HomeMy WebLinkAbout1113 06-08-1993ORDINANCE NO. 1113
AN ORDINANCE authorizing the issuance of "CITY OF
EULESS, TEXAS, GENERAL OBLIGATION REFUNDING
BONDS, SERIES 1993 "; specifying the terms and
features of said bonds; levying a continuing
direct annual ad valorem tax for the payment
of said bonds; and resolving other matters
incident and related to the issuance, sale,
payment and delivery of said bonds, including
the approval and execution of a Paying
Agent /Registrar Agreement, a Purchase Contract
and Special Escrow Agreement and the approval
and distribution of an Official Statement
pertaining thereto; and providing an effective
date.
WHEREAS, the City Council of the City of Euless, Texas (the
"City ") has heretofore issued, sold, and delivered, and there is
currently outstanding, obligations totalling in principal amount
$5,910,000 (collectively, the "Refunded Obligations ") of the
following issues or series, to wit:
(1) City of Euless, Texas, General
Obligation Refunding Bonds, Series 1985 -A, dated
November 15, 1985, maturing on March 1, 1997
through March 1, 1999, and aggregating in
principal amount
$2,295,000
(2) City of Euless, Texas, General
Obligation Bonds, Series 1986, dated June 1,
1986, maturing on March 1, 1998 through March 1,
2004, and aggregating in principal amount
$1,450,000
(3) City of Euless, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series 1989,
dated May 1, 1989, maturing on March 1, 2000
through March 1, 2007, and aggregating in
principal amount
$ 950,000
(4) City of Euless, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series 1990,
dated August 1, 1990, maturing on March 1, 2001
through March 1, 2008, and aggregating in
principal amount
$1,215,000
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AND WHEREAS, pursuant to the provisions of Article 717k,
V.A.T.C.S., as amended, the City Council is authorized to issue
refunding bonds and deposit the proceeds of sale thereof directly
with any place of payment for the Refunded Obligations, and such
deposit, when made in accordance with said statute, shall
constitute the making of firm banking and financial arrangements
for the discharge and final payment of the Refunded Obligations;
and
WHEREAS, the City Council hereby finds and determines that
general obligation refunding bonds should be issued at this time to
refund the Refunded Obligations, and such refunding will result in
the City saving approximately $459,363.55 in debt service payments
on such indebtedness and further provide present value savings of
approximately $194,136.04; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EULESS,
TEXAS:
SECTION 1: Authorization - Designation - Principal Amount
- Purpose. General obligation refunding bonds of the City shall
be and are hereby authorized to be issued in the aggregate
principal amount of $6,695,000, to be designated and bear the
title "CITY OF EULESS, TEXAS, GENERAL OBLIGATION REFUNDING BONDS,
SERIES 1993" (hereinafter referred to as the "Bonds "), for the
purpose of providing funds for the discharge and final payment of
certain outstanding obligations of the City (identified in the
preamble hereof and referred to as the "Refunded Obligations ") and
to pay costs of issuance, in accordance with authority conferred
by and in conformity with the Constitution and laws of the State
of Texas, including Article 717k, V.A.T.C.S.
SECTION 2: Fully Registered Obligations - Bond Date -
The Bonds shall be issued as fully registered obligations only,
shall be dated June 1, 1993 (the "Issue Date ") , and, other than
the single fully registered Initial Bond referenced in Section 8
hereof, shall be in denominations of $5,000 or any integral
multiple (within a Stated Maturity) thereof, and shall become due
and payable on February 15 in each of the years and in principal
amounts (the "Stated Maturities ") and bear interest at the rates)
per annum in accordance with the following schedule:
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YEAR OF
PRINCIPAL
INTEREST
MATURITY
INSTALLMENTS
RATE
1994
$145,000
2.80%
1995
145,000
3.20%
1996
150,000
3.55%
1997
935,000
3.80%
1998
1,015,000
4.00%
1999
975,000
4.20%
2000
320,000
4.40%
2001
450,000
4.60%
2002
475,000
4.80%
2003
525,000
5.00%
2004
545,000
5.10%
2005
270,000
5.25%
2006
280,000
5.40%
2007
305,000
5.50%
2008
160,000
5.50%
The Bonds shall bear interest on the unpaid principal
amounts from the Issue Date at the rate(s) per annum shown above
in this Section (calculated on the basis of a 360 -day year of
twelve 30 -day months) . Interest on the Bonds shall be payable on
February 15 and August 15 in each year, commencing August 15,
1993.
SECTION 3: Terms of Payment - Paying Agent /Registrar.
The principal of, premium, if any, and the interest on the Bonds,
due and payable by reason of maturity, redemption or otherwise,
shall be payable only to the registered owners or holders of the
Bonds (hereinafter called the "Holders ") appearing on the
registration and transfer books maintained by the Paying
Agent /Registrar and the payment thereof shall be in any coin or
currency of the United States of America, which at the time of
payment is legal tender for the payment of public and private
debts, and shall be without exchange or collection charges to the
Holders.
The selection and appointment of Ameritrust Texas National
Association to serve as Paying Agent /Registrar for the Bonds is
hereby approved and confirmed. Books and records relating to the
registration, payment, exchange and transfer of the Bonds (the
"Security Register ") shall at all times be kept and maintained on
behalf of the City by the Paying Agent /Registrar, all as provided
herein, in accordance with the terms and provisions of a "Paying
Agent /Registrar Agreement ", substantially in the form attached
hereto as Exhibit A and such reasonable rules and regulations as
the Paying Agent /Registrar and the City may prescribe. The Mayor
and City Secretary of the City are hereby authorized to execute
and deliver such Agreement in connection with the delivery of the
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Bonds. The City covenants to maintain and provide a Paying
Agent /Registrar at all times until the Bonds are paid and
discharged, and any successor Paying Agent /Registrar shall be a
bank, trust company, financial institution or other entity
qualified and authorized to serve in such capacity and perform the
duties and services of Paying Agent/ Registrar. Upon any change in
the Paying Agent /Registrar for the Bonds, the City agrees to
promptly cause a written notice thereof to be sent to each Holder
by United States Mail, first class postage prepaid, which notice
shall also give the address of the new Paying Agent /Registrar.
Principal of and premium, if any, on the Bonds shall be
payable at the Stated Maturities or redemption, only upon
presentation and surrender of the Bonds to the Paying
Agent /Registrar at its principal offices in Dallas, Texas (the
"Designated Payment/ Transfer Office ") . Interest on the Bonds
shall be paid to the Holders whose name appears in the Security
Register at the close of business on the Record Date (the last
business day of the month next preceding each interest payment
date) and shall be paid by the Paying Agent /Registrar (i) by check
sent United States Mail, first class postage prepaid, to the
address of the Holder recorded in the Security Register or (ii) by
such other method, acceptable to the Paying Agent/ Registrar,
requested by, and at the risk and expense of, the Holder. If the
date for the payment of the principal of or interest on the Bonds
shall be a Saturday, Sunday, a legal holiday, or a day when
banking institutions in the City where the Designated
Payment /Transfer Office of the Paying Agent /Registrar is located
are authorized by law or executive order to close, then the date
for such payment shall be the next succeeding day which is not
such a Saturday, Sunday, legal holiday, or day when banking
institutions are authorized to close; and payment on such date
shall have the same force and effect as if made on the original
date payment was due.
In the event of a nonpayment of interest on a scheduled
payment date, and for thirty (30) days thereafter, a new record
date for such interest payment (a "Special Record Date ") will be
established by the Payinc -- -' Registrar, if and when funds for
the payment of such it een received from the City.
Notice of the Special .—_ 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 Holder appearing on
the Security Register at the close of business on the last
business day next preceding the date of mailing of such notice.
SECTION 4: Redemption. (a) Optional Redemption. The Bonds
having Stated Maturities on and after February 15, 2003, shall be
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subject to redemption prior to maturity, at the option of the
City, in whole or in part in principal amounts of $5,000 or any
integral multiple thereof (and if within a Stated Maturity by lot
by the Paying Agent/ Registrar), on February 15, 2002 or on any
date thereafter at the redemption price of par plus accrued
interest to the date of redemption.
(b) Exercise of Redemption Option. At least forty -five
(45) days prior to a redemption date for the Bonds (unless a
shorter notification period shall be satisfactory to the Paying
Agent /Registrar), the City shall notify the Paying Agent /Registrar
of the decision to redeem Bonds, the principal amount of each
Stated Maturity to be redeemed, and the date of redemption
therefor. The decision of the City to exercise the right to
redeem Bonds shall be entered in the minutes of the governing body
of the City.
(c) Selection of Bonds for Redemption. If less than all
Outstanding Bonds of the same Stated Maturity are to be redeemed
on a redemption date, the Paying Agent /Registrar shall treat such
Bonds as representing the number of Bonds Outstanding which is
obtained by dividing the principal amount of such Bonds by $5,000
and shall select the Bonds to be redeemed within such Stated
Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30)
days prior to a redemption date for the Bonds, a notice of
redemption shall be sent by United States Mail, first class
postage prepaid, in the name of the City and at the City's
expense, to each Holder of a Bond to be redeemed in whole or in
part at the address of the Holder appearing on the Security
Register at the close of business on the business day next
preceding the date of mailing such notice, and any notice of
redemption so mailed shall be conclusively presumed to have been
duly given irrespective of whether received by the Holder.
All notices of redemption shall (i) specify the date of
redemption for the Bonds, (ii) identify the Bonds to be redeemed
and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state
the redemption price, (iv) state that the Bonds, or the portion of
the principal amount thereof to be redeemed, shall become due and
payable on the redemption date specified, and the interest
thereon, or on the portion of the principal amount thereof to be
redeemed, shall cease to accrue from and after the redemption
date, and (v) specify that payment of the redemption price for the
Bonds, or the principal amount thereof to be redeemed, shall be
made at the Designated Payment/ Transfer Office of the Paying
Agent /Registrar only upon presentation and surrender thereof by
the Holder. If a Bond is subject by its terms to prior redemption
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and has been called for redemption and notice of redemption
thereof has been duly given as hereinabove provided, such Bond (or
the principal amount thereof to be redeemed) shall become due and
payable and interest thereon shall cease to accrue from and after
the redemption date therefor; provided moneys sufficient for the
payment of such Bond (or of the principal amount thereof to be
redeemed) at the then applicable redemption price are held for the
purpose of such payment by the Paying Agent /Registrar.
SECTION 5: Registration - Transfer - Exchange of Bonds -
Predecessor Bonds. The Paying Agent /Registrar shall obtain,
record, and maintain in the Security Register the name and address
of each and every owner of the Bonds issued under and pursuant to
the provisions of this Ordinance, or if appropriate, the nominee
thereof. Any Bond may be transferred or exchanged for Bonds of
other authorized denominations by the Holder, in person or by his
duly authorized agent, upon surrender of such Bond to the Paying
Agent /Registrar at the Designated Payment/ Transfer Office for
cancellation, accompanied by a written instrument of transfer or
request for exchange duly executed by the Holder or by his duly
authorized agent, in form satisfactory to the Paying
Agent /Registrar.
Upon surrender of any Bond (other than the Initial Bonds
authorized in Section 8 hereof) for transfer at the Designated
Payment /Transfer Office of the Paying Agent/ Registrar, one or
more new Bonds shall be registered and issued to the assignee or
transferee of the previous Holder; such Bonds to be in authorized
denominations, of like Stated Maturity and of a like aggregate
principal amount as the Bond or Bonds surrendered for transfer.
At the option of the Holder, Bonds (other than the Initial
Bonds authorized in Section 8 hereof) may be exchanged for other
Bonds of authorized denominations and having the same Stated
Maturity, bearing the same rate of interest and of like aggregate
principal amount as the Bonds surrendered for exchange, upon
surrender of the Bonds to be exchanged at the Designated
Payment/ Transfer Office of the Paying Agent/ Registrar. Whenever
any Bonds are surrendered for exchange, the Paying Agent /Registrar
shall register and deliver new Bonds to the Holder requesting the
exchange.
All Bonds issued in any transfer or exchange of Bonds shall
be delivered to the Holders at the Designated Payment/ Transfer
Office of the Paying Agent /Registrar or sent by United States
Mail, first class, postage prepaid to the Holders, and, upon the
registration and delivery thereof, the same shall be the valid
obligations of the City, evidencing the same obligation to pay,
and entitled to the same benefits under this Ordinance, as the
Bonds surrendered in such transfer or exchange.
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All transfers or exchanges of Bonds pursuant to this
Section shall be made without expense or service charge to the
Holder, except as otherwise herein provided, and except that the
Paying Agent /Registrar shall require payment by the Holder
requesting such transfer or exchange of any tax or other
governmental charges required to be paid with respect to such
transfer or exchange.
Bonds cancelled by reason of an exchange or transfer
pursuant to the provisions hereof are hereby defined to be
"Predecessor Bonds," evidencing all or a portion, as the case may
be, of the same obligation to pay evidenced by the new Bond or
Bonds registered and delivered in the exchange or transfer
therefor. Additionally, the term "Predecessor Bonds" shall
include any mutilated, lost, destroyed, or stolen Bond for which
a replacement Bond has been issued, registered and delivered in
lieu thereof pursuant to the provisions of Section 11 hereof and
such new replacement Bond shall be deemed to evidence the same
obligation as the mutilated, lost, destroyed, or stolen Bond.
Neither the City nor the Paying Agent/ Registrar shall be
required to issue or transfer to an assignee of a Holder any Bond
called for redemption, in whole or in part, within 45 days of the
date fixed for the redemption of such Bond; provided, however,
such limitation on transferability shall not be applicable to an
exchange by the Holder of the unredeemed balance of a Bond called
for redemption in part.
SECTION 6: Book -Entry Only Transfers and Transactions.
Notwithstanding the provisions contained in Sections 3, 4 and 5
hereof relating to the payment, and transfer /exchange of the
Bonds, the City hereby approves and authorizes the use of
"Book -Entry Only" securities clearance, settlement and transfer
system provided by The Depository Trust Company (DTC), a limited
purpose trust company organized under the laws of the State of New
York, in accordance with the requirements and procedures
identified in the Letter of Representation, by and between the
City, the Paying Agent /Registrar and DTC (the "Depository
Agreement ") relating to the Bonds.
Pursuant to the Depository Agreement and the rules of DTC,
the Bonds shall be deposited with DTC who shall hold said Bonds
for its participants (the "DTC Participants "). While the Bonds
are held by DTC under the Depository Agreement, the Holder of the
Bonds on the Security Register for all purposes, including payment
and notices, shall be Cede & Co., as nominee of DTC,
notwithstanding the ownership of each actual purchaser or owner of
each Bond (the "Beneficial Owners ") being recorded in the records
of DTC and DTC Participants.
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In the event DTC determines to discontinue serving as
securities depository for the Bonds or otherwise ceases to provide
book -entry clearance and settlement of securities transactions in
general or the City determines that DTC is incapable of properly
discharging its duties as securities depository for the Bonds, the
City covenants and agrees with the Holders of the Bonds to cause
Bonds to be printed in definitive form and provide for the Bond
certificates to be issued and delivered to DTC Participants and
Beneficial owners, as the case may be. Thereafter, the Bonds in
definitive form shall be assigned, transferred and exchanged on
the Security Register maintained by the Paying Agent /Registrar and
payment of such Bonds shall be made in accordance with the
provisions of Sections 3, 4 and 5 hereof.
SECTION 7: Execution - Registration. The Bonds shall be
executed on behalf of the City by the Mayor under its seal
reproduced or impressed thereon and countersigned by the City
Secretary. The signature of said officers on the Bonds may be
manual or facsimile. Bonds bearing the manual or facsimile
signatures of individuals who are or were the proper officers of
the City on the Issue Date shall be deemed to be duly executed on
behalf of the City, notwithstanding that such individuals or
either of them shall cease to hold such offices at the time of
delivery of the Bonds to the initial purchaser(s) and with respect
to Bonds delivered in subsequent exchanges and transfers, all as
authorized and provided in the Bond Procedures Act of 1981, as
amended.
No Bond shall be entitled to any right or benefit under
this Ordinance, or be valid or obligatory for any purpose, unless
there appears on such Bond either a certificate of registration
substantially in the form provided in Section 9C, manually
executed by the Comptroller of Public Accounts of the State of
Texas, or his duly authorized agent, or a certificate of
registration substantially in the form provided in Section 9D,
manually executed by an authorized officer, employee or
representative of the Paying Agent/ Registrar, and either such
certificate duly signed upon any Bond shall be conclusive
evidence, and the only evidence, that such Bond has been duly
certified, registered and delivered.
SECTION 8: Initial Bond(s) . The Bonds herein authorized
shall be initially issued either (i) as a single fully registered
bond in the total principal amount of $6,695,000 in principal
installments to become due and payable as provided in Section 2
hereof and numbered T -1, or (ii) as fifteen (15) fully registered
bonds, being one bond for each year of maturity in the applicable
principal amount and denomination and to be numbered consecutively
from T -1 and upward (hereinafter called the "Initial Bond(s)")
and, in either case, the Initial Bond(s) shall be registered in
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the name of the initial purchaser(s) or the designee thereof. The
Initial Bond(s) shall be the Bonds submitted to the Office of the
Attorney General of the State of Texas for approval, certified and
registered by the Office of the Comptroller of Public Accounts of
the State of Texas and delivered to the initial purchaser(s) . Any
time after the delivery of the Initial Bond(s) , the Paying Agent/
Registrar, pursuant to written instructions from the initial
purchaser(s), or the designee thereof, shall cancel the Initial
Bond(s) delivered hereunder and exchange therefor definitive Bonds
of authorized denominations, Stated Maturities, principal amounts
and bearing applicable interest rates for transfer and delivery to
the Holders named at the addresses identified therefor; all
pursuant to and in accordance with such written instructions from
the initial purchaser(s) , or the designee thereof, and such other
information and documentation as the Paying Agent /Registrar may
reasonably require.
SECTION 9: Forms. A. Forms Generally. The Bonds, the
Registration Certificate of the Comptroller of Public Accounts of
the State of Texas, the Registration Certificate of Paying
Agent /Registrar, and the form of Assignment to be printed on each
of the Bonds, shall be substantially in the forms set forth in
this Section with such appropriate insertions, omissions,
substitutions, and other variations as are permitted or required
by this Ordinance and 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 insurance legends on insured Bonds and any
reproduction of an opinion of counsel) thereon as may,
consistently herewith, be established by the City or determined by
the officers executing such Bonds as evidenced by their execution.
Any portion of the text of any Bonds may be set forth on the
reverse thereof, with an appropriate reference thereto on the face
of the Bond.
The definitive Bonds and the Initial Bond(s) shall be
printed, lithographed, or engraved or typewritten, photocopied or
otherwise reproduced in any other similar manner, all as
determined by the office.' executing such Bonds as evidenced by
their execution thereof.
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B.
REGISTERED
NO.
Issue Date:
June 1, 1993
Form of Definitive Bond.
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF EULESS, TEXAS,
GENERAL OBLIGATION REFUNDING BOND,
SERIES 1993
Interest Rate: Stated Maturity:
Registered Owner:
REGISTERED
CUSIP NO:
Principal Amount: DOLLARS
The City of Euless (hereinafter referred to as the "City ") ,
a body corporate and municipal corporation in the County of
Tarrant, State of Texas, 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 15 and August 15 in each year, commencing August 15,
1993. 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 (or one or more Predecessor Bonds, as defined
in the Ordinance hereinafter referenced) whose name appears on the
"Security Register" maintained by the Paying Agent /Registrar at
the close of business on the "Record Date ", which is the last
business day of the month next preceding each interest payment
date, and interest shall be paid by the Paying Agent /Registrar by
check sent United States Mail, first class postage prepaid, to the
address of the registered owner recorded in the Security 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, premium, if any, and
interest on this Bond shall be without exchange or collection
charges to the owner hereof and in any coin or currency of the
United States of America which at the time of payment is legal
tender for the payment of public and private debts.
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This Bond is one of the series specified in its title
issued in the aggregate principal amount of $6,695,000 (herein
referred to as the "Bonds ") for the purpose of providing funds for
the discharge and final payment of certain outstanding obligations
of the City and to pay costs of issuance, under and in strict
conformity with the Constitution and laws of the State of Texas,
including Article 717k, V.A.T.C.S., and pursuant to an Ordinance
adopted by the City Council of the City (herein referred to as the
"Ordinance ").
The Bonds maturing on and after February 15, 2003, may be
redeemed prior to their Stated Maturities, at the option of the
City, in whole or in part in principal amounts of $5,000 or any
integral multiple thereof (and if within a Stated Maturity by lot
by the Paying Agent /Registrar), on February 15, 2002, or on any
date thereafter, 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 relating thereto
contained in the Ordinance. 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 the 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 Ordinance for the
then unredeemed balance of the principal sum hereof. If this Bond
is selected for redemption, in whole or in part, the City 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 limitations prescribed by law, upon all
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taxable property in the City. Reference is hereby made to the
Ordinance, 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 for the
payment of the Bonds; the terms and conditions relating to the
transfer or exchange of this Bond; the conditions upon which the
Ordinance may be amended or supplemented with or without the
consent of the Holders; the rights, duties, and obligations of the
City 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 Ordinance.
This Bond, subject to certain limitations contained in the
Ordinance, may be transferred on the Security 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 Security 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 City and the Paying Agent /Registrar, and any agent of
either, shall treat the registered owner whose name appears on the
Security 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 hereof at its
Stated Maturity, and (iii) on any other date as the owner for all
other purposes, and neither the City 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
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
City. 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 Holder
appearing on the Security Register at the close of business on the
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last business day next preceding the date of mailing of such
notice.
It is hereby certified, recited, represented and declared
that the City is a body corporate and political subdivision duly
organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the issuance of
the Bonds is duly authorized by law; that all acts, conditions and
things required to exist and be done precedent to and in the
issuance of the Bonds to render the same lawful and valid
obligations of the City have been properly done, have happened and
have been performed in regular and due time, form and manner as
required by the Constitution and laws of the State of Texas, and
the Ordinance; that the Bonds do not exceed any Constitutional or
statutory limitation; and that due provision has been made for the
payment of the principal of and interest on the Bonds by the levy
of a tax as aforestated. In case any provision in this Bond shall
be invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The terms and provisions of this
Bond and the Ordinance shall be construed in accordance with and
shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the City Council of the City has caused
this Bond to be duly executed under the official seal of the City
as of the Issue Date.
CITY OF EULESS, TEXAS
COUNTERSIGNED: Mayor
ty Secretary
(SEAL)
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C. *Form of Registration Certificate of Comptroller of
Public Accounts to appear on Initial Bond(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
( REGISTER NO.
THE STATE OF TEXAS
I HEREBY CERTIFY that this Bond has been examined,
certified as to validity and approved by the Attorney General of
the State of Texas, and duly registered by the Comptroller of
Public Accounts of the State of Texas.
WITNESS my signature and seal of office this
Comptroller of Public Accounts
of the State of Texas
(SEAL)
*NOTE TO PRINTER: Do Not Print on Definitive Bonds
D. Form of Certificate of Paying Agent /Registrar to
appear on Definitive Bonds only.
REGISTRATION CERTIFICATE OF PAYING AGENT /REGISTRAR
This Bond has been duly issued and registered under the
provisions of the within - mentioned Ordinance; the bond or bonds of
the above entitled and designated series originally delivered
having been approved by the Attorney General of the State of Texas
and registered by the Comptroller of Public Accounts, as shown by
the records of the Paying Agent /Registrar.
The principal offices of the Paying Agent /Registrar in
Dallas, Texas, is the Designated Payment /Transfer Office for this
Bond.
AMERITRUST TEXAS NATIONAL
ASSOCIATION,
as Paying Agent /Registrar
Registration Date:
By
Authorized Signature
009 VW
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E. Form of Assignment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and
transfers unto (Print or typewrite name, address, and zip code of
transferee:) ... ...............................
................................. ...............................
(Social Security or other identifying number: .................
.................) the within Bond and all rights thereunder, and
hereby irrevocably constitutes and appoints ...................
................................. ...............................
attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the
premises.
DATED:
NOTICE: The signature on this
Signature guaranteed: assignment must correspond with
the name of the registered owner
........................... as it appears on the face of the
within Bond in every particular.
F.
(i)
immediately under the name of the bond the headings
"Interest Rate " and "Stated Maturity _
" shall both be omitted;
(ii) Paragraph one shall read as follows:
Registered Owner:
Principal Amount: Dollars
The City of Euless (hereinafter referred to as the "City "),
a body corporate and municipal corporation in the County of
Tarrant, State of Texas, 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 February 15 in each of
the years and in principal installments in accordance with the
following schedule:
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YEAR OF PRINCIPAL INTEREST
MATURITY INSTALLMENTS RATE
(Information to be inserted from
schedule in Section 2 hereof).
(or so much principal thereof as shall not have been prepaid prior
to maturity) and to pay interest on the unpaid Principal Amount
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 15 and
August 15 in each year, commencing August 15, 1993. Principal
installments of this Bond are payable in the year of maturity to
the registered owner hereof by Ameritrust Texas National
Association (the "Paying Agent /Registrar "), upon presentation and
surrender, at its principal offices in Dallas, Texas (the
"Designated Payment /Transfer Office " "). Interest is payable to
the registered owner of this Bond whose name appears on the
"Security Register" maintained by the Paying Agent /Registrar at
the close of business on the "Record Date ", which is the last
business day of the month next preceding each interest payment
date, and interest shall be paid by the Paying Agent /Registrar by
check sent United States Mail, first class postage prepaid, to the
address of the registered owner recorded in the Security 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, premium, if any, and
interest on this Bond shall be without exchange or collection
charges to the owner hereof and in any coin or currency of the
United States of America which at the time of payment is legal
tender for the payment of public and private debts.
SECTION 10: Levy of Taxes. To provide for the payment of
the "Debt Service Requirements" of the Bonds, being (i) the
interest on the Bonds and (ii) a sinking fund for their redemption
at maturity or a sinking fund of 2% (whichever amount is the
greater) , there is hereby levied, and there shall be annually
assessed and collected in due time, form, and manner, a tax on all
taxable property in the City, within the limitations prescribed by
law, and such tax hereby levied on each one hundred dollars'
valuation of taxable property in the City for the Debt Service
Requirements of the Bonds shall be at a rate from year to year as
will be ample and sufficient to provide funds each year to pay the
principal of and interest on said Bonds while Outstanding; full
allowance being made for delinquencies and costs of collection;
separate books and records relating to the receipt and
disbursement of taxes levied, assessed and collected for and on
account of the Bonds shall be kept and maintained by the City at
all times while the Bonds are Outstanding, and the taxes collected
for the payment of the Debt Service Requirements on the Bonds
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shall be deposited to the credit of a "Special 1993 Refunding Bond
Account" (the "Interest and Sinking Fund ") maintained on the
records of the City and deposited in a special fund maintained at
an official depository of the City's funds; and such tax hereby
levied, and to be assessed and collected annually, is hereby
pledged to the payment of the Bonds.
Proper officers of the City are hereby authorized and
directed to cause to be transferred to the Paying Agent/ Registrar
for the Bonds, from funds on deposit in the Interest and Sinking
Fund, amounts sufficient to fully pay and discharge promptly each
installment of interest and principal of the Bonds as the same
accrues or matures; such transfers of funds to be made in such
manner as will cause collected funds to be deposited with the
Paying Agent /Registrar on or before each principal and interest
payment date for the Bonds.
In regard to the debt service payment to become due on the
Bonds on August 15, 1993, sufficient current funds will be
available and are hereby appropriated to make such payment; and
proper officials of the City are hereby authorized and directed to
transfer and deposit to the credit of the Interest and Sinking
Fund, such current funds which, together with the accrued interest
received from the purchaser, will be sufficient to pay the amount
due on the Bonds on August 15, 1993.
SECTION 11: Mutilated - Destroyed - Lost and Stolen Bonds.
In case any Bond shall be mutilated, or destroyed, lost or stolen,
the Paying Agent /Registrar may execute and deliver a replacement
Bond of like form and tenor, and in the same denomination and
bearing a number not contemporaneously outstanding, in exchange
and substitution for such mutilated Bond, or in lieu of and in
substitution for such destroyed, lost or stolen Bond, only upon
the approval of the City and after (i) the filing by the Holder
thereof with the Paying Agent/ Registrar of evidence satisfactory
to the Paying Agent/ Registrar of the destruction, loss or theft
of such Bond, and of the authenticity of the ownership thereof and
(ii) the furnishing to the Paying Agent /Registrar of
indemnification in an amount satisfactory to hold the City and the
Paying Agent/ Registrar harmless. All expenses and charges
associated with such indemnity and with the preparation, execution
and delivery of a replacement Bond shall be borne by the Holder of
the Bond mutilated, or destroyed, lost or stolen.
Every replacement Bond issued pursuant to this Section shall
be a valid and binding obligation, and shall be entitled to all
the benefits of this Ordinance equally and ratably with all other
Outstanding Bonds; notwithstanding the enforceability of payment
by anyone of the destroyed, lost, or stolen Bonds.
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The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement and payment of mutilated, destroyed,
lost or stolen Bonds.
SECTION 12: Satisfaction of Obligation of City. If the
City shall pay or cause to be paid, or there shall otherwise be
paid to the Holders, the principal of, premium, if any, and
interest on the Bonds, at the times and in the manner stipulated
in this Ordinance, then the pledge of taxes levied under this
Ordinance and all covenants, agreements, and other obligations of
the City to the Holders shall thereupon cease, terminate, and be
discharged and satisfied.
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 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 Securities shall have been irrevocably
deposited in trust with the Paying Agent/ Registrar, or an
authorized escrow agent, which Government Securities 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 moneys 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. The
City covenants that no deposit of moneys or Government Securities
will be made under this Section and no use made of any such
deposit which would cause the Bonds to be treated as "arbitrage
bonds" within the meaning of Section 148 of the Internal Revenue
Code of 1986, as amended, or regulations adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/ Registrar, or
an authorized escrow agent, and all income from Government
Securities held in trust by the Paying Agent/ Registrar, or an
authorized escrow agent, 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 moneys
have been so deposited shall be remitted to the City or deposited
as directed by the City. 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
four (4) years after the Stated Maturity, or applicable redemption
ooezreo
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date, of the Bonds such moneys were deposited and are held in
trust to pay shall upon the request of the City be remitted to the
City against a written receipt therefor. Notwithstanding the
above and foregoing, any remittance of funds from the Paying
Agent /Registrar to the City shall be subject to any applicable
unclaimed property laws of the State of Texas.
The term "Government Securities ", as used herein, means
direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States of America, which are non - callable prior to the respective
Stated Maturities of the Bonds and may be United States Treasury
Obligations such as the State and Local Government Series and may
be in book -entry form.
SECTION 13: Ordinance a Contract Amendments -
Outstanding Bonds. This Ordinance shall constitute a contract
with the Holders from time to time, be binding on the City, and
shall not be amended or repealed by the City so long as any Bond
remains Outstanding except as permitted in this Section. The City
may, without the consent of or notice to any Holders, from time to
time and at any time, amend this Ordinance in any manner not
detrimental to the interests of the Holders, including the curing
of any ambiguity, inconsistency, or formal defect or omission
herein. In addition, the City may, with the consent of Holders
holding a majority in aggregate principal amount of the Bonds then
Outstanding affected thereby, amend, add to, or rescind any of the
provisions of this Ordinance; provided that, without the consent
of all Holders of Outstanding Bonds, no such amendment, addition,
or rescission shall (1) extend the time or times of payment of the
principal of, premium, if any, and interest on the Bonds, reduce
the principal amount thereof, the redemption price, or the rate of
interest thereon, or in any other way modify the terms of payment
of the principal of, premium, if any, or interest on the Bonds,
(2) give any preference to any Bond over any other Bond, or
(3) reduce the aggregate principal amount of Bonds required to be
held by Holders for consent to any such amendment, addition, or
rescission.
The term "Outstanding" when used in this Ordinance with
respect to Bonds means, as of the date of determination, all Bonds
theretofore issued and delivered under this Ordinance, except:
(1) those Bonds cancelled by the Paying
Agent /Registrar or delivered to the Paying Agent/
Registrar for cancellation;
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(2) those Bonds deemed to be duly paid by the
City in accordance with the provisions of Section 12
hereof; and
(3) those mutilated, destroyed, lost, or
stolen Bonds which have been replaced with Bonds
registered and delivered in lieu thereof as provided
in Section 11 hereof.
SECTION 14: Covenants to Maintain Tax - Exempt Status.
(a) Definitions. When used in this Section, the following
terms shall have the following meanings:
"Code" means the Internal Revenue Code of 1986, as
amended by all legislation, if any, enacted on or before
the Issue Date.
"Computation Date" has the meaning stated in Treas.
Reg. § 1.148- 8(b)(1).
"Gross Proceeds" has the meaning stated in Treas.
Reg. § 1.148 -8(d).
"Investment" has the meaning stated in Treas.
Reg. § 1.148 -8(e).
"Nonpurpose Investment" means any Investment in
which Gross Proceeds of the Bonds are invested and which
is not acquired to carry out the governmental purpose of
the Bonds. Obligations acquired with proceeds of the
Bonds that are to be used to discharge the Refunded
Obligations are Nonpurpose Investments.
"Rebatable Arbitrage" has the meaning stated in
Treas. Reg. S 1.148 -2.
"Yield of"
(1) any Investment shall be computed in
accordance with Treas. Reg. §1.148 -2, and
(2) the Bonds has the meaning stated in
Treas. Reg. S 1.148 -3.
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(b) Not to Cause Interest to Become Taxable. The City shall
not use, permit the use of, or omit to use Gross Proceeds or any
other amounts (or any property the acquisition, construction, or
improvement of which is to be financed directly or indirectly with
Gross Proceeds) in a manner which, if made or omitted,
respectively, would cause the interest on any Bond to become
includable in the gross income, as defined in section 61 of the
Code, of the owner thereof for federal income tax purposes.
Without limiting the generality of the foregoing, unless and until
the City shall have received a written opinion of counsel
nationally recognized in the field of municipal bond law to the
effect that failure to comply with such covenant will not adversely
affect the exemption from federal income tax of the interest on any
Bond, the City shall comply with each of the specific covenants in
this Section.
(c) No Private Use or Private Payments. Except as permitted
by section 141 of the Code and the regulations and rulings
thereunder, the City shall, at all times prior to the last Stated
Maturity of Bonds,
(1) exclusively own, operate, and possess all
property the acquisition, construction, or improvement of
which is to be financed directly or indirectly with Gross
Proceeds of the Bonds and not use or permit the use of
such Gross Proceeds or any property acquired,
constructed, or improved with such Gross Proceeds
(including all contractual arrangements with terms
different than those applicable to the general public) in
any activity carried on by any person or entity other
than a state or local government, unless such use is
solely as a member of the general public, or
(2) not directly or indirectly impose or accept any
charge or other payment for use of Gross Proceeds of the
Bonds or any property the acquisition, construction, or
improvement of which is to be financed directly or
indirectly with such Gross Proceeds (including property
financed with Gross Proceeds of the Refunded
obligations), other than taxes of general application
within the City or interest earned on investments
acquired with such Gross Proceeds pending application for
their intended purposes.
(d) No Private Loan. Except to the extent permitted by
section 141 of the Code and the regulations and rulings thereunder,
the City shall not use Gross Proceeds of the Bonds to make or
finance loans to any person or entity other than a state or local
government. For purposes of the foregoing covenant, such Gross
Proceeds are considered to be "loaned" to a person or entity if (1)
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property acquired, constructed, or improved with such Gross
Proceeds is sold or leased to such person or entity in a
transaction which creates a debt for federal income tax purposes,
(2) capacity in or service from such property is committed to such
person or entity under a take -or -pay, output, or similar contract
or arrangement, or (3) indirect benefits, or burdens and benefits
of ownership, of such Gross Proceeds or any property acquired,
constructed, or improved with such Gross Proceeds are otherwise
transferred in a transaction which is the economic equivalent of a
loan.
(e) Not to Invest at Higher Yield. Except to the extent
permitted by section 148 of the Code and the regulations and
rulings thereunder, the City shall not, at any time prior to the
final Stated Maturity of the Bonds, directly or indirectly invest
Gross Proceeds of the Bonds in any Investment (or use such Gross
Proceeds to replace money so invested) , if as a result of such
investment the Yield of all Investments allocated to such Gross
Proceeds whether then held or previously disposed of, exceeds the
Yield of the Bonds.
(f) Not Federally Guaranteed. Except to the extent permitted
by section 149(b) of the Code and the regulations and rulings
thereunder, the City shall not take or omit to take any action
which would cause the Bonds to be federally guaranteed within the
meaning of Section 149(b) of the Code and the regulations and
rulings thereunder.
(g) Information Report. The City shall timely file with the
Secretary of the Treasury the information required by section
149(e) of the Code with respect to the Bonds on such form and in
such place as such Secretary may prescribe.
(h) Payment of Rebatable Arbitrage. Except to the extent
otherwise provided in section 148(f) of the Code and the
regulations and rulings thereunder,
(1) The City shall account for all Gross Proceeds
of the Bonds (including all receipts, expenditures, and
investments thereof) on its books of account separately
and apart from all other funds (and receipts,
expenditures, and investments thereof) and shall maintain
all records of such accounting with the official
transcript of the proceedings relating to the issuance of
the Bonds until six years after the final Computation
Date. The City may, however, to the extent permitted by
section 148(f) of the Code and the regulations
thereunder, commingle Gross Proceeds of the Bonds with
other money of the City, provided that the City
separately accounts for each receipt and expenditure of
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such Gross Proceeds and the obligations acquired
therewith.
(2) Not less frequently than each Computation Date,
the City shall either (i) cause to be calculated by a
nationally recognized accounting or financial advisory
firm or (ii) calculate and cause its calculations to be
verified by a nationally recognized accounting or
financial advisory firm, in either case in accordance
with rules set forth in section 148(f) of the Code and
Treas. Reg. § 1.148 -2 and rulings thereunder, the
Rebatable Arbitrage with respect to the Bonds. The City
shall maintain such calculations relating to the issuance
of the Bonds until six years after the final Computation
Date.
(3) As additional consideration for the purchase of
the Bonds by the initial purchasers thereof and the loan
of the money represented thereby, and in order to induce
such purchase by measures designed to result in the
excludability of the interest thereon from the gross
income of the owners thereof for federal income tax
purposes, the City shall pay to the United States the
amount described in paragraph (2) above and the amount
described in paragraph (4) below, at the times, in the
installments, to the place, in the manner, and
accompanied by such forms or other information as is or
may be required by section 148(f) of the Code and
Treas. Reg. §§ 1.148 -1 through 1.148 -9 and rulings
thereunder.
(4) The City shall exercise reasonable diligence to
assure that no errors are made in the calculations
required by paragraph (2) and, if such error is made, to
discover and promptly to correct such error within a
reasonable amount of time thereafter, including payment
to the United States of any Correction Amount as
described in Treas. Reg. § 1.148- 1(c)(2) and any penalty
under Treas. Reg. § 1.148- 1(c)(3)(ii)(B).
(5) The City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the
Bonds, enter into any transaction that reduces the amount
required to be paid to the United States pursuant to this
subsection (h) because such transaction results in a
smaller profit or a larger loss than would have resulted
if the transaction had been at arm's length and had the
Yield of the Bonds not been relevant to either party.
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(i) Qualified Advance Refunding. The Bonds are being issued
exclusively to refund the Refunded Obligations, and the Bonds will
be issued more than 90 days before the redemption of the Refunded
Obligations. The City represents that:
(1) None of the Refunded Obligations are "private
activity bonds," within the meaning of section 141 of the
Code. Specifically, the covenants set forth in
subsection (c) and (d) of this Section are true, correct,
and complete with respect to the Refunded Obligations,
their proceeds, and the facilities financed therewith.
(2) The Bonds are the first advance refunding
(within the meaning of section 149(d)(5) of the Code) of
the Series 1986, Series 1989 and Series 1990 Refunded
Obligations and the second advance refunding of the
Series 1985 -A Refunded Obligations.
(3) The Refunded Obligations are being called for
redemption, and will be redeemed, not later than the
earliest date on which each such issue may be redeemed at
par or at a premium of 3 percent or less.
(4) The initial temporary period under section
148(c) of the Code will end (i) with respect to the
proceeds of the Bonds not later than 30 days after the
date of issue of such Bonds and (ii) with respect to
proceeds of the Refunded Obligations on the date of
issuance of the Bonds if not ended prior thereto.
(5) Section 148(e) of the Code did not apply to the
Refunded Obligations. On and after the date of issue of
the Bonds no proceeds of the Refunded Obligations will be
invested in Nonpurpose Investments having a Yield in
excess of the Yield on the Refunded Obligations to which
any of such proceeds relate.
(6) The debt service savings achieved by the City
are a result solely of the interest rates on the Bonds
being lower than the interest rate on the Refunded
obligations. In the issuance of the Bonds the City has
employed no "device" to obtain a material financial
advantage (based on arbitrage), within the meaning of
section 149(d)(4) of the Code.
SECTION 15: Sale of Bonds - Official Statement Approval.
The Bonds authorized by this Ordinance are hereby sold by the City
to Rauscher Pierce Refsnes, Inc. and Smith Barney, Harris Upham &
Co. Incorporated (herein referred to as the "Purchasers ") in
accordance with the Purchase Contract, dated June 8, 1993, attached
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hereto as Exhibit B and incorporated herein by reference as a part
of this Ordinance for all purposes. The Mayor is hereby authorized
and directed to execute said Purchase Contract for and on behalf of
the City and as the act and deed of this Council, and the City
Secretary is authorized to attest said Purchase Contract, and in
regard to the approval and execution of the Purchase Contract, the
Council hereby finds, determines and declares that the
representations, warranties and agreements of the City contained
therein are true and correct in all material respects and shall be
honored and performed by the City.
Furthermore, the use of the Preliminary Official Statement,
dated May 25, 1993 in connection with the public offering and sale
of the Bonds is hereby ratified, confirmed and approved in all
respects. The final Official Statement reflecting the terms of
sale, attached as Exhibit A to the Purchase Contract (together with
such changes approved by the Mayor, City Secretary, City Manager or
Director of Fiscal and Human Resources, any one or more of said
officials) , shall be and is hereby in all respects approved and the
Purchasers are hereby authorized to use and distribute said final
Official Statement, dated June 8, 1993, in the reoffering, sale and
delivery of the Bonds to the public. The Mayor and City Secretary
are further authorized and directed to manually execute and deliver
for and on behalf of the City copies of said Official Statement in
final form as may be required by the Purchasers, and such Official
Statement in the final form and content manually executed by any
one or more of said officials shall be deemed to be approved by the
City Council and constitute the Official Statement authorized for
distribution and use by the Purchasers.
SECTION 16: Oualified Tax Exempt Obligations. In accordance
with the provisions of paragraph (3) of subsection (b) of Section
265 of the Code, the City hereby designates the Bonds to be
"qualified tax exempt obligations" in that the Bonds are not
"private activity bonds" as defined in the Code and the reasonably
anticipated amount of "qualified tax exempt obligations" be
issued by the City (including all subordinate entities of __y)
for the calendar year in which the Bonds are issued will not exceed
$10,000,000.
SECTION 17: Special Escrow Agreement Approval and
Execution. The "Special Escrow Agreement" (the "Agreement ") by and
between the City and Bank One, Texas, NA, Fort Worth, Texas (the
"Escrow Agent ") , attached hereto as Exhibit C and incorporated
herein by reference as a part of this Ordinance for all purposes,
is hereby approved as to form and content, and such Agreement in
substantially the form and substance attached hereto, together with
such changes or revisions as may be necessary to accomplish the
refunding or benefit the City, is hereby authorized to be executed
by the Mayor and City Secretary for and on behalf of the City and
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as the act and deed of the City Council; and such Agreement as
executed by said officials shall be deemed approved by the City
Council and constitute the Agreement herein approved.
Furthermore, appropriate officials of the City in cooperation
with the Escrow Agent are hereby authorized and directed to make
the necessary arrangements for the purchase of the Federal
Securities referenced in the Agreement and the delivery thereof to
the Escrow Agent on the day of delivery of the Bonds to the
Purchasers for deposit to the credit of the "SPECIAL 1993 CITY OF
EULESS, TEXAS, REFUNDING BOND ESCROW FUND" (the "Escrow Fund ") ; all
as contemplated and provided in Article 717k, V.A.T.C.S., as
amended, this Ordinance and the Agreement.
SECTION 18: Control and Custody of Bonds. The Mayor of the
City shall be and is hereby authorized to take and have charge of
all necessary orders and records pending investigation by the
Attorney General of the State of Texas, including the printing and
supply of definitive Bonds, and shall take and have charge and
control of the Initial Bond(s) pending the approval thereof by the
Attorney General, the registration thereof by the Comptroller of
Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Mayor, City Secretary, City Manager and
Director of Fiscal and Human Resources, individually or
collectively, are hereby authorized and directed to furnish and
execute such agreements, documents and certifications relating to
the City and the issuance, sale and delivery of the Bonds,
including certifications as to facts, estimates, circumstances and
reasonable expectations pertaining to the use, expenditure and
investment of the proceeds of the Bonds, as may be necessary for
the approval of the Attorney General, the registration by the
Comptroller of Public Accounts and the delivery of the Bonds to the
Purchasers, and, together with the City's financial advisor, bond
counsel and the Paying Agent /Registrar, make the necessary
arrangements for the delivery of the Initial Bond(s) to the
Purchasers and the initial exchange thereof for definitive Bonds.
SECTION 19: Proceeds of Sale. Immediately following the
delivery of the Bonds, the proceeds of sale (less certain costs of
issuance and the accrued interest received from the Purchaser of
the Bonds) shall be deposited with the Escrow Agent for application
and disbursement in accordance with the provisions of the
Agreement. The proceeds of sale of the Bonds not so deposited
with the Escrow Agent for the refunding of the Refunded Obligations
shall be disbursed for payment of costs of issuance and deposited
in the Interest and Sinking Fund for the Bonds.
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Additionally, on or immediately prior to the date of the
delivery of the Bonds to the Purchasers, the Director of Fiscal and
Human Resources shall cause to be transferred in immediately
available funds in the sum of $194,136.04 to the Escrow Agent from
moneys on hand in the interest and sinking funds maintained for the
payment of the Refunded Bonds to accomplish the refunding.
SECTION 20: Notices to Holders - Waiver. Wherever this
Ordinance provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and sent by United States Mail, first class
postage prepaid, to the address of each Holder appearing in the
Security Register at the close of business on the business day next
preceding the mailing of such notice.
In any case where notice to Holders is given by mail, neither
the failure to mail such notice to any particular Holders, nor any
defect in any notice so mailed, shall affect the sufficiency of
such notice with respect to all other Bonds. Where this Ordinance
provides for notice in any manner, such notice may be waived in
writing by the Holder entitled to receive such notice, either
before or after the event with respect to which such notice is
given, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Paying
Agent/ Registrar, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such waiver.
SECTION 21: Cancellation. All Bonds surrendered for
payment, redemption, transfer, exchange, or replacement, if
surrendered to the Paying Agent/ Registrar, shall be promptly
cancelled by it and, if surrendered to the City, shall be delivered
to the Paying Agent /Registrar and, if not already cancelled, shall
be promptly cancelled by the Paying Agent/ Registrar. The City may
at any time deliver to the Paying Agent /Registrar for cancellation
any Bonds previously certified or registered and delivered which
the City may have acquired in any manner whatsoever, and all Bonds
so delivered shall be promptly cancelled by the Paying
Agent /Registrar. All cancelled Bonds held by the Paying
Agent /Registrar shall be returned to the City.
SECTION 22: Market Opinion. The Purchasers' obligation to
accept delivery of the Bonds is subject to being furnished a final
opinion of Fulbright & Jaworski, Dallas, Texas, approving the Bonds
as to their validity, said opinion to be dated and delivered as of
the date of delivery and payment for the Bonds. An executed
counterpart of said opinion shall accompany the global certificates
deposited with The Depository Trust Company or a reproduction
thereof shall be printed on the definitive Bonds in the event the
book entry only system shall be discontinued.
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SECTION 23: CUSIP Numbers. CUSIP numbers may be printed or
typed on the Bonds deposited with The Depository Trust Company or
on printed definitive Bonds. It is expressly provided, however,
that the presence or absence of CUSIP numbers on the definitive
Bonds shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Bonds as
to legality are to be held responsible for CUSIP numbers
incorrectly printed or typed on the definitive Bonds.
SECTION 24: Benefits of Ordinance. Nothing in this
Ordinance, expressed or implied, is intended or shall be construed
to confer upon any person other than the City, the Paying
Agent /Registrar and the Holders, any right, remedy, or claim, legal
or equitable, under or by reason of this Ordinance or any provision
hereof, this Ordinance and all its provisions being intended to be
and being for the sole and exclusive benefit of the City, the
Paying Agent /Registrar and the Holders.
SECTION 25: Inconsistent Provisions. All ordinances,
orders or resolutions, or parts thereof, which are in conflict or
inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict, and the provisions of this
Ordinance shall be and remain controlling as to the matters
contained herein.
SECTION 26: Governing Law. This Ordinance shall be
construed and enforced in accordance with the laws of the State of
Texas and the United States of America.
SECTION 27: Effect of Headings. The Section headings
herein are for convenience only and shall not affect the
construction hereof.
SECTION 28: Construction of Terms. If appropriate in the
context of this Ordinance, words of the singular number shall be
considered to include the plural, words of the plural number shall
be considered to include the singular, and words of the masculine,
feminine or neuter gender shall be considered to include the other
genders.
SECTION 29: Severability. If any provision of this
Ordinance or the application thereof to any circumstance shall be
held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be
valid, and the City Council hereby declares that this Ordinance
would have been enacted without such invalid provision.
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SECTION 30: Incorporation of Findings and Determinations.
The findings and determinations of the City Council contained in
the preamble hereof are hereby incorporated by reference and made
a part of this Ordinance for all purposes as if the same were
restated in full in this Section.
SECTION 31: Insurance. The Bonds have been offered and
sold with the principal of and interest thereon being insured by
Municipal Bond Investors Assurance Corporation (hereinafter called
"MBIA") in accordance with a Financial Guaranty Insurance Policy
(the "Insurance Policy ") and while such insurance is in full force
and effect, the City agrees that:
(a) The City shall furnish to MBIA all notices
required to be given to Holders, including any notice of
the resignation or removal of the Paying Agent /Registrar
and the appointment of a successor thereto and, on an
annual basis, copies of the City's audited financial
statements and annual budget. All notices required to be
given to MBIA shall be in writing and shall be sent by
registered or certified mail addressed to Municipal Bond
Investors Assurance Corporation, 113 King Street, Armonk,
New York 10504, Attention: Surveillance.
(b) The City shall deliver to MBIA a copy of the
disclosure document, if any, circulated with respect to
any additional obligations issued by the City.
(c) All amendments, changes and modification to
this Ordinance or the Agreement approved by MBIA shall be
sent to Standard & Poor's Corporation.
SECTION 32: Public Meeting. It is officially found,
determined, and declared that the meeting at which this Ordinance
is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered
at such meeting, including this Ordinance, was given, all as
required by Article 6252 -17, Vernon's Texas Civil Statutes, as
amended.
ooez�eo
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SECTION 33: Effective Date. This Ordinance shall be in
force and effect from and after its second reading and final
adoption on the date shown below, and it is so ordained.
PASSED ON FIRST READING, May 25, 1993.
PASSED ON SECOND READING AND FINALLY ADOPTED, this June 8,
1993.
ATTEST:
e
Ity Secr :tary
(City Seal)
uc:rc: n
CITY OF EULESS, TEXAS
-30-
THIS AGREEMENT entered into as of June 8, 1993 (this
"Agreement "), by and between the City of Euless, Texas (the
"Issuer "), and Ameritrust Texas National Association, a banking
association duly organized and existing under the laws of the
United States of America, (the "Bank ").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the
execution and delivery of its "City of Euless, Texas, General
Obligation Refunding Bonds, Series 1993" (the "Securities ") , dated
June 1, 1993, such Securities to be issued in fully registered
form only as to the payment of principal and interest thereon; and
WHEREAS, the Securities are scheduled to be delivered to the
initial purchasers thereof on or about June 29, 1993; and
WHEREAS, the Issuer has selected the Bank to serve as Paying
Agent /Registrar in connection with the payment of the principal
of, premium, if any, and interest on said Securities and with
respect to the registration, transfer and exchange thereof by the
registered owners thereof; and
WHEREAS, the Bank has agreed to serve in such capacities for
and on behalf of the Issuer and has full power and authority to
perform and serve as Paying Agent /Registrar for the Securities;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01. Appointment.
The Issuer hereby Yr,r_ -..3 the Bank to serve as Paying Agent
with respect to the Securities, and, as Paying Agent for the
Securities, the Bank shall be responsible for paying on behalf of
the Issuer the principal, premium (if any), and interest on the
Securities as the same become due and payable to the registered
owners thereof; all in accordance with this Agreement and the
"Bond Resolution" (hereinafter defined). The Issuer hereby
appoints the Bank as Registrar with respect to the Securities and,
as Registrar for the Securities, the Bank shall keep and maintain
for and on behalf of the Issuer books and records as to the
0092773
ownership of said Securities and with respect to the transfer and
exchange thereof as provided herein and in the "Bond Resolution ".
The Bank hereby accepts its appointment, and agrees to serve
as the Paying Agent and Registrar for the Securities.
Section 1.02. Compensation.
As compensation for the Bank's services as Paying
Agent /Registrar, the Issuer hereby agrees to pay the Bank the fees
and amounts set forth in Annex A attached hereto:
In addition, the Issuer agrees to reimburse the Bank upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Bank in accordance with any of the
provisions hereof (including the reasonable compensation and the
expenses and disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
"Acceleration Date" on any Security means the date on
and after which the principal or any or all installments of
interest, or both, are due and payable on any Security which
has become accelerated pursuant to the terms of the Security.
"Bank Office" means the principal offices of the Bank
located at the address appearing on page 12 hereof. The Bank
will notify the Issuer in writing of any change in location
of the Bank Office.
"Bond Resolution" means the resolution, order, or
ordinance of the governing body of the Issuer pursuant to
which the Securities are issued, certified by the Secretary
or any other officer of the Issuer and delivered to the Bank.
"Fiscal Year" means the fiscal year of the Issuer,
ending September 30th.
"Holder" and "Security Holder" each means the Person in
whose name a Security is registered in the Security Register.
ai
0092773
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"Issuer Request" and "Issuer Order" means a written
request or order signed in the name of the Issuer by the
Mayor, City Secretary, City Manager, or Director of Fiscal
and Human Resources, any one or more of said officials, and
delivered to the Bank.
"Legal Holiday" means a day on which the Bank is
required or authorized to be closed.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision of a government.
"Predecessor Securities" of any particular Security
means every previous Security evidencing all or a portion of
the same obligation as that evidenced by such particular
Security (and, for the purposes of this definition, any
mutilated, lost, destroyed, or stolen Security for which a
replacement Security has been registered and delivered in
lieu thereof pursuant to Section 4.06 hereof and the
Resolution).
"Redemption Date" when used with respect to any Security
to be redeemed means the date fixed for such redemption
pursuant to the terms of the Bond Resolution.
"Responsible Officer" when used with respect to the Bank
means the Chairman or Vice - Chairman of the Board of
Directors, the Chairman or Vice - Chairman of the Executive
Committee of the Board of Directors, the President, any Vice
President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Trust Officer or Assistant Trust
officer, or any other officer of the Bank customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security Register" means a register maintained by the
Bank on behalf of the Issuer providing for the registration
and transfers of Securities.
"Stated Maturity" means the date specified in the Bond
Resolution the principal of a Security is scheduled to be due
and payable.
v
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Section 2.02. Other Definitions.
The terms "Bank," "Issuer," and "Securities (Security)" have
the meanings assigned to them in the recital paragraphs of this
Agreement.
The term "Paying Agent /Registrar" refers to the Bank in the
performance of the duties and functions of this Agreement.
ARTICLE THREE
PAYING AGENT
Section 3.01. Duties of Paying Agent.
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer the principal of each
Security at its Stated Maturity, Redemption Date, or Acceleration
Date, to the Holder upon surrender of the Security to the Bank
Office.
As Paying Agent, the Bank shall, provided adequate collected
funds have been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer
Security when due, by computing the amount
each Holder and making payment thereof t
Securities (or their Predecessor Securitie
All payments of principal and /or interest o
registered owners shall be accomplished
checks, payable to the registered owners,
account provided in Section 5.05 hereof,
mail, first class, postage prepaid, to th e
the Security Register or (2) by such other
the Bank, requested in writing by the Holde
and expense.
Section 3.02. Payment Dates.
the interest on each
of interest to be paid
o the Holders of the
s) on the Record Date.
n the Securities to the
1) by the issuance of
drawn on the fidicuary
sent by United States
address appearing on
method, acceptable to
r at the Holder's risk
The Issuer hereby instructs the Bank to pay the principal of
and interest on the Securities at the dates specified in the Bond
Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01. Security Register - Transfers and Exchanges.
The Bank agrees to keep and maintain for and on behalf of the
Issuer at the Bank Office books and records (herein sometimes
0092773
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referred to as the "Security Register ") for recording the names
and addresses of the Holders of the Securities, the transfer,
exchange and replacement of the Securities and the payment of the
principal of and interest on the Securities to the Holders and
containing such other information as may be reasonably required by
the Issuer and subject to such reasonable regulations as the
Issuer and Bank may prescribe. All transfers, exchanges and
replacement of Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer, the signature on which has been guaranteed by an officer
of a federal or state bank or a member of the National Association
of Securities Dealers, in form satisfactory to the Bank, duly
executed by the Holder thereof or his agent duly authorized in
writing.
The Bank may request any supporting documentation it feels
necessary to effect a re- registration, transfer or exchange of the
Securities.
To the extent possible and under reasonable circumstances,
the Bank agrees that, in relation to an exchange or transfer of
Securities, the exchange or transfer by the Holders thereof will
be completed and new Securities delivered to the Holder or the
assignee of the Holder in not more than three (3) business days
after the receipt of the Securities to be cancelled in an exchange
or transfer and the written instrument of transfer or request for
exchange duly executed by the Holder, or his duly authorized
agent, in form and manner satisfactory to the Paying
Agent /Registrar.
Section 4.02. certificates.
The Issuer shall provide an adequate inventory of printed
Securities to facilitate transfers or exchanges thereof. The Bank
covenants that the inventory of printed Securities will be kept in
safekeeping pending their use and reasonable care will be
exercised by the Bank in maintaining such Securities in
safekeeping, which shall be not less than the care maintained by
the Bank for debt securities of other governments or corporations
for which it serves as registrar, or that is maintained for its
own securities.
Section 4.03. Form of Security Register.
The Bank, as Registrar, will maintain the Security Register
relating to the registration, payment, transfer and exchange of
the Securities in accordance with the Bank's general practices and
procedures in effect from time to time. The Bank shall not be
0092773
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obligated to maintain such Security Register in any form other
than those which the Bank has currently available and currently
utilizes at the time.
The Security Register may be maintained in written form or in
any other form capable of being converted into written form within
a reasonable time.
Section 4.04. List of Security Holders.
The Bank will provide the Issuer at any time requested by the
Issuer, upon payment of the required fee, a copy of the
information contained in the Security Register. The Issuer may
also inspect the information contained in the Security Register at
any time the Bank is customarily open for business, provided that
reasonable time is allowed the Bank to provide an up -to -date
listing or to convert the information into written form.
The Bank will not release or disclose the contents of the
Security Register to any person other than to, or at the written
request of, an authorized officer or employee of the Issuer,
except upon receipt of a court order or as otherwise required by
law. Upon receipt of a court order and prior to the release or
disclosure of the contents of the Security Register, the Bank will
notify the Issuer so that the Issuer may contest the court order
or such release or disclosure of the contents of the Security
Register.
Section 4.05. Return of Cancelled Certificates.
The Bank will, at such reasonable intervals as it determines,
surrender to the Issuer, Securities in lieu of which or in
exchange for which other Securities have been issued, or which
have been paid.
Section 4.06. Mutilated, Destroyed, Lost or Stolen Securi-
ties.
The Issuer hereby instructs the Bank, subject to the
provisions of Section 11 of the Bond Resolution, to deliver and
issue Securities in exchange for or in lieu of mutilated,
destroyed, lost, or stolen Securities as long as the same does not
result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost
or stolen, the Bank may execute and deliver a replacement Security
of like form and tenor, and in the same denomination and bearing
a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in
substitution for such destroyed, lost or stolen Security, only
0092773 l.. ,... ...
Sfl
upon the approval of the Issuer and after (i) the filing by the
Holder thereof with the Bank of evidence satisfactory to the Bank
of the destruction, loss or theft of such Security, and of the
authenticity of the ownership thereof and (ii) the furnishing to
the Bank of indemnification in an amount satisfactory to hold the
Issuer and the Bank harmless. All expenses and charges associated
with such indemnity and with the preparation, execution and
delivery of a replacement Security shall be borne by the Holder of
the Security mutilated, or destroyed, lost or stolen.
Section 4.07. Transaction Information to Issuer.
The Bank will, within a reasonable time after receipt of
written request from the Issuer, furnish the Issuer information as
to the Securities it has paid pursuant to Section 3.01, Securities
it has delivered upon the transfer or exchange of any Securities
pursuant to Section 4.01, and Securities it has delivered in
exchange for or in lieu of mutilated, destroyed, lost, or stolen
Securities pursuant to Section 4.06.
ARTICLE FIVE
THE BANK
Section 5.01. Duties of Bank.
The Bank undertakes to perform the duties set forth herein
and agrees to use reasonable care in the performance thereof.
Section 5.02. Reliance on Documents, Etc.
(a) The Bank may conclusively rely, as to the truth of the
statements and correctness of the opinions expressed therein, on
certificates or opinions furnished to the Bank.
(b) The Bank shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Bank was negligent in ascertaining the pertinent
facts.
(c) No provisions of this Agreement shall require the Bank
to expend or risk its own funds or otherwise incur any financial
liability for performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risks or
liability is not assured to it.
(d) The Bank may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
0092773 -
arm
direction, consent, order, bond, note, security, or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties. without limiting the
generality of the foregoing statement, the Bank need not examine
the ownership of any Securities, but is protected in acting upon
receipt of Securities containing an endorsement or instruction of
transfer or power of transfer which appears on its face to be
signed by the Holder or an agent of the Holder. The Bank shall
not be bound to make any investigation into the facts or matters
stated in a resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
note, security, or other paper or document supplied by Issuer.
(e) The Bank may consult with counsel, and the written
advice of such counsel or any opinion of counsel shall be full and
complete authorization and protection with respect to any action
taken, suffered, or omitted by it hereunder in good faith and in
reliance thereon.
(f) The Bank may exercise any of the powers hereunder and
perform any duties hereunder either directly or by or through
agents or attorneys of the Bank.
Section 5.03. Recitals of Issuer.
The recitals contained herein with respect to the Issuer and
in the Securities shall be taken as the statements of the Issuer,
and the Bank assumes no responsiblity for their correctness.
The Bank shall in no event be liable to the Issuer, any
Holder or Holders of any Security, or any other Person for any
amount due on any Security from its own funds.
Section 5.04. May Hold Securities.
The Bank, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the
Issuer with the same rights it would have if it were not the
Paying Agent /Registrar, or any other agent.
Section 5.05. Moneys Held by Bank - Fiduciary Account/
Collateralization.
A fiduciary account shall at all times be kept and maintained
by the Bank for the receipt, safekeeping and disbursement of
moneys received from the Issuer hereunder for the payment of the
Securities, and money deposited to the credit of such account
until paid to the Holders of the Securities shall be continuously
collaterialized by securities or obligations which qualify and are
eligible under both the laws of the State of Texas and the laws of
0092773
-8-
the United States of America to secure and be pledged as
collateral for fiduciary accounts to the extent such money is not
insured by the Federal Deposit Insurance Corporation. Payments
made from such fiduciary account shall be made by check drawn on
such fiduciary account unless the owner of such Securities shall,
at its own expense and risk, request such other medium of payment.
The Bank shall be under no liability for interest on any
money received by it hereunder.
Subject to the applicable unclaimed property laws of the
State of Texas, any money deposited with the Bank for the payment
of the principal, premium (if any), or interest on any Security
and remaining unclaimed for four years after final maturity of the
Security has become due and payable will be paid by the Bank to
the Issuer, and the Holder of such Security shall thereafter look
only to the Issuer for payment thereof, and all liability of the
Bank with respect to such moneys shall thereupon cease.
Section 5.06. Indemnification.
To the extent permitted by law, the Issuer agrees to
indemnify the Bank for, and hold it harmless against, any loss,
liability, or expense incurred without negligence or bad faith on
its part, arising out of or in connection with its acceptance or
administration of its duties hereunder, including the cost and
expense against any claim or liability in connection with the
exercise or performance of any of its powers or duties under this
Agreement.
Section 5.07. Interoleader.
The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over its
person as well as funds on deposit, in either a Federal or State
District Court located in the State and County where either the
Bank Office or the administrative offices of the Issuer is
located, and agree that service of process by certified or
registered mail, return receipt requested, to the address referred
to in Section 6.03 of this Agreement shall constitute adequate
service. The Issuer and the Bank further agree that the Bank has
the right to file a Bill of Interpleader in any court of competent
jurisdiction to determine the rights of any Person claiming any
interest herein.
Section 5.08. DT Services.
It is hereby represented and warranted that, in the event the
Securities are otherwise qualified and accepted for "Depository
Trust Company" services or equivalent depository trust services by
0092773
-9-
other organizations, the Bank has the capability and, to the
extent within its control, will comply with the "Operational
Arrangements ", effective August 1, 1987, which establishes
requirements for securities to be eligible for such type
depository trust services, including, but not limited to,
requirements for the timeliness of payments and funds
availability, transfer turnaround time, and notification of
redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment.
This Agreement may be amended only by an agreement in writing
signed by both of the parties hereto.
Section 6.02. Assignment.
This Agreement may not be assigned by either party without
the prior written consent of the other.
Section 6.03. Notices.
Any request, demand, authorization, direction, notice,
consent, waiver, or other document provided or permitted hereby to
be given or furnished to the Issuer or the Bank shall be mailed
or delivered to the Issuer or the Bank, respectively, at the
addresses shown on page 12.
Section 6.04. Effect of Headings.
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
Section 6.05. Successors and Assigns.
All covenants and agreements herein by the Issuer shall bind
its successors and assigns, whether so expressed or not.
Section 6.06. Severability.
In case any provision herein shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
0092773
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Section 6.07. Benefits of Aoreeme
Nothing herein, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, any
benefit or any legal or equitable right, remedy, or claim
hereunder.
Section 6.08. EntJ
This Agreement and the Bond Resolution constitute the entire
agreement between the parties hereto relative to the Bank acting
as Paying Agent /Registrar and if any conflict exists between this
Agreement and the Bond Resolution, the Bond Resolution shall
govern.
Section 6.09.
This Agreement
each of which shall
constitute one and
Section 6.10
may be executed in any
be deemed an original
the same Agreement.
Termination.
number of counterparts,
and all of which shall
This Agreement will terminate (i) on the date of final
payment of the principal of and interest on the Securities to the
Holders thereof or (ii) may be earlier terminated by either party
upon sixty (60) days written notice; provided, however, an early
termination of this Agreement by either party shall not be
effective until (a) a successor Paying Agent /Registrar has been
appointed by the Issuer and such appointment accepted and (b)
notice given to the Holders of the Securities of the appointment
of a successor Paying Agent/ Registrar. Furthermore, the Bank and
Issuer mutually agree that the effective date of an early
termination of this Agreement shall not occur at any time which
would disrupt, delay or otherwise adversely affect the payment of
the Securities.
Upon an early termination of this Agreement, the Bank agrees
to promptly transfer and deliver the Security Register (or a copy
thereof) , together with other pertinent books and records relating
to the Securities, to the successor Paying Agent /Registrar
designated and appointed by the Issuer.
The provisions of Section 1.02 and of Article Five shall
survive and remain in full force and effect following the
termination of this Agreement.
0092773
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Section 6.11. Governing Law.
This Agreement shall be construed in accordance with and
governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
(SEAL]
Attest:
Title:
(CITY SEAL)
Attest:
City Secretary
AMERITRUST TEXAS NATIONAL
ASSOCIATION
BY _
Title:
Address: P. O. Box 2320
Dallas, TX 75221 -2320
CITY OF EULESS, TEXAS
BY
Mayor
Address: 201 North Ector Drive
Euless, Texas 76039
0092773
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$6,695,000
CITY OF EULESS, TEXAS
General Obligation Refunding Bonds
Series 1993
PURCHASE CONTRACT
June 8, 1993
The Honorable Mayor and Members of the City Council
City of Euless
201 North Ector Drive
Euless, Texas 76039 -3595
Dear Mayor and Members of the City Council:
Rauscher Pierce Refsnes Inc. and Smith Ramey, Harris Upham Co., Incorporated (collectively, the
'Underwriter'), offer to enter into this Purchase Contract with the City of Euless, Texas (the 'City'). This
offer is made subject to the City's acceptance of this Purchase Contract on or before 10:00 p.m. Central Time
on June 8, 1993.
1. Purchase and Sale of the Bonds. Upon the terms and conditions and upon the basis of the
representations set forth herein, the Underwriter hereby agrees, jointly and severally, to purchase from the
City, and the City hereby agrees to sell and deliver to the Underwriter an aggregate of $6,695,000 principal
amount of City of Euless, Texas General Obligation Refunding Bonds, Series 1993 (the 'Bonds'). The Bonds
shall have the dated date, the maturities and bear interest from the date at the rate or rates per annum as
shown in the Official Statement (hereinafter defined), such interest being payable as shown in the Official
Statement. The purchase price for the Bonds shall be S6,635,465.90 (representing the principal amount of the
Bonds less an Underwriter's discount on the Bonds of 537,692.85 and less an aggregate original issue discount
on the Bonds in the amount of $21,841.25) plus accrued interest on the Bonds from their date to the date of
the payment for and delivery of the Bonds.
2. Ordinance. The Bonds shall be as described in and shall be issued and secured under the provisions
of the ordinance authorizing the issuance and sale of the Bonds adopted by the City on June 8, 1993 (the
'Ordinance'). The Bonds shall be secured and payable as provided in the Ordinance.
3. Public Offering. It shall be a condition of the obligations of the City to sell and deliver the Bonds
to the Underwriter, and of the obligations of the Underwriter to purchase and accept delivery of the Bonds,
that the entire principal amount of the Bonds authorized by the Ordinance shall be sold and delivered by the
City and accepted and paid for by the Underwriter at the Closing. The Underwriter agrees to make a bona
fide public offering of all of the Bonds, at not in excess of the initial public offering prices, as set forth in the
Official Statement, plus interest accrued on the Bonds from the date of the Bonds.
4. Security Deposit Delivered to the City herewith is a corporate check of Rauscher Pierce Refsnes,
Inc payable to the order of the City in the amount of one percent (1 %) of the principal amount of the Bonds.
The City agrees to hold such check uncashed until the Closing to ensure the performance by the Underwriter
of its obligation to purchase, accept delivery of and pay for the Bonds at the Closing. Concurrently with the
payment by the Underwriter of the purchase price of the Bonds, the City shall return such check to Rauscher
Pierce Refsnes, Inc. as provided in Paragraphs 7 and 8 hereof. Should the City fail to deliver the Bonds at
the Closing, or should the City be unable to satisfy the conditions of the obligations of the Underwriter to
purchase, accept delivery of and pay for the Bonds, as set forth in this Purchase Contract (unless waived by
the Underwriter), or should such obligations of the Underwriter be terminated for any reason permitted by
this Purchase Contract, such check shall immediately be returned to Rauscher Pierce Refsnes, Inc In the
event the Underwriter fails (other than for a reason permitted hereunder) to purchase, accept delivery of and
pay for the Bonds at the Closing as herein provided, such check shall be retained by the City as and for full
liquidated damages for such failure of the Underwriter and for any defaults hereunder on the part of the
Underwriter. Rauscher Pierce Refsnes, Inc hereby agrees not to stop or cause payment on said check to be
stopped unless the City has breached any of the terms of this Purchase Contract
5. Off cial Statement Exhibit A hereto is the Official Statement, including the cover pages and
Appendices thereto, of the City, dated June 8, 1993, with respect to the Bonds. The Official Statement,
including the cover pages and Appendices thereto, as further amended only in the manner herein provided,
is hereinafter called the 'Official Statement' The City hereby authorizes the Ordinance and the Official
Statement and the information therein contained to be used by the Underwriter in connection with the public
offering and sale of the Bonds. The City confirms its consent to the use by the Underwriter prior to the date
hereof of the Preliminary Official Statement, relative to the Bonds, dated May 25, 1993 (the 'Preliminary
Official StatemenP), in connection with the preliminary public offering and sale of the Bonds, and it is
'deemed final' as of its date, within the meaning, and for the purposes, of Rule 15c2 -12 promulgated under
authority granted by the federal Securities and Exchange Act of 1934 (the 'Rule'). The City agrees to
cooperate with the Underwriter to provide a supply of final Official Statements within seven business days of
the date hereof in sufficient quantities to comply with the Underwriter's obligations under the Rule and the
applicable rules of the Municipal Securities Rulemaking Board. The Underwriter will use its best efforts to
assist the City in the - preparation of the final Official Statement in order to ensure compliance with the
aforementioned rules.
If at any time after the date of this Purchase Contract but before the first to occur of (i) the date upon
which the Underwriter notifies the City that the period of the initial public offering of the Bonds has expired
or (ii) the date that is 90 days after the date hereof, any event shall occur which might or would cause the
Official Statement to contain any untrue statement of a material fact or to omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, the City shall notify the Underwriter and, if in the opinion of
the Underwriter such event requires the preparation and publication of a supplement or amendment to the
Official Statement, the City will at its expense supplement or amend the Official Statement in the form and
in a manner approved by the Underwriter and furnish to the Underwriter a reasonable number of copies
requested by the Underwriter in order to enable the Underwriter to comply with the Rule.
6. Representations, Warranties and Agreements of the City. On the date hereof, the City represents,
warrants and agrees as follows:
(a) The City is a home rule municipality and a political subdivision of the State of Texas and a body
politic and corporate, and has full legal right, power and authority to own and operate its municipal
airport, to enter into this Purchase Contract, to adopt the Ordinance, to sell the Bonds, and to issue and
w- ' R'
deliver the Bonds to the Underwriter as provided herein and to carry out and consummate all other
transactions contemplated by the Ordinance and this Purchase Contract;
(b) By official action of the City prior to or concurrently with the acceptance hereof, the City has
duty adopted the Ordinance, has duly authorized and approved the execution and delivery of, and the
performance by the City of the obligations contained in, the Bonds and this Purchase Contract and has
duty authorized and approved the performance by the City of its obligations contained in the Ordinance
and in this Purchase Contract;
(c) The City is not in breach of or default under any applicable law or administrative regulation of
the State of Texas or the United States (including regulations of its agencies) or any applicable judgment
or decree or any loan agreement, note, order, agreement or other instrument, except as may be disclosed
in the Official Statement, to which the City is a party or, to its knowledge, is otherwise subject, which
would have a material and adverse effect upon the business or financial condition of the City; and the
execution and delivery this Purchase Contract by the City and the execution and delivery of the Bonds
and the adoption of the Ordinance by the City and compliance with the provisions of each thereof will
not violate or constitute a breach of or default under any existing law, administrative regulation,
judgment, decree or any agreement or other instrument to which the City is a party or, to the knowledge
of the City, is otherwise subject;
(d) All approvals, consents and orders of any governmental authority or agency having jurisdiction
of any matter which would constitute a condition precedent to the performance by the City of its
obligations to sell and deliver the Bonds hereunder will have been obtained prior to the Closing;
(e) At the time of the City's acceptance hereof and at the time of the Closing, the Official
Statement does not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading,
(f) Between the date of this Purchase Contract and the Closing, the City will not, without the prior
written consent of the Underwriter, issue any additional bonds, notes or other obligations for borrowed
money payable in whole or in part from ad valorem taxes, nor will there be any adverse change of a
material nature in the financial position of the City;
(g) Except as described in the Official Statement, no litigation is pending or, to the knowledge of
the City, threatened in any court affecting the corporate existence of the City, the title of its officers to
their respective offices, or seeking to restrain or enjoin the issuance or delivery of the Bonds, the levy,
collection or application of the ad valorem taxes of the City pledged or to be pledged to pay the principal
of and interest on the Bonds, or in any way contesting or affecting the issuance, execution, delivery,
payment, security or validity of the Bonds, or in any way contesting or affecting the validity or
enforceability of the Ordinance or this Purchase Contract, or contesting the powers of the City, or any
authority for the Bonds, the Ordinance or this Purchase Contract or contesting in any way the
completeness, accuracy or fairness of the Preliminary Official Statement or the Official Statement;
(h) The City will cooperate with the Underwriter in arranging for the qualification of the Bonds
for sale and the determination of their eligibility for investment under the laws of such jurisdictions as
the Underwriter designates, and will use its best efforts to continue such qualifications in effect so long
as required for distribution of the Bonds; provided, however, that the City will not be required to execute
a general consent to service of process or to qualify to do business in connection with any such
qualification in any jurisdiction;
(i) The descriptions of the Bonds and the Ordinance contained in the Official Statement accurately
summarize certain provisions of such instruments, and the Bonds, when validly executed, authenticated
-X JI8%*t 8 4
and delivered in accordance with the Ordinance and sold to the Underwriter as provided herein, will be
validly issued and outstanding obligations of the City entitled to the benefits of, and subject to the
limitations contained in, the Ordinance;
(j) If prior to the Closing an event occurs affecting the City which is materially adverse for the
purpose for which the Official Statement is to be used and is not disclosed in the Official Statement, the
City shall notify the Underwriter, and if in the opinion of the City and the Underwriter such event
requires a supplement or amendment to the Official Statement, the City will supplement or amend the
Official Statement in a form and in a manner approved by the Underwriter, and
(k) The financial statements contained in the Official Statement present fairly the financial position
of the City as of the date and for the period covered thereby and are stated on a basis substantially
consistent with that of the prior year's audited financial statements.
7. Closing. At 10:00 am., Central Time, on June 29, 1993 (the 'Closing'), the City will deliver the initial
bond or bonds (as defined in the Ordinance) to the Underwriter and, provided the Underwriter shall have
made arrangements with The Depository Trust Company ('DTC) for the Bonds to be immobilized and
thereafter traded as book -entry only bonds, the City shall take appropriate steps to provide DTC with one
definite bond for each year or maturity of the Bonds, and to provide the Underwriter with the other
documents hereinafter mentioned, and the Underwriter will accept such delivery and pay the purchase price
of the Bonds as set forth in Paragraph 1 hereof in immediately available funds. Concurrently with such
payment by the Underwriter, the City shall return to Rauscher Pierce Refsnes, Inc the check referred to in
paragraph 4 hereof. Delivery and payment as aforesaid shall be made at the office of Fulbright & Jaworksi,
2200 Ross Avenue, Suite 2800, Dallas, Texas 75201, or such other place, as shall have been mutually agreed
upon by the City and the Underwriter,
& Conditions. The Underwriter has entered into this Purchase Contract in reliance upon the
representations and warranties of the City contained herein and to be contained in the documents and
instruments to be delivered at the Closing, and upon the performance by the City of its obligations hereunder,
both as of the date hereof and as of the date of Closing. Accordingly, the Underwriter's obligations under this
Purchase Contract to purchase and pay for the Bonds shall be subject to the performance by the City of its
obligations to be performed hereunder and under such documents and instruments at or prior to the Closing,
and shall also be subject to the following conditions:
(a) The representations and warranties of the City contained herein shall be true, complete and
correct in all material respects on the date hereof and on and as of the date of Closing, as if made on
the date of Closing;
(b) At the time of the Closing, the Ordinance shall be in full force and effect, and the Ordinance
shall not have been amended, modified or supplemented and the Official Statement shall not have been
amended, modified or supplemented, except as may have been agreed to by the Underwriter,
(c) At the time of the Closing, all official action of the City related to the Ordinance shall be in
full force and effect and shall not have been amended, modified or supplemented;
(d) The City shall not have failed to pay principal or interest when due on any of its outstanding
obligations for borrowed money;
(e) At or prior to the Closing, the Underwriter shall have received each of the following documents:
(1) The Official Statement of the City executed on behalf of the City by the Mayor and City
Secretary,
R"
(2) The Ordinance certified by the City Secretary under its seal as having been duly adopted
by the City and as being in effect, with such changes or amendments as may have been agreed to by
the Underwriter,
(3) The opinion, dated the date of Closing, of Fulbright & Jaworski in substantially the form
and substance of Appendix C to the Official Statement;
(4) An opinion or certificate, dated on or prior to the date of Closing, of the Attorney
General of Texas, approving the Bonds as required by law and the registration certificate of the
Comptroller of Public Accounts of the State of Texas;
(5) The supplemental opinion, dated the date of Closing, of Bond Counsel, addressed to the
City and the Underwriter, to the effect that (A) the Purchase Contract has been duly authorized,
executed and delivered by the City and (assuming due authorization by the Underwriter) constitutes
a binding and enforceable agreement of the City in accordance with its terms; (B) in its capacity as
Bond Counsel, such firm has reviewed the information in the Official Statement under the captions
or subcaptions 'Plan of Financing; 'Bond Information' (except information contained under the
subcaptions "Book -Entry Only System' and 'Municipal Bond Insurance'), Tax Accounting
Treatment of Discount/Premium Bonds; Tax Exemption; 'Qualified Tax- Exempt Obligations' and
'Legal Investments and Eligibility to Secure Public Funds in Texas' and such firm is of the opinion
that such descriptions present a fair and accurate summary of the provisions of the laws and
instruments therein described; and (C) the Bonds are exempt from registration pursuant to the
Securities Act of 1933, as amended, and the Ordinance is exempt from qualification as an indenture
pursuant to the Trust Indenture Act of 1939, as amended
(6) An opinion of McCall, Parkhurst & Horton LL.P., Underwriter's Counsel addressed to
the Underwriter, and dated the date of Closing to the effect that: (i) the Bonds are exempt
securities within the meaning of Section 3(a)(2) of the Securities Act of 1933, as amended, and it
is not necessary in connection with the sale of the Bonds to the public to register the Bonds under
the Securities Act of 1933, as amended, or to qualify the Ordinance under the Trust Indenture Act
of 1939, as amended; and (ii) in their participation in the preparation of the Official Statement,
nothing has come to the attention of said firm which would lead them to believe that the Official
Statement (excluding the financial and statistical data and forecasts included therein, all as to which
no view need be expressed) contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading,
(7) A certificate, dated the date of Closing, signed by the City Manager and the Director of
Fiscal and Human Resources of the City, to the effect that (i) the representations and warranties
of the City contained herein are true and correct in all material respects on and as of the date of
Closing as if made on the date of Closing; (G) except to the extent disclosed in the Official
Statement, no litigation is pending or, to the knowledge of such persons, threatened in any court
to restrain or enjoin the issuance or delivery of the Bonds, or the levy, collection or application of
the ad valorem taxes pledged or to be pledged to pay the principal of and interest on the Bonds, or
the pledge thereof, or in any way contesting or affecting the validity of the Bonds, the Ordinance
or this Purchase Contract, or contesting the powers of the City or the authorization of the Bonds
or the Ordinance, or contesting in any way the accuracy, completeness or fairness of the Official
Statement (but in lieu of or in conjunction with such certificate, the Underwriter may, in its sole
discretion, accept certificates or opinions of the City Attorney that, in the opinion thereof, the issues
raised in any such pending or threatened litigation are without substance or that the contentions of
all plaintiffs therein are without merit); (iii) to the best of their knowledge, no event affecting the
City has occurred since the date of the Official Statement which should be disclosed in the Official
Statement for the purpose for which it is to be used or which it is necessary to disclose therein in
EXHIBIT B
order to make the statements and information therein not misleading in any respect; and (iv) that
there has not been any material and adverse change in the affairs or financial condition of the City
since September 30, 1992, the latest date as to which audited financial information is available;
(8) An opinion of the City Attorney addressed to the Underwriter and dated the date of
Closing substantially in the form and substance of Exhibit B hereto;
(9) A certificate, dated the date of the Closing, of the City Manager and/or the Director of
Fiscal and Human Resources to the effect that, on the basis of the facts, estimates and circumstances
in effect on the date of delivery of the Bonds, it is not expected that the proceeds of the Bonds will
be used in a manner that would cause the Bonds to be arbitrage bonds within the meaning of
Section 148 of the Internal Revenue Code of 1986, as amended;
(10) Evidence of the rating on the Bonds, which shall be "Aaa" or better by Moody's Investors
Service, Inc. ('Moody s') and "AAA' or better by Standard and Poor's Corporation ( "S &P "), shall
be delivered in a form acceptable to the Underwriter,
(11) Evidence satisfactory to the Underwriter that the Bonds have been insured by a company
having a claims - paying rating of not less than 'Aaa' by Moody's and 'AAA' by S &P; and
(12) Such additional legal opinions, certificates, instruments and other documents as Bond
Counsel or the Underwriter may reasonably request to evidence the truth, accuracy and
completeness, as of the date hereof and as of the date of Closing, of the City's representations and
warranties contained herein and of the statements and information contained in the Official
Statement and the due performance and satisfaction by the City at or prior to the date of Closing
of all agreements then to be performed and all conditions then to be satisfied by the City.
All of the opinions, letters, certificates, instruments and other documents mentioned above or elsewhere
in this Purchase Contract shall be deemed to be in compliance with the provisions hereof if, but only if, they
are satisfactory to the Underwriter.
If the City shall be unable to satisfy the conditions to the obligations of the Underwriter to purchase, to
accept delivery of and to pay for the Bonds as set forth in this Purchase Contract, or if the obligations of the
Underwriter to purchase, to accept delivery of and to pay for the Bonds shall be terminated for any reason
permitted by this Purchase Contract, this Purchase Contract shall terminate, the security deposit referred to
in Paragraph 4 of this Purchase Contract shall be returned to Rauscher Pierce Refsnes, Inc. and neither the
Underwriter nor the City shall be under further obligation hereunder, except that the respective obligations
of the City and the Underwriter set forth in Paragraphs 10 and 12 hereof shall continue in full force and effect.
9. Terminadon. The Underwriter may terminate its obligation to purchase the Bonds at any time before
the Closing if any of the following should occur:
(a) (f) Legislation shall have been enacted by the Congress of the United States, or recommended
to the Congress for passage by the President of the United States or favorably reported for passage to
either House of the Congress by any Committee of such House, or (ii) a decision shall have been
rendered by a court established under Article III of the Constitution of the United States or by the
United States Tax Court, or (iii) an order, ruling or regulation shall have been issued or proposed by or
on behalf of the Treasury Department of the United States or the Internal Revenue Service or any other
agency of the United States, or (iv) a release or official statement shall have been issued by the President
of the United States or by the Treasury Department of the United States or by the Internal Revenue
Service, the effect of which, in any such case described in clause (f), (ii), (iii), or (fv), would be to impose,
directly or indirectly, federal income taxation upon interest received on obligations of the general
character of the Bonds or upon income of the general character to be derived by the City, other than any
EXHI
imposition of federal income taxes upon interest received on obligations of the general character as the
Bonds on the date hereof and other than as disclosed in the Official Statement, in such a manner as in
the judgment of the Underwriter would materially impair the marketability or materially reduce the
market price of obligations of the general character of the Bonds.
(b) Any action shall have been taken by the Securities and Exchange Commission or by a court
which would require registration of any security under the Securities Act of 1933, as amended, or
qualification of any indenture under the Trust Indenture Act of 1939, as amended, in connection with the
public offering of the Bonds, or any action shall have been taken by any court or by any governmental
authority suspending the use of the Preliminary Official Statement or the Official Statement or any
amendment or supplement thereto, or any proceeding for that purpose shall have been initiated or
threatened in any such court or by any such authority.
(c) (i) The Constitution of the State of Texas shall he amended or an amendment shall be proposed,
or (ii) legislation shall be enacted, or (iii) a decision shall have been rendered as to matters of Texas law,
or (iv) any order, ruling or regulation shall have been issued or proposed by or on behalf of the State of
Texas by an official, agency or department thereof, affecting the tax status of the City, its property or
income, its bonds (including the Certificates) or the interest thereon, which in the judgment of the
Underwriter would materially affect the market price of the Bonds.
(d) (i) A general suspension of trading in bonds shall have occurred on the New York Stock
Exchange, or (ii) the United States shall have become engaged in hostilities (including the escalation of
any hostilities existing on the date hereof, whether or not foreseeable), the effect of which, in either case
described in clause (i) and (ii), is, in the judgment of the Underwriter, so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the delivery of the Bonds on the
terms and in the manner contemplated in this Purchase Contract and the Official Statement.
(e) An event described in Paragraph 60) hereof occurs which, in the opinion of the Underwriter,
requires a supplement or amendment to the Official Statement that is deemed by it, in its discretion, to
adversely affect the market for the Bonds.
(f) A general banking moratorium shall have been declared by authorities of the United States, the
State of New York or the State of Texas.
(g) A lowering of the ratings initially assigned to the Bonds by Moody s and S &P, shall occur prior
to the Closing.
10. Expenses. (a) The City shall pay out of the bond proceeds all expenses incident to the issuance of
the Bonds, including but not limited to: (i) the cost of the preparation, printing and distribution of the
Preliminary Official Statement and the Official Statement; (ii) the cost of the preparation and printing of the
Bonds; (iii) the fees and expenses of Bond Counsel to the City; (iv) the fees and disbursements of the City's
accountants, advisors, and of any other experts or consultants retained by the City; and (v) the fees for the
bond ratings and the premium for the policy of municipal bond insurance on the bonds and any travel or other
expenses incurred incident thereto;
(b) The Underwriter shall pay (f) all advertising expenses in connection with the offering of the Bonds;
(u) the cost of the preparation and printing of all the underwriting documents; and (iii) the fee of McCall,
Parkhurst & Horton LLP. as Underwriter's Counsel.
11. Notices. Any notice or other communication to be given to the City under this Purchase Contract
may be given by delivering the same in writing at the address for the City set forth above, and any notice or
other communication to be given to the Underwriter under this Purchase Contract may be given by delivering
EM- B
the same in writing to Rauscher Pierce Refsnes, Inc 2400 RPR Tower,Plaza of the Americas, Dallas, Texas
75201, Attention: Vincent Matrone.
12. Parties In Interest This Purchase Contract is made solely for the benefit of the City and the
Underwriter (including the successors or assigns of any Underwriter) and no other person shall acquire or have
any right hereunder or by virtue hereof. The City's representations, warranties and agreements contained in
this Purchase Contract shall remain operative and in full force and effect, regardless of (i) any investigations
made by or on behalf of the Underwriter, and (ii) delivery of any payment for the Bonds hereunder, and the
City's representations and warranties contained in Paragraph 6 of this Purchase Contract shall remain
operative and in full force and effect, regardless of any termination of this Purchase Contract
13. Effective Date. This Purchase Contract shall become effective upon the execution of the acceptance
hereof by the Mayor of the City and shall be valid and enforceable as of the time of such acceptance.
Accepted:
This 8th day of June, 1993
UM
Mayor
City of Euless, Texas
Attest:
City Secretary
City of Euless, Texas
Very truly yours,
RAUSCHER PIERCE REFSNES, INC.
SMITH BARNEY, HARRIS UPHAM & CO.,
INCORPORATED
By: Rauscher Pierce Refsnes, Inc
Title:
EXIT it
EXHIBIT A
OFFICIAL STATEMENT
EXHIS1 R
EXHIBIT B
OPINION OF THE CITY ATTORNEY
Rauscher Pierce Refsnes, Inc
2400 RPR Tower
Plaza of the Americas
Dallas, Texas 75201
Ladies and Gentlemen:
I am the City Attorney for the City of Euless, Texas (the 'City") and have acted as such in connection
with the issuance of "City of Euless, Texas General Obligation Refunding Bonds, Series 1993', in the aggregate
principal amount of 56,695,000 (the 'Bonds'), pursuant to the provisions of the ordinance duly adopted by the
City Council of the City on June 8, 1993 (the "Ordinance"). Capitalized terms not otherwise defined in this
opinion have the meanings assigned in the Purchase Contract.
In my capacity as City Attorney to the City, I have reviewed such agreements, documents, certificates,
opinions, letters, and other papers as I have deemed necessary or appropriate in rendering the opinions set
forth below.
In making my review, I have assumed the authenticity of all documents and agreements submitted to me
as originals conformity to the originals of all documents and agreements submitted to me as certified or
photostatic copies, the authenticity of the originals of such latter documents and agreements, and the accuracy
of the statement contained in such documents.
Based upon the foregoing, and subject to the qualifications and exceptions hereinafter set forth, I am of
the opinion that under the applicable laws of the United States of America and the State of Texas in force
and effect on the date hereof:
1. Based on reasonable inquiry made of the responsible City employees and public officials, the City
is not, to the best of my knowledge, in breach of or in default under any applicable law or
administrative regulation of the State of Texas or the United States, or any applicable judgment or
decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or
other instrument to which the City is party or is otherwise subject and, to the best of my knowledge
after due inquiry, no event has occurred and is continuing which, with the passage of time or the
giving of notice, or both, would constitute such a default by the City under any of the foregoing; and
the execution and delivery of the Purchase Contract and the Bonds and the adoption of the
Ordinance and compliance with the provisions of each of such agreements or instruments does not
constitute a breach of or default under any applicable law or administrative regulation of the State
of Texas or the United States or any applicable judgment or decree or, to the best of my knowledge,
any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement or other
instrument to which the City is a party or is otherwise subject; and
XASIT 8
2. Except as disclosed in the Official Statement, no litigation is pending, or, to my knowledge,
threatened, in any court (a) in any way challenging the titles of the Mayor or any of the other
members of the City Council to their respective offices, or (b) seeking to restrain or enjoin the
issuance or delivery of any of the Bonds, or the collection of taxes levied or to be levied to pay the
principal of and interest on the Bonds, or in any way contesting or affecting the validity or
enforceability of the Bonds, the Ordinance or the Purchase Contract, or contesting the powers of
the City or any authority for the issuance of the Bonds or the adoption of the Ordinance, or which
could have a material adverse impact on the financial condition of the City.
This opinion is furnished solely for your benefit and may be relied upon only by the addresses hereof or
anyone to whom specific permission is given in writing by me.
Very truly yours,
EXHIBIT 9
CI
THE STATE OF TEXAS
COUNTY OF DALLAS
THIS SPECIAL ESCROW AGREEMENT (the "Agreement ") , made and
entered into as of June 8, 1993, by and between the City of
Euless, Texas, a duly incorporated municipal corporation in
Tarrant County, Texas (the "City ") acting by and through the Mayor
and City Secretary, and Bank One, Texas, NA, Fort Worth, Texas, a
national banking association organized and existing under the laws
of the United States of America, or its successors or assigns
hereunder (the "Bank "),
W I T N E S S E T H
WHEREAS, the City has duly issued certain obligations now
outstanding in the aggregate amount $5,910,000 (hereinafter
collectively referred to as the "Refunded Obligations ") and more
particularly described as follows:
(1) City of Euless, Texas, General
Obligation Refunding Bonds, Series 1985 -A, dated
November 15, 1985, maturing on March 1, 1997
through March 1, 1999, and aggregating in
principal amount $2,295,000
(2) City of Euless, Texas, General
Obligation Bonds, Series 1986, dated June 1, 1986,
maturing on March 1, 1998 through March 1,
2004, and aggregating in principal amount $1,450,000
(3) City of Euless, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series 1989,
dated May 1, 1989, maturing on March 1, 2000
through March 1, 2007, and aggregating in
principal amount $ 950,000
(4) City of Euless, Texas, Tax and
Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series 1990,
dated August 1, 1990, maturing on March 1, 2001
through March 1, 2008, and aggregating in
principal amount $1,215,000
0082784 t
iii
WHEREAS, in accordance with the provisions of Article 717k,
V.A.T.C.S., as amended (the "Act "), the City is authorized to sell
refunding bonds in an amount sufficient to provide for the payment
of obligations to be refunded, deposit the proceeds of such
refunding bonds with any place of payment for the obligations being
refunded and enter into an escrow or similar agreement with such
place of payment for the safekeeping, investment, reinvestment,
administration and disposition of such deposit, upon such terms and
conditions as the parties may agree, provided such deposits may be
invested only in direct obligations of the United States of
America, including obligations the principal of and interest on are
unconditionally guaranteed by the United States of America,
(hereinafter called the "Federal Securities ") that mature and /or
bear interest payable at such times and in such amounts as will be
sufficient to provide for the scheduled payment of Refunded
Obligations; and
WHEREAS, the Refunded Obligations are scheduled to mature, or
be redeemed, and interest thereon is payable on the dates and in
the manner set forth in Exhibit A attached hereto and incorporated
herein by reference as a part of this Agreement for all purposes;
and
WHEREAS, the City on the 8th day of June, 1993, pursuant to an
ordinance (the "Bond ordinance ") finally passed and adopted by the
City Council, authorized the issuance of bonds known as "City of
Euless, Texas, General Obligation Refunding Bonds, Series 1993"
(the "Bonds ") , and such Bonds are being issued to refund, discharge
and make final payment of the principal of and interest on the
Refunded Obligations; and
WHEREAS, upon the delivery of the Bonds, the proceeds of sale,
together with other available funds of the City, are to be
deposited with the Bank and used in part to purchase the Federal
Securities listed and identified in Exhibit B attached hereto and
incorporated by reference as a part of this Agreement for all
purposes; and
WHEREAS, the Federal Securities shall be held and deposited to
the credit of the "Escrow Fund" to be established and maintained by
the Bank in accordance with this Agreement; and
WHEREAS, the Federal Securities, together with the beginning
cash balance in the Escrow Fund, shall mature and the interest
thereon shall be payable at such times to insure the existence of
monies sufficient to pay the principal amount of the Refunded
Obligations and the accrued interest thereon, as the same shall
become due in accordance with the terms of the ordinances
authorizing the issuance of the Refunded Obligations and as set
forth in Exhibit A attached hereto; and
q
OOM67
2
WHEREAS, the City has completed all arrangements for the
purchase of the Federal Securities listed in Exhibit B and the
deposit and credit of the same to the Escrow Fund as provided
herein; and
WHEREAS, the Bank is a national banking association organized
and existing under the laws of the United States of America,
possessing trust powers and is fully qualified and empowered to
enter into this Agreement; and
WHEREAS, in Section 17 of the Bond Ordinance, the City Council
duly approved and authorized the execution of this Agreement; and
WHEREAS, the City and the Escrow Agent, as the case may be,
shall take all action necessary to call, pay, redeem and retire
said Refunded Obligations in accordance with the provisions
thereof, including, without limitation, all actions required by the
ordinances authorizing the Refunded Obligations, the Act, the Bond
Ordinance and this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, and to secure the payment of the principal of and
the interest on the Refunded Obligations as the same shall become
due, the City and the Bank hereby mutually undertake, promise and
agree as follows:
SECTION 1: Receipt of Refunded Bond Ordinances. Receipt
of copies of the ordinances authorizing the issuance of the
Refunded Obligations and the Bond Ordinance are hereby acknowledged
by the Bank. Reference herein to or citation herein of any
provision of said documents shall be deemed an incorporation of
such provision as a part hereof in the same manner and with the
same effect as if it were fully set forth herein.
SECTION 2: Escrow Fund Creation /Fundinq. There is hereby
created by the City with the Bank a special segregated and
irrevocable trust fund designated "SPECIAL 1993 CITY OF EULESS,
TEXAS, REFUNDING BOND ESCROW FUND" (hereinafter called the "Escrow
Fund ") for the benefit of the holders of the Refunded Obligations,
and, immediately following the delivery of the Bonds, the City
agrees and covenants to cause to be deposited with the Bank the
following amounts:
$6,698,936.04 for the purchase of Federal Securities
identified in Exhibit B to be held for the
account of the Escrow Fund
$ -0- for deposit in the Escrow Fund as a
beginning cash balance; and
u�
009V67
The Bank hereby accepts the Escrow Fund and further agrees to
receive said moneys, apply the same as set forth herein, and to
hold the cash and Federal Securities deposited and credited to the
Escrow Fund for application and disbursement for the purposes and
in the manner provided in this Agreement.
SECTION 3: Escrow Fund Sufficiency Warranty. The City hereby
represents that the cash and Federal Securities, together with the
interest to be earned thereon, deposited to the credit of the
Escrow Fund will be sufficient to pay the principal of and premium
and interest on the Refunded Obligations as the same shall become
due and payable, and such Refunded Obligations, and the interest
thereon, are to mature or be redeemed and shall be paid at the
times and in the amounts set forth and identified in Exhibit A
attached hereto.
FURTHERMORE, the Bank acknowledges receipt of a copy of the
resolution providing for the redemption of (i) Series 1985 -A
Refunded Obligations on March 1, 1996 at the redemption price of
par plus accrued interest, (ii) Series 1986 Refunded Obligations on
March 1, 1997 at the redemption price of par plus accrued interest,
(iii) Series 1989 Refunded Obligations on March 1, 1999 at the
redemption price of par plus accrued interest and (iv) Series 1990
Refunded Obligations on March 1, 2000 at the redemption price of
par plus accrued interest; all in accordance with the provisions of
the respective notice requirements applicable to said Refunded
Obligations and the notice requirements contained in the ordinances
authorizing the Refunded Obligations.
The Bank agrees to cause a notice of redemption pertaining to
the Series 1985 -A, Series 1986 and Series 1989 Refunded Obligations
to be sent to the registered owners thereof appearing on the
registration books at least thirty (30) days prior to the
redemption date therefor.
SECTION 4: Pledge of Escrow. The Bank agrees that all cash
and Federal Securities, together with any income or interest earned
thereon, held in the Escrow Fund shall be and is hereby irrevocably
pledged to the payment of the principal of and interest on the
Refunded Obligations which will mature and become due on and after
the date of this Agreement, and such funds initially deposited and
to be received from maturing principal and interest on the Federal
Securities in the Escrow Fund shall be applied solely in accordance
with the provisions of this Agreement.
SECTION 5: Escrow Insufficiency - City Warranty to Cure. If,
for any reason, the funds on hand in the Escrow Fund shall be
insufficient to make the payments set forth in Exhibit A attached
hereto, as the same becomes due and payable, the City shall make
oosM
timely deposits to the Escrow Fund, from lawfully available funds,
of additional funds in the amounts required to make such payments.
Notice of any such insufficiency shall be immediately given by the
Bank to the City by the fastest means possible, but the Bank shall
in no manner be responsible for the City's failure to make such
deposits.
SECTION 6: Escrow Fund Securities /Seareoation. The Bank
shall hold said Federal Securities and moneys in the Escrow Fund at
all times as a special and separate trust fund for the benefit of
the holders of the Refunded Obligations, wholly segregated from
other moneys and securities on deposit with the Bank; shall never
commingle said Federal Securities and moneys with other moneys or
securities of the Bank; and shall hold and dispose of the assets
therein only as set forth herein. Nothing herein contained shall
be construed as requiring the Bank to keep the identical moneys, or
any part thereof, in said Escrow Fund, if it is impractical, but
moneys of an equal amount, except to the extent such are
represented by the Federal Securities, shall always be maintained
on deposit in the Escrow Fund by the Bank, as trustee; and a
special account evidencing such facts shall at all times be
maintained on the books of the Bank.
SECTION 7: Escrow Fund Collections /Payments. The Bank shall
from time to time collect and receive the principal of and interest
on the Federal Securities as they respectively mature and become
due and credit the same to the Escrow Fund. On or before each
principal and /or interest payment date or redemption date, as the
case may be, for the Refunded Obligations shown in Exhibit A
attached hereto, the Bank, without further direction from anyone,
including the City, shall cause to be withdrawn from the Escrow
Fund the amount required to pay the accrued interest on the
Refunded Obligations due and payable on said payment date and the
principal of the Refunded Obligations due and payable on said
payment date or redemption date, as the case may be, and the amount
withdrawn from the Escrow Fund shall be immediately transmitted and
deposited with the paying agent for the Refunded Obligations to be
paid with such amount. The paying agent for the Series 1985 -A,
Series 1986 and Series 1989 Refunded Obligations is the Bank and
the paying agent for the Series 1990 Refunded Obligations is
Ameritrust Texas National Association.
If any Refunded Obligation or interest coupon thereon shall
not be presented for payment when the principal thereof or interest
thereon shall have become due, and if cash shall at such times be
held by the Bank in trust for that purpose sufficient and available
to pay the principal of such Refunded Obligation and interest
thereon it shall be the duty of the Bank to hold said cash without
liability to the holder of such Refunded Obligation for interest
thereon after such maturity or redemption date, in trust for the
00Wr67 �+
benefit of the holder of such Refunded Obligation, who shall
thereafter be restricted exclusively to said cash for any claim of
whatever nature on his part on or with respect to said Refunded
Obligation, including for any claim for the payment thereof and
interest thereon. All cash required by the provisions hereof to be
set aside or held in trust for the payment of the Refunded
Obligations, including interest thereon, shall be applied to and
used solely for the payment of the Refunded Obligations and
interest thereon with respect to which such cash has been so set
aside in trust.
Subject to the provisions of the last sentence of Section 25
hereof, cash held by the Bank in trust for the payment and
discharge of any of the Refunded Obligations and interest thereon
which remains unclaimed for a period of four (4) years after the
stated maturity date or redemption date of such Refunded
Obligations shall be returned to the City. Notwithstanding the
above and foregoing, any remittance of funds from the Bank to the
City shall be subject to any applicable unclaimed property laws of
the State of Texas.
SECTION 8: Disposal of Refunded Obligations. All Refunded
Obligations cancelled on account of payment by the Bank shall be
disposed of or otherwise destroyed by the Bank, and an appropriate
certificate of destruction furnished the City.
SECTION 9: Escrow Fund Encumbrance. The escrow created
hereby shall be irrevocable and the holders of the Refunded
Obligations shall have an express lien on all moneys and Federal
Securities in the Escrow Fund until paid out, used and applied in
accordance with this Agreement.
Unless disbursed in payment of the Refunded Obligations, all
funds and the Federal Securities received by the Bank for the
account of the City hereunder shall be and remain the property of
the Escrow Fund and the City and the owners of the Refunded
Obligations shall be entitled to a preferred claim and shall have
a first lien upon such funds and Federal Securities enjoyed by a
trust beneficiary. The funds and Federal Securities received by
the Bank under this Agreement shall not be considered as a banking
deposit by the City and the Bank and the City shall have no right
or title with respect thereto, except as otherwise provided herein.
Such funds and Federal Securities shall not be subject to checks or
drafts drawn by the City.
SECTION 10: Absence of Bank Claim /Lien on Escrow Fund.
The Bank shall have no lien whatsoever upon any of the moneys or
Federal Securities in the Escrow Fund for payment of services
rendered hereunder, services rendered as paying agent /registrar for
ooMs7
the Refunded Obligations, or for any costs or expenses incurred
hereunder and reimbursable from the City.
SECTION 11: Substitution of Investments /Reinvestments. The
Bank shall be authorized to accept initially and temporarily cash
and /or substituted securities pending the delivery of the Federal
Securities identified in the Exhibit B attached hereto, or shall be
authorized to redeem the Federal Securities and reinvest the
proceeds thereof, together with other moneys held in the Escrow
Fund in noncallable direct obligations of the United States of
America provided such early redemption and reinvestment of proceeds
does not change the repayment schedule of the Refunded Obligations
appearing in Exhibit A and the Bank receives the following:
(1) an opinion by an independent certified public
accountant to the effect that (i) the initial and /or
temporary substitution of cash and /or securities for one
or more of the Federal Securities identified in
Exhibit B pending the receipt and delivery thereof to
the Escrow Agent or (ii) the redemption of one or more
of the Federal Securities and the reinvestment of such
funds in one or more substituted securities (which shall
be noncallable direct obligations of the United States
of America), together with the interest thereon and
other available moneys then held in the Escrow Fund,
will, in either case, be sufficient, without
reinvestment, to pay, as the same become due in
accordance with Exhibit A, the principal of, and
interest on, the Refunded Obligations which have not
previously been paid, and
(2) with respect to an early redemption of Federal
Securities and the reinvestment of the proceeds thereof,
an unqualified opinion of nationally recognized
municipal bond counsel to the effect that (a) such
investment will not cause interest on the Bonds or
Refunded Obligations to be included in the gross income
for federal income tax purposes, under the Code and
related regulations as in effect on the date of such
investment, or otherwise make the interest on the Bonds
or the Refunded Obligations subject to Federal income
taxation and (b) such reinvestment complies with the
Constitution and laws of the State of Texas and with
all relevant documents relating to the issuance of the
Refunded Obligations and the Bonds.
SECTION 12: Restriction on Escrow Fund Investments -
Reinvestment. Except as provided in Section 11 hereof, moneys in
the Escrow Fund will be invested only in the Federal Securities
listed in Exhibit B and neither the City nor the Bank shall
0092787
reinvest any moneys deposited in the Escrow Fund except as
specifically provided by this Agreement.
SECTION 14: Excess Funds. If at any time through redemption
or cancellation of the Refunded Obligations there exists or will
exist excesses of interest on or maturing principal of the Federal
Securities in excess of the amounts necessary hereunder for the
Refunded Obligations, the Bank may transfer such excess amounts to
or on the order of the City, provided that the City delivers to the
Bank the following:
(1) an opinion by an independent certified public
accountant that after the transfer of such excess, the
principal amount of securities in the Escrow Fund,
together with the interest thereon and other available
monies then held in the Escrow Fund, will be sufficient
to pay, as the same become due, in accordance with
Exhibit A, the principal of, and interest on, the
Refunded Obligations which have not previously been
paid, and
(2) an unqualified opinion of nationally
recognized municipal bond counsel to the effect that (a)
such transfer will not cause interest on the Bonds or
the Refunded Obligations to be included in gross income
for federal income tax purposes, under the Code and
related regulations as in effect on the date of such
transfer, or otherwise make the interest on the Bonds or
the Refunded Obligations subject to Federal income
taxation, and (b) such transfer complies with the
Constitution and laws of the State of Texas and with all
relevant documents relating to the issuance of the
Refunded Obligations or the Bonds.
SECTION 14: Collateral ization. The Bank shall continuously
secure the monies in the Escrow Fund not invested in Federal
Securities by a pledge of direct obligations of the United States
of America, in the par or face amount at least equal to the
principal amount of said uninvested monies to the extent such
money is not insured by the Federal Deposit Insurance Corporation.
SECTION 15: Absence of Bank's Liability for Investments.
The Bank shall not be liable or responsible for any loss resulting
from any investment made in the Federal Securities or substitute
securities as provided in Section 11 hereof.
SECTION 16: Bank's Compensation - Escrow Administration/
Settlement of Paving Agent's Charges. The City agrees to pay the
Bank for the performance of services hereunder and as
reimbursement for anticipated expenses to be incurred hereunder
OOM6T
the amount of $4,500.00 and, except for reimbursement of costs and
expenses incurred by the Bank pursuant to Sections 3, 11 and 19
hereof, the Bank hereby agrees said amount is full and complete
payment for the administration of this Agreement.
The City also agrees to deposit with the Bank on the
effective date of this Agreement, the sum of $19,450 which deposit
represents the total charges due for the Refunded Obligations and
the Bank acknowledges and agrees that $18,750 is and represents
the total amount of compensation due the Bank for services
rendered as paying agent for the Refunded Obligations, and the
City hereby represents and warrants that the balance of the
foregoing sum is the total amount due the other paying agents for
the Refunded Obligations. The Bank hereby agrees to pay, assume
and be fully responsible for any additional charges that it may
incur in the performance of its duties and responsibilities as
paying agent for the Refunded Obligations. Furthermore, the Bank
agrees to transmit to the other paying agent for the Refunded
Obligations the amount included in said deposit for paying agent
services to be rendered for the Refunded Obligations in accordance
with the City's instructions.
The City acknowledges and agrees that the above amount
deposited with the Escrow Agent to cover paying agents' charges
and expenses does not include amounts which shall become due and
payable for services rendered as registrar and transfer agent for
fully registered Refunded Obligations, and the City agrees to pay
directly to each "registrar" for the Refunded Obligations all
reasonable costs, expenses and charges incurred in connection with
the maintenance of the registration books and records and the
transfer of such fully registered obligations as and when such
costs, expenses and charges are incurred and against written
invoices, statements or bills submitted therefor.
SECTION 17: Escrow Agent's Duties / Responsibilities /
Liability. The Bank shall not be responsible for any recital
herein, except with respect to its organization and its powers and
authority. As to the existence or nonexistence of any fact
relating to the City or as to the sufficiency or validity of any
instrument, paper or proceedings relating to the City, the Bank
shall be entitled to rely upon a certificate signed on behalf of
the City by its City Manager or Mayor and /or City Secretary of the
City as sufficient evidence of the facts therein contained. The
Bank may accept a certificate of the City Secretary under the
City's seal, to the effect that a resolution or other instrument
in the form therein set forth has been adopted by the City Council
of the City, as conclusive evidence that such resolution or other
instrument has been duly adopted and is in full force and effect.
0092767
_g_
The duties and obligations of the Bank shall be determined
solely by the express provisions of this Agreement and the Bank
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, and
no implied covenants or obligations shall be read into this
Agreement against the Bank.
In the absence of bad faith on the part of the Bank, the Bank
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificate or opinion furnished to the Bank, conforming to the
requirements of this Agreement; but notwithstanding any provision
of this Agreement to the contrary, in the case of any such
certificate or opinion or any evidence which by any provision
hereof is specifically required to be furnished to the Bank, the
Bank shall be under a duty to examine the same to determine
whether it conforms to the requirements of this Agreement.
The Bank shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Officers of the Bank
unless it shall be proved that the Bank was negligent in
ascertaining or acting upon the pertinent facts.
The Bank shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in aggregate
principal amount of all said Refunded Obligations at the time
outstanding relating to the time, method and place of conducting
any proceeding for any remedy available to the Bank not in
conflict with the intent and purpose of this Agreement. For the
purposes of determining whether the holders of the required
principal amount of said Refunded Obligations have concurred in
any such direction, Refunded Obligations owned by any obligor upon
the Refunded Obligations, or by any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such obligor, shall be disregarded, except that for
the purposes of determining whether the Bank shall be protected in
relying on any such direction only Refunded Obligations which the
Bank knows are so owned shall be so disregarded.
The term "Responsible Officers" of the Bank, as used in this
Agreement, shall mean and include the Chairman of the Board of
Directors, the President, any Vice President and any Second Vice
President, the Secretary and any Assistant Secretary, the
Treasurer and any Assistant Treasurer, and every other officer and
assistant officer of the Bank customarily performing functions
similar to those performed by the persons who at the time shall be
officers, respectively, or to whom any corporate trust matter is
referred, because of his knowledge of and familiarity with a
particular subject; and the term "Responsible Officer" of the
00'92767
y 10-
Bank, as used in this Agreement, shall mean and include any of
said officers or persons.
SECTION 18: Limitation Re: Bank's Duties /Responsibilities /
Liabilities to Third Parties. The Bank shall not be responsible
or liable to any person in any manner whatever for the
sufficiency, correctness, genuineness, effectiveness, or validity
of this Agreement with respect to the City, or for the identity or
authority of any person making or executing this Agreement for and
on behalf of the City. The Bank is authorized by the City to rely
upon the representations of the City with respect to this
Agreement and the deposits made pursuant hereto and as to the
City's right and power to execute and deliver this Agreement, and
the Bank shall not be liable in any manner as a result of such
reliance. The duty of the Bank hereunder shall only be to the
City and the holders of the Refunded Obligations. Neither the
City nor the Bank shall assign or attempt to assign or transfer
any interest hereunder or any portion of any such interest. Any
such assignment or attempted assignment shall be in direct
conflict with this Agreement and be without effect.
SECTION 19: Interpleader. In the event conflicting demands
or notices are made upon the Bank growing out of or relating to
this Agreement or the Bank in good faith is in doubt as to what
action should be taken hereunder, the Bank shall have the right at
its election to:
(a) Withhold and stop all further proceedings in,
and performance of, this Agreement with respect to the
issue in question and of all instructions received
hereunder in regard to such issue; and
(b) File a suit in interpleader and obtain an
order from a court of appropriate jurisdiction requiring
all persons involved to interplead and litigate in such
court their several claims and rights among themselves.
In the event the Bank becomes involved in litigation in
connection with this Section, the City, to the extent permitted by
law, agrees to indemnify and save the Bank harmless from all loss,
cost, damages, expenses and attorney fees suffered or incurred by
the Bank as a result thereof. The obligations of the Bank under
this Agreement shall be performable at the principal corporate
office of the Bank in the City of Dallas, Texas.
The Bank may advise with legal counsel in the event of any
dispute or question regarding the construction of any of the
provisions hereof or its duties hereunder, and in the absence of
negligence or bad faith on the part of the Bank, no liability
shall be incurred by the Bank for any action taken pursuant to
o 67 ; il
11-
this Section and the Bank shall be fully protected in acting in
accordance with the opinion and instructions of legal counsel that
is knowledgeable and has expertise in the field of law addressed
in any such legal opinion or with respect to the instructions
given.
SECTION 20: Accounting - Annual Report. Promptly after
September 30th of each year, commencing with the year 1993, while
the Escrow Fund is maintained under this Agreement, the Bank shall
forward to the City, to the attention of the City Manager, or
other designated official of the City, a statement in detail of
the Federal Securities and monies held, and the current income and
maturities thereof, and the withdrawals of money from the Escrow
Fund for the preceding 12 month period ending September 30th of
each year.
SECTION 21: Notices. Any notice, authorization, request or
demand required or permitted to be given hereunder shall be in
writing and shall be deemed to have been duly given when mailed by
registered or certified mail, postage prepaid addressed as
follows:
CITY OF EULESS, TEXAS
201 North Ector Drive
Euless, Texas 76039
Attention: Director of Fiscal and Human Resources
BANK ONE, TEXAS NA
P. O. Box 2604
Fort Worth, Texas 76102
Attention: Corporate Trust Department
The United States Post Office registered or certified mail receipt
showing delivery of the aforesaid shall be conclusive evidence of
the date and fact of deliver-
Any party hereto ma;, the address to which notices are
to be delivered by giving to the other parties not less than ten
(10) days prior notice thereof.
SECTION 22: Performance Date. Whenever under the terms of
this Agreement the performance date of any provision hereof,
including the date of maturity of interest on or principal of the
Refunded Obligations, shall be a Sunday or a legal holiday or a
day on which the Bank is authorized by law to close, then the
performance thereof, including the payment of principal of and
0092789
-12-
interest on the Refunded Obligations, need not be made on such
date but may be performed or paid, as the case may be, on the next
succeeding business day of the Bank with the same force and effect
as if made on the date of performance or payment and with respect
to a payment, no interest shall accrue for the period after such
date.
SECTION 23: Warranty of Parties Re: Power to Execute and
Deliver Escrow Agreement. The City covenants that it will
faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this
Agreement, in any and every said Refunded Obligation as executed,
authenticated and delivered and in all proceedings pertaining
thereto as said Refunded Obligations shall have been modified as
provided in this Agreement. The City covenants that it is duly
authorized under the Constitution and laws of the State of Texas
to execute and deliver this Agreement, that all actions on its
part for the payment of said Refunded Obligations as provided
herein and the execution and delivery of this Agreement have been
duly and effectively taken and that said Refunded Obligations and
coupons in the hands of the holders and owners thereof are and
will be valid and enforceable obligations of the City according to
the import thereof as provided in this Agreement.
SECTION 24: Severability. If any one or more of the
covenants or agreements provided in this Agreement on the part of
the parties to be performed should be determined by a court of
competent jurisdiction to be contrary to law, such covenant or
agreement shall be deemed and construed to be severable from the
remaining covenants and agreements herein contained and shall in
no way affect the validity of the remaining provisions of this
Agreement. In the event any covenant or agreement contained in
this Agreement is declared to be severable from the other
provisions of this Agreement, written notice of such event shall
immediately be given to each national rating service (Moody's
Investors Service, Standard & Poor's Corporation or Fitch
Investors Service) which has rated the Refunded Obligations on the
basis of this Agreement.
SECTION 25: Termination. This Agreement shall terminate
when the Refunded Obligations, including interest due thereon,
have been paid and discharged in accordance with the provisions of
this Agreement. If any Refunded Obligations are not presented for
payment when due and payable, the nonpayment thereof shall not
prevent the termination of this Agreement. Funds for the payment
of any nonpresented Refunded Obligations and accrued interest
thereon shall upon termination of this Agreement be held by the
Bank for such purpose in accordance with Section 7 hereof. Any
moneys or Federal Securities held in the Escrow Fund at
termination and not needed for the payment of the principal of or
v -13-
interest on any of the Refunded Obligations shall be paid or
transferred to the City.
SECTION 26: Time of the Essence. Time shall be of the
essence in the performance of obligations from time to time
imposed upon the Bank by this Agreement.
SECTION 27: Successors /Assigns. (a) Should the Bank not
be able to legally serve or perform the duties and obligations
under this Agreement, or should the Bank be declared to be
insolvent or closed for any reason by federal or state regulatory
authorities or a court of competent jurisdiction, the City, upon
being notified or discovering the Bank's inability or
disqualification to serve hereunder, shall forthwith appoint a
successor to replace the Bank, and upon being notified of such
appointment, the Bank shall (i) transfer all funds and securities
held hereunder, together with all books, records and accounts
relating to the Escrow Fund and the Refunded Obligations, to such
successor and (ii) assign all rights, duties and obligations under
this Agreement to such successor. If the City should fail to
appoint such a successor within ninety (90) days from the date the
City discovers, or is notified of, the event or circumstance
causing the Bank's inability or disqualification to serve
hereunder, the Bank, or a bondholder of the Refunded Obligations,
may apply to a court of competent jurisdiction to appoint a
successor or assigns of the Bank and such court, upon determining
the Bank is unable to continue to serve, shall appoint a successor
to serve under this Agreement and the amount of compensation, if
any, to be paid to such successor for the remainder of the term of
this Agreement for services to be rendered both for administering
the Escrow Fund and for paying agent duties and responsibilities
for the Refunded Obligations.
(b) Furthermore, the Bank may resign and be discharged from
performing its duties and responsibilities under this Agreement
upon notifying the City in writing of its intention to resign and
requesting the City to appoint a successor. No such resignation
shall take effect until a successor has been appointed by the City
and such successor has accepted such appointment and agreed to
perform all duties and obligations hereunder for a total
compensation equal to the unearned proportional amount paid the
Bank under Section 16 hereof for the administration of this
Agreement and the unearned proportional amount of the paying
agents fees for the Refunded Obligations due the Bank.
Any successor to the Bank shall be a bank, trust company or
other financial institution that is duly qualified under
applicable law (the Act or other appropriate statute) to serve as
escrow agent hereunder and authorized and empowered to perform the
duties and obligations contemplated by this Agreement and
6092767 �A
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organized and doing business under the laws of the United States
or the State of Texas, having its principal office and place of
business in the State of Texas, having a combined capital and
surplus of at least $5,000,000 and be subject to the supervision
or examination by Federal or State authority.
Any successor or assigns to the Bank shall execute,
acknowledge and deliver to the City and the Bank, or its successor
or assigns, an instrument accepting such appointment hereunder,
and the Bank shall execute and deliver an instrument transferring
to such successor, subject to the terms of this Agreement, all the
rights, powers and trusts created and established and to be
performed under this Agreement. Upon the request of any such
successor Bank, the City shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor Bank all such rights, powers and duties. The term
"Bank" as used herein shall be the Bank and its legal assigns and
successor hereunder.
SECTION 28: Escrow Agreement - Amendment /Modification. This
Agreement shall be binding upon the City and the Bank and their
respective successors and legal representatives and shall inure
solely to the benefit of the holders of the Refunded Obligations,
the City, the Bank and their respective successors and legal
representatives. Furthermore, no alteration, amendment or
modification of any provision of this Agreement shall (1) alter
the firm financial arrangements made for the payment of the
Refunded Obligations or (2) be effective unless (i) prior written
consent of such alteration, amendment or modification shall have
been obtained from the holders of all Refunded Obligations
outstanding at the time of such alteration, amendment or
modification and (ii) such alteration, amendment or modification
is in writing and signed by the parties hereto; provided, however,
the City and the Bank may, without the consent of the holders of
the Refunded Obligations, amend or modify the terms and provisions
of this Agreement to cure in a manner not adverse to the holders
of the Refunded Obligations any ambiguity, formal defect or
omission in this Agreement. If the parties hereto agree to any
amendment or modification to this Agreement, prior written notice
of such amendment or proposed modification, together with the
legal documents amending or modifying this Agreement, shall be
furnished to each national rating service (Standard & Poor's
Corporation, Moody's Investors Service or Fitch Investors Service)
which has rated the Refunded Obligations on the basis of this
Agreement, prior to such amendment or modification being executed.
SECTION 29: Effect of Headings. The Section headings herein
are for convenience only and shall not affect the construction
hereof.
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SECTION 30: Executed Counterparts. This Agreement may be
executed in several counterparts, all or any of which shall be
regarded for all purposes as one original and shall constitute and
be but one and the same instrument. This Agreement shall be
governed by the laws of the State of Texas and shall be effective
as of the date of the delivery of the Bonds.
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be executed by their duly authorized officers and
their corporate seals to be hereunto affixed and attested as of
the date first above written.
ATTEST:
ty Secretary
(City Seal)
ATTEST:
Authorized Signer
(Bank Seal)
CITY OF EULESS, TEXAS
Mayor
BANK ONE, TEXAS, NA,
Fort Worth, Texas,
as Escrow Agent
Title:
0082989
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