TENDER AGENCY AGREEMENT

Transcription

1 TENDER AGENCY AGREEMENT This Tender Agent Agreement (this "Agreement") is made and entered into as of August 1, 2008, by and between the City of Arlington, Texas (the "City") and Wells Fargo Bank, National Association, as tender agent (the "Agent"). WITNESSETH WHEREAS, the City has authorized the issuance, sale and delivery of its Dallas Cowboys Complex Tax-Exempt Special Tax Bonds, Series 2005B (Multi-Modal) (the "Series 2005B Bonds") pursuant to the terms and conditions set forth in the City's Dallas Cowboys Complex Master Debt Ordinance (the "Master Ordinance") adopted by the City on July 5, 2005, as supplemented by the City's Second Supplemental Dallas Cowboys Complex Debt Ordinance adopted by the City on July 2, 2005, as amended by the First Amendment to Second Supplemental Debt Ordinance approved on July 26, 2005, as further amended by the Second Amendment to Second Supplemental Ordinance approved on July 29, 2008, and as supplemented by the First Supplement to Second Supplemental Debt Ordinance (as amended and supplemented, the "Second Supplemental Ordinance" and together with the Master Ordinance the "Ordinance"); WHEREAS, the Series 2005B Bonds were initially being issued in a Weekly Mode (as defined in the Ordinance); and WHEREAS, the City has exercised its option to convert the interest rate mode on the Series 2005B Bonds to a fixed rate mode; and WHEREAS, the Ordinance provides, among other things, that in connection with a conversion to a Fixed Rate Mode, the City shall appoint and employ the services of a tender agent; and WHEREAS, the City intends to and does hereby appoint Wells Fargo Bank, National Association, as the tender agent in accordance with the terms and conditions set forth in the Ordinance and in this Agreement; and WHEREAS, the Agent hereby accepts the appointment as tender agent and agrees to perform the duties of tender agent as set forth in the Ordinance and in this Agreement; and NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter contained, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I RULES AND INTERPRETATION Section 1.1 General. Terms used in this Agreement which are not defined herein have the meanings assigned to them in the Ordinance unless the context or use indicates another or different meaning or intent. Definitions shall be equally applicable to both the singular and - 1 -

2 plural forms of any of the words and terms therein or herein defined. The words "herein" and "hereof" and words of similar import, without reference to any particular article, section or subsection, refer to this Agreement as a whole rather than to any particular article, section or subsection hereof. The headings of articles and sections herein are for convenience of reference only and shall not affect the construction hereof. Section 1.2 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Texas. ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1 Agent's Representations and Warranties. The Agent hereby represents and warrants that as of the date of execution and delivery of this Agreement it has full power and authority to accept the appointment as Tender Agent and to execute, deliver, and perform this Agreement. Section 2.2 City's Representations and Warranties. The City hereby represents and warrants that as of the date of execution and delivery of this Agreement it has full power and authority to appoint the Agent as provided in the Ordinance, and to execute, deliver, and perform this Agreement. ARTICLE III DUTIES OF THE AGENT Section 3.1 Appointment; Acceptance of Duties. The Agent agrees to perform the duties and obligations of Tender Agent under the Ordinance (the "Duties"). The duties shall be determined solely by the express provisions of the Ordinance and this Agreement, and no implied covenant or obligation shall be read into the Ordinance or this Agreement against the Agent. Section 3.2 Rights and Immunities. The Agent in performing the Duties shall have all the rights and immunities (including, but not limited to, exculpations) of the Trustee as set forth in the Ordinance to the same extent and as fully for all intents and purposes as though the Agent had been expressly named therein in place of the Trustee, and as though the applicable provisions of Ordinance had been set forth at length herein. Section 3.3 Standard of Care. Neither the Agent nor any of its directors, employees or agents shall be liable for any action taken, suffered or omitted pursuant to this Agreement, except for gross negligence or willful misconduct. Notwithstanding anything to the contrary, the Agent shall not be responsible for any misconduct or negligence on the part of any agent, correspondent, attorney or receiver appointed with due care by it hereunder. The Agent may consult with counsel of its choice, including in-house counsel, and shall not be liable for any action taken in good faith in reliance upon advice of such counsel

3 Section 3.4 Indemnification. The City, to the extent provided by applicable Texas law, shall indemnify and hold harmless the Agent, its officers, directors, employees, attorneys, and agents against any liability or loss, cost, or expense, including attorneys' fees, which they may incur in the exercise and performance of the Duties and/or Additional Responsibilities (as defined in Section 3.5 hereof). This indemnification shall not be effective to relieve any indemnified party from its own gross negligence or willful misconduct. Section 3.5 Additional Responsibilities. If the City shall, in its discretion, ask the Agent to perform any duties not specifically set forth in this Agreement (the "Additional Responsibilities"), and the Agent chooses to perform such Additional Responsibilities, the Agent, when performing such Additional Responsibilities, shall be held to the standard of care and shall be entitled to all the rights and immunities (including, but not limited to, indemnification) set forth herein. Section 3.6 in the Ordinance: Transfer of Bonds and Moneys. Notwithstanding anything to the contrary (1) the Agent shall hold all Series 2005B Bonds delivered to it pursuant to the Ordinance in trust solely for the benefit of the respective Bondholders who shall have so delivered such Bonds until moneys representing the purchase price for such Series 2005B Bonds shall have been delivered to or for the account of such Bondholders; (2) the Agent shall hold all moneys delivered to it pursuant to the Ordinance for the purchase of Series 2005B Bonds in trust and uninvested solely for the benefit of the person or entity which shall have so delivered such moneys until the Series 2005B Bonds purchased with such moneys shall have been delivered to or for the account of such person or entity; (3) the Agent shall only make such payments called for under the Ordinance from funds transferred to it for payment pursuant to the Ordinance which funds are "immediately available" and on deposit in an appropriate account maintained by the Agent; (4) under no circumstances shall the Agent be obligated to expend any of its own funds in connection with the performance of the Duties hereunder; and (5) in purchasing Series 2005B Bonds hereunder, the Agent shall be acting as a conduit and shall not be purchasing the Series 2005B Bonds for its own account, and in the absence of written notice from the City or the Remarketing Agent or underwriter, as applicable, shall be entitled to assume that any Series 2005B Bond tendered to it, or deemed tendered to it for purchase, is entitled under the Ordinance to be so purchased. ARTICLE IV RIGHTS AND OBLIGATIONS OF THE CITY Section 4.1 Payment to the Agent. The City shall pay all reasonable fees, charges, and expenses of the Agent for performing the Duties and the Additional Responsibilities, including - 3 -

4 legal and other fees and expenses upon receipt from the Agent of an invoice therefor. The City and the Agent acknowledge that the fees to be paid to the Agent in its capacity as Trustee under the Ordinance include the fees due the Agent in performing the usual and customary services as Tender Agent and that no additional fees are due Agent for performing those usual and customary services. Such fees may be changed by the Agent at any time and from time to time on sixty (60) days' prior notice. The Agent agrees to keep books and records of such fees, charges and expenses, and permit inspection thereof by the City at all reasonable times during normal business hours. ARTICLE V ENFORCEMENT OF AGREEMENT Section 5.1 Enforcement by the Agent. The Agent may pursue any remedy by suit at law or in equity to enforce its rights hereunder or to enjoin any acts or things which may be in violation of the provisions of this Agreement. ARTICLE VI MISCELLANEOUS Section 6.1 Term of Agreement. This Agreement shall remain in full force and effect until the earliest to occur of (i) the Series 2005B Bonds have been successfully remarketed at a fixed rate on the conversion date therefor, (ii) such time as the principal of, premium, if any, and interest on all Series 2005B Bonds outstanding pursuant to the Ordinance shall have been paid, or (iii) the effective date of the resignation or removal of the Agent. Section 6.2 Amendments. (A) No amendment, modification or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by all the parties hereto. Any such amendment, modification or waiver shall be effective only in the specific instance and for the purpose for which given. (B) The City agrees that it will not amend any provision of the Ordinance or any other agreement affecting the duties, rights or immunities of the Agent without the prior written consent of the Agent. The City agrees to give the Agent prompt written notice of any proposed amendments to any such agreement. Section 6.3 Notices. Any notices, requests or other communications given or made pursuant to this Agreement shall be deemed given or made when delivered or sent by registered or certified mail, return receipt requested, postage prepaid, as follows: If to the City: City of Arlington, Texas 101 W. Abrams Arlington, Texas Attention: City Manager Telephone: (817) Telecopy: (817)

5 If to the Tender Agent: Wells Fargo Bank, National Association 1445 Ross Avenue, Second Floor Dallas, Texas Attention: Corporate Trust Services Telephone: (214) Telecopy: (214) The Parties may by notice given pursuant to this Section designate any different address to which subsequent communications shall be sent. Section 6.4 Resignation and Removal. The Agent may resign upon giving ten (10) days notice to the parties specified in the Ordinance. The Agent may be removed on any date not less than ten (10) days following the receipt of a written notice of such removal from the City and filed with the Remarketing Agent and the Tender Agent, as provided in the Ordinance. Section 6.5 Successors. Any corporation or association into which the Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer its corporate trust business as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which it is a party, shall be and become successor to the Agent hereunder invested with all of the rights powers, trusts, duties and obligations of the Agent hereunder, without the execution or filing of any instrument or any further act. Section 6.6 Actions due on Non-Business Days. If any date on which a payment or other action required by this Agreement falls on other than a Business Day, then that payment or action need not be taken or made on such date, but may be taken or made on the next succeeding Business Day with the same force and effect as it made on such date. Section 6.7 Survival. The Agent's rights to compensation, reimbursement and indemnification shall survive the termination of this Agreement. Section 6.8 Entire Agreement. This Agreement, together with the Ordinance, represents the entire agreement of the parties with regard to the subject matter hereof, and supersedes any prior or contemporaneous agreement, oral or written, between the parties hereto with respect to the subject matter hereof. Section 6.9 Severability. If any term or provision of this Agreement or any application thereof shall be invalid or unenforceable, the remainder of the Agreement and any other application of such term or provision shall not be affected thereby. Section 6.10 Force Majeure. The Agent shall not be liable for any failure or delays arising out of conditions beyond its reasonable control, including, but not limited to, work stoppage, fires, civil disobedience, riots, rebellions storms, electrical, mechanical, computer or communications facilities failures, acts of God and similar occurrences

6 Section 6.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one instrument. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Agent By: Vice President Signature Page to Tender Agency Agreement

7 CITY OF ARLINGTON, TEXAS By: Pricing Officer Signature Page to Tender Agency Agreement