(a) No
remedy herein conferred or reserved is intended to be exclusive of any other
available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or
under the Bonds or now or hereafter existing at law or in equity; provided,
however, that notwithstanding any other provision of this Order, the right to
accelerate the debt evidenced by the Bonds shall not be available as a remedy
under this Order.
(b) The
exercise of any remedy herein conferred or reserved shall not be deemed a
waiver of any other available remedy.
ARTICLE
XII
DISCHARGE
Section 12.01. Discharge and Defeasance. If the College shall pay or cause to be paid,
the principal of, premium, if any, and interest on the Bonds, at the times and
in the manner stipulated in this Order, then the pledge of taxes levied under
this Order and all covenants, agreements, and other obligations of the College
to the Holders shall thereupon cease, terminate, and be discharged and
satisfied.
The Bonds, or any principal
amount(s) thereof, shall be deemed to have been paid within the meaning and
with the effect expressed above in this Section when (i)
money sufficient to pay in full such Bonds or the principal amount(s) thereof
at Stated Maturity or to the redemption date therefor,
together with all interest due thereon, shall have been irrevocably deposited
with and held in trust by the Paying Agent/Registrar, or an authorized escrow
agent, or (ii) Government Obligations shall have been irrevocably deposited in
trust with the Paying Agent/Registrar, or any trust company or commercial bank
that does not act as a depository for the College, which Government Obligations
have been certified by an independent accounting firm to mature as to principal
and interest in such amounts and at such times as will insure the availability,
without reinvestment, of sufficient money, together with any money deposited
therewith, if any, to pay when due the principal of and interest on such Bonds,
or the principal amount(s) thereof, on and prior to the Stated Maturity thereof
or (if notice of redemption has been duly given or waived or if irrevocable
arrangements therefor acceptable to the Paying
Agent/Registrar have been made) the redemption date thereof.
Any money so deposited with the
Paying Agent/Registrar, and all income from Government Obligations held in
trust by the Paying Agent/Registrar, or any trust company or commercial bank
that does not act as a depository for the College, pursuant to this Section
which is not required for the payment of the Bonds, or any principal amount(s)
thereof, or interest thereon with respect to which such money has been so
deposited shall be remitted to the College or deposited as directed by the
College. Furthermore, any money held by
the Paying Agent/Registrar for the payment of the principal of and interest on
the Bonds and remaining unclaimed for a period of three (3) years after the
Stated Maturity of the Bonds or applicable redemption date, such money shall be
reported and disposed of by the Paying Agent in accordance with the applicable
provisions of Texas law including, to the extent applicable, Title 6 of the
Texas Property Code, as amended.
Notwithstanding any other provision
of this Order to the contrary, the College hereby reserves the right, to be
exercised at the time of defeasance of the Bonds, to call for earlier
redemption those Bonds which have been defeased to
their maturity dates, if the College:
(a) in the proceeding providing for the firm banking and
financial arrangements expressly reserves the right to call the Bonds being defeased for earlier redemption;
(b) gives
notice of the reservation of that right to the Holders of the Bonds being defeased immediately following the making of firm banking
and financial arrangements; and
(c) directs that notice of the reservation be included in any
redemption notices that the College authorizes.
Section 12.02. Discharge by Deposit.
(a) The
College may discharge its obligation to pay the principal of, redemption
premium, if any, and interest on all or any portion of the Bonds and its
obligation to pay other sums payable or to become payable under this Order by
the College, including the compensation due or to become due the Paying
Agent/Registrar, in accordance with the following provisions:
(i) depositing or causing to be deposited with
the Paying Agent/Registrar an amount of money that, together with the interest
earned on or capital gains or profits to be realized from the investment of
such money, will be sufficient to pay the principal of, redemption premium, if
any, and accrued interest on such Bonds to maturity or to the date fixed for
prior redemption of such Bonds and to pay such other amounts as may be
reasonably estimated by the Paying Agent/Registrar to become payable under this
Order with respect to the Bonds being provided for, including the compensation
due or to become due the Paying Agent/Registrar; and
(ii)
providing the Paying Agent/Registrar with an
opinion of nationally recognized bond counsel acceptable to the Paying
Agent/Registrar to the effect that the deposit specified in subdivision (i) of this subsection (a) will not cause the interest on
any of the Bonds to become subject to federal income taxation.
(b) Subject
to subsection (c) of this Section, upon compliance with subsection (a) of this
Section, the Bonds for the payment of which provision is thus made shall no
longer be regarded as outstanding and unpaid, and the Paying Agent/Registrar,
upon receipt of a letter of instructions from the College requesting the same,
shall discharge and release the lien of this Order as to such Bonds and shall
execute and deliver to the College such releases or other instruments as shall
be requisite to release the lien hereof.
(c) Before
discharge and release of any portion of the lien of this Order pursuant to this
Section, the College shall make the following provisions with the Paying
Agent/Registrar:
(i) the establishment of
a separate escrow account fund with the Paying Agent/Registrar for the deposit
pursuant to subsection (a)(i) of this Section;
(ii)
the payment to the Owners at the date of maturity or at the date fixed
for prior redemption, as applicable, of the full amount to which the Owners of
the appropriate Bonds would be entitled by way of principal, redemption
premium, if any, and interest to the date of such maturity or prior redemption;
(iii) the investment of
such moneys by the Paying Agent/Registrar in securities or obligations maturing
in sufficient time, in the judgment of the Paying Agent/Registrar, to make
available the moneys required for such purposes;
(iv)
the sending of written notice by registered or certified United States
mail to the Owner of each appropriate Bond then outstanding within thirty (30)
days following the date of such deposit that such moneys are so available for
such payment; and
(v)
the payment to the College, periodically or following final payment of
the principal of, redemption premium, if any, and interest on the appropriate
Bonds of any moneys, interest earnings, profits or capital gains over and above
the amounts necessary for such purposes.
(d) Notwithstanding
anything in this Order to the contrary, any money deposited in the escrow
account for the discharge and release of the lien of this Order shall be
invested in direct obligations of the
ARTICLE XIII
UNCLAIMED
PAYMENTS
Unclaimed Payments shall be
segregated in a special escrow account and held in trust, uninvested,
by the Paying Agent/Registrar for the account of the Owner of the Bonds to
which the Unclaimed Payments pertain.
Amounts held by the Paying Agent, which represent principal of and
interest on the Bonds remaining unclaimed by the Owner after the expiration of
three years from the date such amounts have become due and payable, shall be
reported and disposed of by the Paying Agent in accordance with the applicable
provisions of Texas law including, to the extent applicable, Title 6 of the
Texas Property Code, as amended.
ARTICLE XIV
MISCELLANEOUS
Section 14.01. Further Procedures. The President of the Board, the Secretary of
the Board, and all other officers, employees, and agents of the College, and
each of them, shall be and they are hereby expressly authorized, empowered, and
directed from time to time and at any time to do and perform all such acts and things
to execute, acknowledge and deliver in the name and under the official seal and
on behalf of the College all such instruments, whether or not herein mentioned,
as may be necessary or desirable in order to carry out the terms and provisions
of this Order, the Bonds and the Official Statement pertaining thereto. In case any officer whose facsimile signature
shall appear on any Bond shall cease to be such officer before the delivery of
the Bonds, such facsimile signature shall nevertheless be valid and sufficient
for all purposes the same as if he or she had remained in office until such
delivery.
Section 14.02. Public Meeting. It is officially found, determined, and
declared that the meeting at which this Order has been adopted was open to the
public and public notice of the time, place and subject matter of the public
business to be considered and acted upon at said meeting, including this Order,
was given, all as required by the applicable provisions of Chapter 551, Texas
Government Code.
[The remainder of this page is intentionally
left blank.]
FINALLY PASSED,
APPROVED AND EFFECTIVE this 7th day of June, 2004.
President,
Board of Trustees
Austin
Community College District
ATTEST:
Secretary, Board of Trustees
Austin Community College District
[SEAL]
*****
Agenda Item
7934
Appointments/Reappointments
to Advisory Committee on Finance and Budget
Chair Quintanilla introduced
the item. Ben Ferrell discussed the need to reappoint
the membership of the Committee and possibly appoint replacements. Dr. Mink stated that the Committee Chair
recommended appointment by Board Officers of three (3) committee members in
addition to the current membership.
Chair Quintanilla stated the need for the Resolution to be amended in
order to add three additional appointments.
Allen Kaplan stated he would
name a replacement; John Worley stated he would recommend reappointment of
Hunter Ellinger; and Jeffrey Richard stated he would
provide a name for membership.
Rafael Quintanilla suggested
action on this item be deferred until the Place 6 Board member was
elected. Mr. Quintanilla requested Ben
Ferrell to provide information to Trustees regarding the replacements needed.
Agenda Item
7935
South Austin
Campus
Chair Quintanilla introduced
the item and Bronson Dorsey, Associate Vice President for Facilities and
Operations, stated the bids on the balance of the project (architectural,
mechanical, electrical and landscape) were initially $5.5 to $5.75 million over
the original cost estimate of $21. He
stated additional discussions with American Constructors and Page Southerland
Page reduced the cost estimates to approximately $3 million over the original
estimate. Details were provided
concerning each of the various issues encountered in the planning and design
phase of the project, as well as potential solutions. He addressed possible delay in the
construction of the campus. Guadalupe
Sosa, Chair of the South Austin Advisory Committee, and Richard Cilley, Chair of the Facilities Committee of the South
Austin Advisory Committee, discussed the need for reconfiguring the building
design to ensure that programs are available to meet the needs of the
students. Trustees discussed redesign costs,
programs provided at the campus, programs to be moved to the South Austin
Campus from other campuses, and the need for additional information.
Agenda Item
7939
Matter Related
to Conduct of
Chair Quintanilla introduced the item. Linda Young, Elections Administrator, discussed the need to amend the Order regarding polling places and election officials and distributed materials concerning election workers including judges.
Allen Kaplan
moved and John Worley seconded that:
MOTION: The Board of Trustees approve
the Order Amending Polling Places and Appointing Officials for the
VOTE: The
motion passed on a unanimous vote of 7-0.
FOR: Lillian J. Davis, John
Hernandez, Allen Kaplan, Barbara Mink, Rafael Quintanilla, Jeffrey Richard, and
John Worley.
AGAINST: None.
Absent:
Trustees
Agenda Item
7936
Master Plan
Initiatives-Fiscal Years 2005-2007
Chair Quintanilla and Trustees agreed that an additional work session was needed before action could be taken on the Fiscal Year 2005 budget in July.
Agenda Item
7937
Review of
Tuition and Fees – Fiscal Year 2005
Chair Quintanilla introduced the item and Ben Ferrell
distributed revised information concerning the Fiscal Year 2005 Tuition and
Fees. He discussed funding issues
including significantly reduced State funding for higher education and stated
the need for
There was no Executive
Session.
Announcements
·
Vice Chair Barbara Mink stated that copies were available for Trustees
of the book from the Association of Community College Trustees entitled, “Community College Trustees—Leading on
Behalf of their Communities”. There
are three chapters to be read prior to the Board Retreat.
Meeting Review
Trustees
commented regarding the meeting:
What we did well: good
meeting, and I thought the discussion of budget was
particularly stimulating; I was stimulated also; reports were very good
although on the last report I did read the memo so I really didn’t need it
again; I’m waiting for a special meeting to see it all
put
together, it will make a lot more sense to me; thought we had a really good
meeting, tuition and the whole question of the budget—I think we have a long,
long road to climb; still learning.
What we can do better: No Comments.
Adjournment
Having
no motion before the Board, the June 7, 2004, Regular Meeting of the Austin
Community College Board of Trustees was adjourned at
Approved By
Allen
H. Kaplan, Secretary