HomeMy WebLinkAbout1651 06-22-2004ORDINANCE NO. 1651
AN ORDINANCE authorizing the issuance of "CITY OF EULESS, TEXAS,
WATERWORKS AND SEWER SYSTEM REVENUE BONDS,
SERIES 2004 "; pledging the net revenues of the City's Waterworks and
Sewer System to the payment of the principal of and interest on said
Bonds; enacting provisions incident and related to the issuance, payment,
security and delivery of said bonds, including the approval and execution
of a Paying Agent/Registrar Agreement and a Purchase Contract 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 hereby finds and determines
that revenue bonds in the principal amount of $2,145,000 to construct, improve, renovate,
enlarge or equip property, buildings, structures, facilities or related infrastructure for the City's
Waterworks and Sewer System; and
WHEREAS, the City Council further finds and determines that such revenue bonds can
and should be issued on a parity with the outstanding and unpaid revenue bonds of the City
(hereinafter called and defined as "Previously Issued Bonds ") payable from and secured by a
first lien on and pledge of the Net Revenues of the City's combined Waterworks and Sewer
System (the "System ") in that (i) the City is not now in default as to any covenant, condition or
obligation contained in the ordinances authorizing the issuance of the outstanding Previously
Issued Bonds, (ii) the laws of the State of Texas now in force provide for the issuance of the
bonds herein authorized to be issued, (iii) each of the Funds created and reaffirmed by the
ordinances authorizing the Previously Issued Bonds contains the amount of money now
required to be on deposit therein; (iv) the "Net Revenues" of the System for the twelve -month
period preceding the month of the adoption of this Ordinance, as shown by a report of a
Certified Public Accountant or licensed public accountant, are equal to at least one and one -
fourth (1 %) times the average annual principal and interest requirements of all bonds secured
by a first lien on and pledge of the Net Revenues of the System, and which will be outstanding
upon the issuance of the bonds herein authorized; (v) this Ordinance provides that the amount
to be accumulated and maintained in the Bond Reserve Fund shall be increased to an amount
equal to not less than the average annual principal and interest requirements of all bonds
payable from and secured by a first lien on and pledge of the Net Revenues of the System (after
giving effect to the issuance of the bonds herein authorized) and any additional amount to be
maintained in said Fund shall be accumulated within not more than five (5) years and one (1)
months from the date of the passage of this Ordinance; and (vi) the bonds herein authorized
shall mature on July 15 in each year; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF EULESS, TEXAS:
SECTION 1: Authorization - Designation - Principal Amount - Purpose. Revenue bonds
of the City shall be and are hereby authorized to be issued in the aggregate principal amount of
$2,145,000 to be designated and bear the title "CITY OF EULESS, TEXAS, WATERWORKS
AND SEWER SYSTEM REVENUE BONDS, SERIES 2004" (hereinafter referred to as the
"Bonds "), to construct, improve, renovate, enlarge or equip property, buildings, structures,
facilities or related infrastructure for the City's Waterworks and Sewer System, in conformity with
the Constitution and laws of the State of Texas, including V.T.C.A., Government Code, Section
1502.051(c).
45464529.1
SECTION 2: Fully Registered Obligations - Authorized Denominations - Stated
Maturities - Date. The Bonds shall be issued as fully registered obligations, without coupons,
shall be dated June 15, 2004 (the "Bond 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 thereof (within a Stated Maturity), shall be numbered consecutively from One (1)
upward and shall become due and payable on July 15 in each of the years and in principal
amounts (the "Stated Maturities ") and bear interest at per annum rates in accordance with the
following schedule:
Year of
Principal
Interest
Stated Maturity
Amount
Rate (s)
2005
$ 65,000
3.50%
2006
75,000
3.50%
2007
75,000
3.50%
2008
80,000
3.50%
2009
85,000
3.50%
2010
85,000
4.00%
2011
90,000
4.00%
2012
90,000
4.00%
2013
95,000
4.10%
2014
100,000
4.25%
2015
105,000
4.40%
2016
110,000
5.25%
2017
115,000
4.60%
2018
120,000
4.65%
2019
125,000
5.00%
2020
130,000
5.00%
2021
140,000
5.00%
2022
145,000
5.00%
2023
155,000
5.00%
2024
160,000
5.00%
The Bonds shall bear interest on the unpaid principal amounts from the Bond Date at the
rate(s) per annum shown in the above schedule (calculated on the basis of a 360 -day year of
twelve 30 -day months). Interest on the Bonds shall be payable on January 15 and July 15 in
each year, commencing January 15, 2005.
SECTION 3: Terms of Payment - Paving 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 Wachovia Bank, National Association, Houston, Texas
to serve as Paying Agent/Registrar for the Bonds is hereby approved and confirmed. Books
and records relating to the registration, payment, transfer and exchange of the Bonds (the
"Security Register ") shall at all times be kept and maintained on behalf of the City by the Paying
Agent/Registrar, as provided herein and in accordance with the terms and provisions of a
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"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 are authorized to execute and deliver such Agreement
in connection with the delivery of the 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 upon the earlier redemption thereof, only upon presentation and surrender of the Bonds to
the Paying Agent/Registrar at its designated offices in Charlotte, North Carolina (the
"Designated Payment/Transfer Office "). Interest on the Bonds shall be paid to the Holders
whose names appear 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 non - payment of interest on one or more maturities on a scheduled
payment date, and for thirty (30) days thereafter, a new record date for such interest payment
for such maturity or maturities (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 of such maturity or maturities 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 July 15, 2014, shall be 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 July 15, 2013 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
45464529.1 3
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 and has been called for redemption
and notice of redemption thereof has been duly given or waived as herein 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 Bonds (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 registered owner of the Bonds issued under and pursuant to the provisions of
this Ordinance. Any Bond may, in accordance with its terms and the terms hereof, be
transferred or exchanged for Bonds of other authorized denominations upon the Security
Register by the Holder, in person or by his duly authorized agent, upon surrender of such Bond
to the Paying Agent/Registrar 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 for transfer of any Bond (other than the Initial Bonds authorized in
Section 8 hereof) at the Designated Payment/Transfer Office of the Paying Agent/Registrar, the
Paying Agent/Registrar shall register and deliver, in the name of the designated transferee or
transferees, one or more new Bonds, executed on behalf of, and furnished by, the City of
authorized denominations and having the same Stated Maturity and of a like aggregate principal
amount as the Bond or Bonds surrendered for transfer.
45464529.1 4
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,
executed on behalf of, and furnished by, the City, to the Holder requesting the exchange.
All Bonds issued upon any transfer or exchange of Bonds shall be delivered at the
Designated Payment/Transfer Office of the Paying Agent/Registrar, or sent by United States
Mail, first class postage prepaid, to the Holder and, upon the delivery thereof, the same shall be
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.
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 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 Section 31 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 transfer or exchange
any Bond called for redemption, in whole or in part, within 45 days of the date fixed for
redemption of such Bond; provided, however, such limitation of transfer 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 operational arrangements referenced in the
Blanket Issuer Letter of Representation, by and between the City and DTC (the "Depository
Agreement ").
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.
45464529.1 5
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 Bond 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 V.T.C.A., Government
Code, Chapter 1201.
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 upon any
Bond duly signed 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 referenced in Section 1
hereof with principal installments to become due and payable as provided in Section 2 hereof
and numbered T -1, or (ii) as multiple 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 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 Certificate of Registration, 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
45464529.1 6
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 in the event the Bonds, or any
maturities thereof, are purchased with insurance 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 thereof. 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,
typewritten, photocopied or otherwise reproduced in any other similar manner, all as determined
by the officers executing such Bonds as evidenced by their execution thereof.
B. Form of Definitive Bond.
REGISTERED
NO.
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF EULESS, TEXAS
WATERWORKS AND SEWER SYSTEM REVENUE BOND
SERIES 2004
Bond Date:
June 15, 2004
Registered Owner:
REGISTERED
Interest Rate: Stated Maturity: 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, hereby promises to pay
to the order of the Registered Owner named above, or the registered assigns thereof, solely
from the revenues hereinafter identified, on the Stated Maturity date specified above the
Principal Amount stated above (or so much thereof as shall not have been paid upon prior
redemption) and to pay interest (computed on the basis of a 360 -day year of twelve 30 -day
months) on the unpaid Principal Amount hereof from the Bond Date at the per annum rate of
interest specified above; such interest being payable on January 15 and July 15 of each year,
commencing January 15, 2005. Principal of this Bond is payable at its Stated Maturity or
redemption to the registered owner hereof, upon presentation and surrender, at the Designated
Payment/Transfer Office of the Paying Agent/Registrar executing the registration certificate
appearing hereon, or its successor; provided, however, while this Bond is registered to Cede &
Co., the payment of principal upon a partial redemption of the principal amount hereof may be
accomplished without presentation and surrender of this Bond. 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
45464529.1 7
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.
This Bond is one of the series specified in its title issued in the aggregate principal
amount of $2,145,000 (herein referred to as the "Bonds ") to construct, improve, renovate,
enlarge or equip property, buildings, structures, facilities or related infrastructure for the City's
Waterworks and Sewer System, , under and in strict conformity with the Constitution and laws of
the State of Texas, including V.T.C.A. Government Code, Chapters 1502.56 and 1502.58, 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 July 15, 2014, 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
July 15, 2013 or on any date thereafter at the redemption price of par plus accrued interest
thereon to the redemption date.
At least thirty days prior to the date fixed for any redemption of Bonds, the City shall
cause a written notice of such redemption to be sent by United States Mail, first class postage
prepaid, to the registered owners of each Bond to be redeemed at the address shown on the
Security Register and subject to the terms and provisions relating thereto contained in the
Ordinance. If a Bond (or any portion of its principal sum) shall have been duly called for
redemption and notice of such redemption duly given, then upon such redemption date such
Bond (or the portion of its principal sum 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 a portion of the principal amount of a Bond is to be redeemed and the
registered owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender of
such Bond to the Designated Payment/Transfer Office of the Paying Agent/Registrar, and 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 thereof will be issued to
the registered owner, without charge. If a Bond is selected for redemption, in whole or in part,
the City and the Paying Agent/Registrar shall not be required to transfer such 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 of a Bond redeemed in part.
The Bonds are special obligations of the City and, together with the outstanding
"Previously Issued Bonds" (identified and defined in the Ordinance), are payable solely from and
equally and ratably secured by a first lien on and pledge of the Net Revenues (as defined in the
Ordinance) of the City's combined Waterworks and Sewer System (the "System "). The Bonds
45464529.1 8
do not constitute a legal or equitable pledge, charge, lien or encumbrance upon any property of
the City or the System, except with respect to the Net Revenues. The holder hereof shall never
have the right to demand payment of this obligation out of any funds raised or to be raised by
taxation.
Subject to satisfying the terms and conditions prescribed therefor, the City has reserved
the right to issue additional revenue obligations payable from and equally and ratably secured
by a parity lien on and pledge of the Net Revenues of the System, in the same manner and to
the same extent as the Previously Issued Bonds and the Bonds.
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
Holder by the acceptance hereof hereby assents, for definitions of terms; the description of and
the nature and extent of the security for the Bonds; the properties constituting the System; the
Net Revenues pledged to the payment of the principal of and interest on the Bonds; the nature
and extent and manner of enforcement of the lien and pledge securing the payment of the
Bonds; the terms and conditions for the issuance of additional revenue obligations; 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 the liens, pledges, charges and covenants made therein may be
discharged at or prior to the maturity or redemption of this Bond, and this Bond deemed to be no
longer Outstanding thereunder; and for the other terms and provisions contained therein.
Capitalized terms used herein have the same 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, may treat the
registered owner hereof 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 or its redemption, in
whole or in part, 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 non - payment 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 last business day next preceding the date of
mailing of such notice.
45464529.1 9
It is hereby certified, recited, represented and covenanted that the City is a duly
organized and legally existing municipal corporation under and byyirtue 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 a pledge of the Net Revenues of the
System as aforestated. In case any provision in this Bond or any application thereof shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining
provisions and applications 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 Bond Date.
CITY OF EULESS, TEXAS
Mayor
COUNTERSIGNED:
City Secretary
(Seal)
45464529.1 10
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
only.
D. Form of Certificate of Paying Agent/Registrar to Appear on Definitive Bonds
REGISTRATION CERTIFICATE OF PAYING AGENT /REGISTRAR
This Bond has been duly issued and registered in the name of the Registered Owner
shown above 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 designated offices of the Paying Agent/Registrar in Charlotte, North Carolina, is the
"Designated Payment/Transfer Office" for this Bond.
Registration date:
WACHOVIA BANK, NATIONAL ASSOCIATION,
Houston, Texas,
as Paying Agent/Registrar
21
Authorized Signature
45464529.1 11
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:
Signature guaranteed:
NOTICE: The signature on this
assignment must correspond with the
name of the registered owner as it
appears on the face of the within Bond in
every particular.
F. The Initial Bond(s) shall be in the form set forth in paragraph B of this Section,
except that the form of a single fully registered Initial Bond shall be modified as follows:
(i) immediately under the name of the bond the headings "Interest Rate ", "Stated
Maturity" and "CUSIP NO." shall be omitted;
Paragraph one shall read as follows:
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, hereby promises to pay
to the order of the Registered Owner named above, or the registered assigns thereof, solely
from the revenues hereinafter identified, the Principal Amount hereinabove stated on July 15 in
each of the years and in principal installments in accordance with the following schedule:
PRINCIPAL INTEREST
YEAR INSTALLMENTS RATE
(Information to be inserted from schedule in Section 2 hereof).
(or so much thereof as shall not have been prepaid prior to maturity) and to pay interest,
computed on the basis of a 360 -day year of twelve 30 -day months, on the unpaid principal
amounts hereof from the Bond Date at the per annum rates of interest specified above; such
interest being payable on January 15 and July 15 in each year, commencing January 15, 2005.
Principal installments of this Bond are payable in the year of maturity or on a prepayment date
to the registered owner hereof by Wachovia Bank, National Association, Houston, Texas (the
"Paying Agent/Registrar"), upon presentation and surrender, at its designated offices in
Charlotte, North Carolina (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
45464529.1 12
by the Paying Agent/Registrar by check sent United States Mail, first class postage prepaid, to
the address of 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: Definitions. For all purposes of this Ordinance and in particular for clarity
with respect to the issuance of the Bonds herein authorized and the pledge and appropriation of
revenues to the payment of the Bonds, the following definitions are provided:
(a) The term "Additional Bonds" shall mean the additional parity revenue bonds the
City reserves the right to issue in accordance with the terms and conditions prescribed in
Section 23 hereof.
(b) The term "Bonds" shall mean the "City of Euless, Texas, Waterworks and Sewer
System Revenue Bonds, Series 2004" authorized by this Ordinance.
(c) The term "Bonds Similarly Secured" shall mean the Previously Issued Bonds, the
Bonds and Additional Bonds.
(d) The term "Fiscal Year" shall mean the twelve -month operating period for the
System ending September 30 of each year.
(e) The term "Net Revenues" shall mean and include the gross revenues derived
from the operation of the System, less reasonable expenses of operation and maintenance,
including all salaries, labor, materials, repairs and extensions necessary to render efficient
service, provided, however, that only such repairs and extensions as in the judgment of the City
Council, reasonably and fairly exercised, are necessary to keep the System in operation and
render adequate service to the areas served thereby and the inhabitants thereof, or such as
might be necessary to meet some physical accident or condition which would otherwise impair
the security of any bonds payable from and secured by a lien on the Net Revenues of the
System shall be deducted in determining "Net Revenues."
(f) The term "Previously Issued Bonds" shall mean the outstanding and unpaid
revenue bonds, payable from and secured by a first lien on and pledge of the Net Revenues of
the System, of the following issues or series, identified as follows:
(1) City of Euless, Texas, Waterworks and Sewer System Revenue
Refunding Bonds, Series 1967, dated January 15, 1967, and issued in the
original principal amount of $2,200,000;
(2) City of Euless, Texas, Waterworks and Sewer System Revenue
Bonds, Series 2000, dated March 15, 2000, and issued in the original principal
amount of $3,260,000.
(g) The term "Government Obligations" shall mean (i) direct noncallable obligations
of the United States of America, including obligations the principal of and interest on which are
unconditionally guaranteed by the United States of America, (ii) noncallable obligations of an
agency or instrumentality of the United States, including obligations unconditionally guaranteed
45464529.1 13
or insured by an agency or instrumentality of the United States of America and on the date of
their acquisition or purchase by the City are rated as to investment quality by a nationally
recognized investment rating firm not less than AAA or its equivalent and (iii) noncallable
obligations of a state or an agency or a county, municipality, or other political subdivision of a
state that have been refunded and on the date of their acquisition or purchase by the City, are
rated as to investment quality by a nationally recognized investment rating firm not less than
AAA or its equivalent.
(h) 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 canceled by the Paying Agent/Registrar or delivered
to the Paying Agent/Registrar for cancellation;
(2) those Bonds deemed to be paid by the City in accordance with the
provisions of Section 29 hereof; and
(3) those Bonds that have been mutilated, destroyed, lost, or stolen
and replacement Bonds have been registered and delivered in lieu thereof as
provided in Section 31 hereof.
(i) The term "System" shall mean the City's combined Waterworks and Sanitary
Sewer System, including all present and future additions, extensions, replacements and
improvements thereto, whether situated within or without the corporate limits of the City.
SECTION 11: Pledge. The City hereby covenants and agrees that all of the Net
Revenues derived from the operation of the System, with the exception of those in excess of the
amounts required to establish and maintain the special Funds created for the payment and
security of the Bonds Similarly Secured, are hereby irrevocably pledged for the payment of the
Previously Issued Bonds, the Bonds, and the Additional Bonds, if issued, and the interest
thereon, and it is hereby ordained that the Previously Issued Bonds, the Bonds and the
Additional Bonds, if issued, and the interest thereon, shall constitute a first lien on the Net
Revenues of the System in accordance with the terms and provisions hereof and be valid and
binding and fully perfected from and after the date of adoption of this Ordinance without physical
delivery or transfer or transfer of control of the Net Revenues, the filing of this Ordinance or any
other act; all as provided in Chapter 1208 of the Texas Government Code.
Chapter 1208, Texas Government Code, applies to the issuance of the Bonds and the
pledge of the Net Revenues of the System granted by the City under this Section 11, and such
pledge is therefore valid, effective and perfected. If Texas law is amended at any time while the
Bonds are Outstanding such that the pledge of the Net Revenues of the System granted by the
City under this Section 11 is to be subject to the filing requirements of Chapter 9, Texas
Business & Commerce Code, then in order to preserve to the registered owners of the Bonds
the perfection of the security interest in said pledge, the City agrees to take such measures as it
determines are reasonable and necessary under Texas law to comply with the applicable
provisions of Chapter 9, Texas Business & Commerce Code and enable a filing to perfect the
security interest in said pledge to occur.
45464529.1 14
SECTION 12: Rates and Charges. The City hereby covenants and agrees with the
Holders of the Bonds that rates and charges for water and sewer services afforded by the
System will be established and maintained to provide revenues sufficient at all times to pay:
(a) all operating, maintenance, depreciation, replacement, betterment
and other costs deductible in determining Net Revenues as herein defined;
(b) the interest on and principal of the Bonds Similarly Secured and
the amounts required to be deposited into the special Funds created and
established for the payment and security of the Bonds Similarly Secured; and
(c) any other legally incurred indebtedness payable from the
revenues of the System and /or secured by a lien on the System or the revenues
thereof.
SECTION 13: Segregation of Revenues /Fund Designations. All revenues and income
derived from the operation and ownership of the System shall be kept separate from other funds
of the City and deposited from day to day, as collected in the "System Fund" (created and
established in connection with the issuance of the Previously Issued Bonds), which Fund is
hereby reaffirmed and shall continue to be kept and maintained at an official depository bank of
the City while the Bonds remain Outstanding. Furthermore, the special funds or accounts
created and established in connection with the issuance of the Previously Issued Bonds are
hereby reaffirmed for the benefit of the Bonds, to wit:
(i) Bond Fund, which Fund is kept and maintained at First National
Bank Mid - Cities, and moneys deposited in said Fund shall be used only for the
purpose of paying the principal of and interest on the Bonds Similarly Secured.
(ii) Emergency Fund, which Fund is kept and maintained at the City's
official depository bank, and moneys deposited in said Fund shall be used, upon
proper order of the City Council, to pay any special or extraordinary repairs or
replacements to the System necessitated by the occurrence of an emergency
and for payment of which no other funds are available and additionally for the
payment of the principal and/or. interest requirements of the Bonds Similarly
Secured to prevent a default in the payment thereof when moneys in the Bond
Fund and /or Bond Reserve Fund are deficient.
(iii) Bond Reserve Fund, which Fund is kept and maintained at
Deutsche Bank, and moneys deposited in said Fund shall be used to pay the
principal of and interest on the Bonds Similarly Secured falling due at any time
when there is insufficient money available in the Bond Fund for such purpose.
SECTION 14: System Fund. The City hereby reaffirms its covenant to the Holders of
the Previously Issued Bonds and agrees with the Holders of the Bonds that the moneys
deposited in the System Fund shall be used first for the payment of the reasonable and proper
expenses of operating and maintaining the System, as identified in Section 10(e) hereof. All
moneys deposited in the System Fund in excess of the amounts required to pay operating and
maintenance expenses of the System, as hereinabove provided, shall be applied and
appropriated, to the extent required and in the order of priority prescribed, as follows:
45464529.1 15
(i) To the payment of the amounts required to be deposited in the
Bond Fund for the payment of principal of and interest on the Bonds Similarly
Secured as the same become due and payable;
(ii) To the payment of the amounts, if any, required to be deposited in
the Emergency Fund to accumulate and /or restore the total amount required to
be maintained therein; and
(iii) To the payment of the amounts required to deposited in the Bond
Reserve Fund to accumulate and maintain the reserve amount as security for the
payment of the principal of and interest on the Bonds Similarly Secured.
SECTION 15: Bond Fund. In addition to the required deposits to the Bond Fund for the
payment of principal of and interest on the Previously Issued Bonds, the City hereby agrees and
covenants to deposit to the Bond Fund an amount equal to one hundred percentum (100 %) of
the amount required to fully pay the interest on and principal of the Bonds falling due on or
before each maturity and interest payment date, such payments to be made in substantially
equal monthly installments on or before the 10th day of each month beginning on or before the
10th day of the month next following the month the Bonds are delivered to the initial purchaser.
The required monthly deposits to the Bond Fund for the payment of principal of and
interest on the Bonds shall continue to be made as hereinabove provided until such time as (i)
the total amount on deposit in the Bond Fund and Bond Reserve Fund is equal to the amount
required to fully pay and discharge all outstanding Bonds Similarly Secured (principal and
interest) or (ii) the Bonds are no longer outstanding, i.e., fully paid as to principal and interest or
all the Bonds have been refunded.
Accrued interest received from the purchaser of the Bonds shall be deposited in the
Bond Fund, and shall be taken into consideration and reduce the amount of the monthly
deposits hereinabove required which would otherwise be required to be deposited in the Bond
Fund from the Net Revenues of the System. Furthermore, a transfer of funds from the Bond
Reserve Fund and Emergency Fund, as hereinafter prescribed, shall be taken into
consideration and reduce the amount of the monthly deposits otherwise required to be
deposited in the Bond Fund from the Net Revenues.
SECTION 16: Emergency Fund. In accordance with the provisions of the ordinances
authorizing the issuance of the Previously Issued Bonds, the amount required to be
accumulated and maintained in the Emergency Fund is $100,000.00, which amount is currently
on deposit therein, and no additional amount shall be required to be deposited in said Fund by
reason of the issuance of the Bonds. As long as the sum of $100,000.00 is on deposit in said
Fund, no further amounts shall be required to be deposited therein; provided, however, should
the amount on deposit in said Fund ever be less than $100,000.00, the City covenants and
agrees to immediately resume, and cause to be made to said Fund, monthly deposits in the
amount of $1,000 on or before the 10th day of each month until the total amount required to be
maintained in said Fund has been fully restored. Monthly deposits to said Fund shall be made
with available Net Revenues of the System in the System Fund and be subject only to the
required deposits to the Bond Fund. Furthermore, when the amount on deposit in the
Emergency Fund equals or exceeds the total amount required to be maintained therein, moneys
realized from the investment of funds in the Emergency Fund in excess of the balance required
to be maintained therein may be transferred to the Bond Fund.
45464529.1 16
SECTION 17: Bond Reserve Fund. The City reaffirms its covenant to the holders of the
Previously Issued Bonds and agrees with the Holders of the Bonds that there shall be
accumulated and maintained in the Bond Reserve Fund an amount equal to at least the
average annual principal and interest requirement of the outstanding Bonds Similarly Secured.
In accordance with the ordinances authorizing the issuance of the Previously Issued
Bonds, there is currently on deposit to the credit of the Bond Reserve Fund an amount equal to
not less than $392,522.00 (the "Current Reserve "). By reason of the issuance of the Bonds, the
amount to be maintained in said Fund, subject to adjustment as hereinafter provided in this
Section, shall be $402,463.00 (the "Required Reserve "), which amount totals not less than the
average annual principal and interest requirement of the outstanding Bonds Similarly Secured
after giving effect to the issuance of the Bonds. Beginning on or before the 10th day of the
month next following the delivery of the Bonds and on or before the 10th day of each following
month until the Required Reserve has been accumulated in the Reserve Fund, the City
covenants and agrees to deposit to the Reserve Fund from the Net Revenues of the System an
amount equal to 1 /60th of the difference between the Required Reserve and the Current
Reserve.
Notwithstanding the provisions of the preceding paragraph relating to the Required
Reserve, the total amount to be accumulated and maintained in the Bond Reserve Fund may, at
the option of the City, be recomputed and adjusted to an amount equal to the average annual
principal and interest requirements of the Bonds Similarly Secured at any time outstanding, and
such adjustment is particularly anticipated at such time as Bonds Similarly Secured may be
redeemed and retired prior to their stated maturity. Furthermore, when the amount on deposit in
the Bond Reserve Fund equals or exceeds the total amount required to be maintained therein,
moneys realized from the investment of funds in the Bond Reserve Fund in excess of the
balance required to be maintained in said Fund may be transferred to the Bond Fund.
SECTION 18: Investments. Moneys on deposit in the Bond Reserve Fund and the
Emergency Fund may be invested as follows:
(a) Bond Reserve Fund in direct obligations of or obligations unconditionally
guaranteed by the United States of America having maturities not in excess of ten (10) years
from the making of such investment as the City Council may direct. Such obligations shall be
held by the custodian bank where said Fund is maintained, and if at any time uninvested funds
shall be insufficient to permit payment of principal and interest at maturity of the Bonds Similarly
Secured, the custodian bank of said Fund shall sell on the open market such amount of the
securities as is required to pay such Bonds Similarly Secured and interest thereon when due
and shall give notice thereof to the City Manager.
(b) Emergency Fund in direct obligations of or obligations unconditionally
guaranteed by the United States of America having maturities not in excess of five (5) years
from the making of such investment as the City Council may direct. Such investment securities
shall be held by the custodian bank where said Fund is maintained and if at any time it becomes
necessary to liquidate same to provide sums for any purpose for which such Fund was created,
the City shall notify the custodian bank of said Fund who shall promptly sell on the open market
such amount thereof as may be required, making the proceeds immediately available. Should
the purpose be for meeting bond requirements, the City agrees promptly to accomplish the
required transfers to the paying agent bank for the Bonds Similarly Secured.
45464529.1 17
SECTION 19: Payment of Bonds. While any of the Bonds are Outstanding, the proper
officers of the City are hereby authorized to transfer or cause to be transferred to the Paying
Agent/Registrar therefor, from funds on deposit in the Bond Fund and, if necessary, in the Bond
Reserve Fund and Emergency Fund, amounts sufficient to fully pay and discharge promptly as
each installment of interest and principal of the Bonds accrues or matures or comes due by
reason of redemption prior to maturity; such transfer of funds to be made in such manner as will
cause immediately available funds to be deposited with the Paying Agent/Registrar for the
Bonds at the close of the business day next preceding the date of payment for the Bonds. The
Paying Agent/Registrar shall cancel or destroy all paid Bonds, and furnish the City with an
appropriate certificate of cancellation or destruction.
SECTION 20: Deficiencies in Funds. If in any month the City shall, for any reason, fail
to pay into the Bond Fund, the Emergency Fund or Bond Reserve Fund, the full amounts above
stipulated, amounts equivalent to such deficiencies shall be set apart and paid into said Funds
from the first available and unallocated Net Revenues of the System in the following month or
months and such payments shall be in addition to the amounts hereinabove provided to be
otherwise paid into said Funds during such month or months.
SECTION 21: Excess Revenues. Any surplus Net Revenues of the System remaining
after all payments have been made into the Bond Fund, Emergency Fund and Bond Reserve
Fund, and after all deficiencies in making deposits to said Funds have been remedied, may be
transferred and used for any lawful general or special purpose, as permitted by the terms of
V.T.C.A., Government Code, Article 1502.059; including the use thereof either for the retirement
in advance of maturity of the Bonds Similarly Secured, according to the provisions made for
their prior redemption, or for the purchase of any of such Bonds Similarly Secured on the open
market at not exceeding the market value thereof. Nothing herein, however, shall be construed
as impairing the right of the City to pay, in accordance with the provisions thereof, any junior lien
bonds legally issued by it and payable out of the Net Revenues of the System.
SECTION 22: Security of Funds. Moneys on deposit in the special Funds referred to in
this Ordinance (except any amounts as may be properly invested) shall be secured in the
manner and to the fullest extent required by the laws of the State of Texas for the security of
public funds, and moneys on deposit in such special Funds shall be used only for the purposes
permitted by this Ordinance and the ordinances authorizing the issuance of the Previously
Issued Bonds.
SECTION 23: Issuance of Additional Bonds. In addition to the right to issue bonds of
inferior lien as authorized by the laws of the State of Texas, the City hereby reserves the right to
issue Additional Bonds which, when duly authorized and issued in compliance with the terms
and conditions hereinafter appearing, shall be on a parity with the Previously Issued Bonds and
the Bonds, payable from and equally secured by a first lien on and pledge of the Net Revenues
of the System. The Additional Bonds may be issued in one or more installments, provided,
however, that none shall be issued unless and until the following conditions have been met:
(a) The City is not then in default as to any covenant, condition or
obligation contained in the ordinances authorizing the issuance of the then
outstanding Bonds Similarly Secured;
(b) The laws of the State of Texas in force at such time provide for the
issuance of such Additional Bonds;
45464529.1 18
(c) Each of the Special Funds created for the payment, security and
benefit of the Bonds Similarly Secured contains the amount of money then
required to be on deposit therein;
(d) The Net Revenues of the System for the twelve -month period
preceding the month of the adoption of the ordinance authorizing the issuance of
the Additional Bonds, as shown by a report of a certified public accountant or
licensed public accountant, are equal to at least one and one -fourth (1 %) times
the average annual principal and interest requirements of all bonds which will be
secured by a first lien on and pledge of the Net Revenues of the System, and
which will be outstanding upon the issuance of the Additional Bonds. The term
"Net Revenues" as used in this Section 23 shall mean the gross revenues after
deducting the expenses of operation and maintenance but not deducting
expenditures which, under standard accounting procedures, should be charged
to capital expenditures;
(e) The Additional Bonds are made to mature on July 15 of each of
the years in which they are scheduled to mature; and
(f) The ordinance authorizing the issuance of Additional Bonds
provides that the amount to be accumulated and maintained in the Bond Reserve
Fund shall be increased to an amount equal to not less than the average annual
principal and interest requirements of all bonds payable from and secured by a
first lien on and pledge of the Net Revenues of the System (after giving effect to
the issuance of the proposed Additional Bonds). The additional amount to be
accumulated in said Fund shall be deposited therein in not more than five (5)
years and one (1) month from the date of the passage of the ordinance
authorizing the issuance of the Additional Bonds.
At such time as the Series 1967 bonds identified in Section 10(f)(1) of this Ordinance
have been paid off, refunded or canceled and are no longer outstanding, the City may issue
Additional Bonds secured by a first lien on and pledge of the Net Revenues of the System on a
parity with the Bonds Similarly Secured then outstanding, provided all conditions above set forth
in this Section have been met, except that the test for subparagraph (d) of this Section shall
then be as follows:
(d) The Net Revenues of the System for the twelve -month period or
for the fiscal year next preceding the month of the adoption of the ordinance
authorizing the issuance of the Additional Bonds, as shown by a report of a
certified public accountant or licensed public accountant, are equal to at least
one and one -fourth (1%) times the average annual principal and interest
requirements of all bonds which will be secured by a first lien on and pledge of
the Net Revenues of the System, and which will be outstanding upon the
issuance of the Additional Bonds. The term "Net Revenues" as used in this
Section shall mean the gross revenues after deducting the expenses of operation
and maintenance but not deducting expenditures which, under standard
accounting procedures, should be charged to capital expenditures.
SECTION 24: Maintenance and Operation— Insurance. The City hereby covenants and
agrees that the System shall be operated on a Fiscal Year basis and shall be maintained in
good condition and operated in an efficient manner and at reasonable cost. So long as any of
45464529.1 19
the Bonds are Outstanding, the City agrees to maintain insurance for the benefit of the Holder or
Holders of such Bonds of the kinds and in the amounts which are usually carried by private
companies engaged in a similar type of business. Nothing in this Ordinance shall be construed
as requiring the City to expend any funds which are derived from sources other than the
operation of the System, but nothing herein shall be construed as preventing the City from doing
so.
SECTION 25: Records — Accounts — Accounting Reports. The City hereby covenants and
agrees so long as any of the Bonds or any interest thereon remain outstanding and unpaid, it
will keep and maintain a proper and complete system of records and accounts pertaining to the
operation of the System and its component parts separate and apart from all other records and
accounts of the City in accordance with generally accepted accounting principles prescribed for
municipal corporations, and complete and correct entries shall be made of all transactions
relating to said System, as provided by V.T.C.A., Government Code, Article 1502.066. The
Holder or Holders of any Bonds, or any duly authorized agent or agents of such Holders, shall
have the right at all reasonable times to inspect all such records, accounts and data relating
thereto and to inspect the System and all properties comprising same. The City further agrees
that as soon as possible following the close of each Fiscal Year, it will cause an audit of such
books and accounts to be made by an independent firm of Certified Public Accountants or
Licensed Public Accountants. Each such audit, in addition to whatever other matters may be
thought proper by the Accountant, shall particularly include the following:
(a) A detailed statement of the income and expenditures of the
System for such Fiscal Year;
(b) A balance sheet as of the end of such Fiscal Year;
(c) The Accountant's comments regarding the manner in which the
City has complied with the covenants and requirements of this Ordinance and his
recommendations for any changes or improvements in the operation, records
and accounts of the System;
(d) A list of the insurance policies in force at the end of the Fiscal
Year on the System properties, setting out as to each policy the amount thereof,
the risk covered, the name of the insurer, and the policy's expiration date;
(e) A list of the securities which have been on deposit as security for
the money in the Bond Fund, the Emergency Fund and the Bond Reserve Fund
throughout the Fiscal Year, a list of the securities, if any, in which the Emergency
Fund and Bond Reserve Fund has been invested, and a statement of the manner
in which money in the System Fund has been secured in such Fiscal Year; and
(f) The total number of customers connected with the components of
the System at the end of the Fiscal Year.
Expenses incurred in making the audits above referred to are to be regarded as
maintenance and operating expenses of the System and paid as such. Copies of the aforesaid
annual audit shall be immediately furnished to the Executive Director of the Municipal Advisory
Council of Texas at his office in Austin, Texas, and, upon written request, to the original
purchasers and any subsequent Holder of the Bonds.
45464529.1 20
SECTION 26: Remedies in Event of Default. In addition to all the rights and remedies
provided by the laws of the State of Texas, the City covenants and agrees particularly that in the
event the City (a) defaults in payments to be made to the Bond Fund or Bond Reserve Fund as
required by this Ordinance, or (b) defaults in the observance or performance of any other of the
covenants, conditions or obligations set forth in this Ordinance, the Holder or Holders of any of
the Bonds shall be entitled to a writ of mandamus issued by a court of proper jurisdiction
compelling and requiring the City Council and other officers of the City to observe and perform
any covenant, condition or obligation prescribed in this Ordinance.
No delay or omission to exercise any right or power accruing upon any default shall
impair any such right or power, or shall be construed to be a waiver of any such default or
acquiescence therein, and every such right or power may be exercised from time to time and as
often as may be deemed expedient. The specific remedies herein provided shall be cumulative
of all other existing remedies and the specification of such remedies shall not be deemed to be
exclusive.
SECTION 27: Special Covenants. The City hereby further covenants as follows:
(a) It has the lawful power to pledge the revenues supporting this issue of Bonds and
has lawfully exercised said power under the Constitution and laws of the State of Texas,
including V.T.C.A. Government Code, Chapters 1502.56 and 1502.58; that the Previously
Issued Bonds, the Bonds, and the Additional Bonds, when issued, shall be ratably secured
under said pledge of income in such manner that one bond shall have no preference over any
other bond or said issues.
(b) Other than for the payment of the Previously Issued Bonds, the Bonds, the
outstanding "City of Euless, Texas, Tax and Waterworks and Sewer System (Limited Pledge)
Revenue Certificates of Obligation, Series 1995 ", dated October 15, 1995, "City of Euless,
Texas, Tax and Waterworks and Sewer System (Limited Pledge) Revenue Certificates of
Obligation, Series 1998 ", dated February 15, 1998, "City of Euless, Texas, Tax and Waterworks
and Sewer System (Limited Pledge) Revenue Certificates of Obligation, Taxable Series 2000 ",
dated March 1, 2000, "City of Euless, Texas, Tax and Waterworks and Sewer System (Limited
Pledge) Revenue Certificates of Obligation, Series 2000K, dated May 1, 2000, "City of Euless,
Texas, Tax and Waterworks and Sewer System Surplus Revenue Certificates of Obligation,
Series 2001 ", dated April 1, 2001, and the "City of Euless, Texas, Tax and Waterworks and
Sewer System Surplus Revenue Certificates of Obligation, Series 2004" (authorized for
issuance concurrently with the Bonds), the Net Revenues of the System have not in any manner
been pledged to the payment of any debt or obligation of the City or of the System.
(c) So long as any of the Bonds or any interest thereon remain outstanding, the City
will not sell, lease or encumber the System or any substantial part thereof; provided, however,
this covenant shall not be construed to prohibit the sale of such machinery, or other properties
or equipment which has become obsolete or otherwise unsuited to the efficient operation of the
System, and, also, with the exception of the Additional Bonds expressly permitted by this
ordinance to be issued, it will not encumber the Net Revenues of the System unless such
encumbrance is made junior and subordinate to all of the provisions of this Ordinance.
(d) No free service of the System shall be allowed, and should the City or any of its
agencies or instrumentalities make use of the services and facilities of the System, payment of
the reasonable value thereof shall be made by the City out of funds from sources other than the
revenues and income of the System.
45464529.1 21
(e) To the extent that it legally may, the City further covenants and agrees so long as
any of the Bonds or any interest thereon are outstanding no franchise shall be granted for the
installation or operation of any competing waterworks and sanitary sewer system other than
those owned by the City, and the operation of any such system by anyone other than the City is
hereby prohibited.
SECTION 28: Bonds are Special Obligations. The Bonds are special obligations of the
City payable from the pledged Net Revenues and the Holders thereof shall never have the right
to demand payment thereof out of funds raised or to be raised by taxation.
SECTION 29: 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 the
Net Revenues of the System under this Ordinance and all other obligations of the City to the
Holders shall thereupon cease, terminate, and become void 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
Obligations shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an
authorized escrow agent, which Government Obligations have been certified by an independent
accounting firm to mature as to principal and interest in such amounts and at such times as will
insure the availability, without reinvestment, of sufficient money, together with any 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 Obligations 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 Obligations 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 three (3) years
after the Stated Maturity, or applicable redemption 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.
SECTION 30: Ordinance a Contract - Amendments. 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 and in Section 45 hereof. The City, may, without the consent of or notice to any
45464529.1 22
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 written consent of Holders holding
a majority in aggregate principal amount of the Bonds Similarly Secured then outstanding,
amend, add to, or rescind any of the provisions of this Ordinance; provided that, without the
consent of all Holders of the Bonds then outstanding, 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 therefor, 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.
SECTION 31: 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 new Bond issued pursuant to this Section in lieu of any mutilated, destroyed, lost,
or stolen Bond shall constitute a replacement of the prior obligation of the City, whether or not
the mutilated, destroyed, lost, or stolen Bond shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Ordinance equally and ratably with all other
Outstanding Bonds.
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 32: 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 as it appears in the Security Register.
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.
45464529.1 23
SECTION 33: Cancellation. All Bonds surrendered for payment, redemption, transfer or
exchange, 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 AgentiRegistrar 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 destroyed as directed by the City.
SECTION 34: Covenants to Maintain Tax - Exempt Status. (a) Definitions. When used
in this Section 33, the following terms have the following meanings:
"Closing Date" means the date on which the Bonds are first authenticated
and delivered to the initial purchasers against payment therefor.
"Code" means the Internal Revenue Code of 1986, as amended by all
legislation, if any, effective on or before the Closing Date.
"Computation Date" has the meaning set forth in Section 1.148 -1(b) of the
Regulations.
"Gross Proceeds" means any proceeds as defined in Section 1.148 -1(b)
of the Regulations, and any replacement proceeds as defined in Section
1.148 -1(c) of the Regulations, of the Bonds.
`Investment' has the meaning set forth in Section 1.148 -1(b) of the
Regulations.
"Nonpurpose Investment" means any investment property, as defined in
Section 148(b) of the Code, in which Gross Proceeds of the Bonds are invested
and which is not acquired to carry out the governmental purposes of the Bonds.
"Rebate Amount" has the meaning set forth in Section 1.148 -1(b) of the
Regulations.
"Regulations" means any proposed, temporary, or final Income Tax
Regulations issued pursuant to Sections 103 and 141 through 150 of the Code,
and 103 of the Internal Revenue Code of 1954, which are applicable to the
Bonds. Any reference to any specific Regulation shall also mean, as
appropriate, any proposed, temporary or final Income Tax Regulation designed
to supplement, amend or replace the specific Regulation referenced.
"Yield" of (1) any Investment has the meaning set forth in Section 1.148-
5 of the Regulations and (2) the Bonds has the meaning set forth in Section
1.148 -4 of the Regulations.
(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
45464529.1 24
owner thereof for federal income tax purposes. Without limiting the generality of the foregoing,
unless and until the City receives 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 or refinanced directly or
indirectly with Gross Proceeds of the Bonds, and not use or permit the use of
such Gross Proceeds (including all contractual arrangements with terms different
than those applicable to the general public) or any property acquired, constructed
or improved with such Gross Proceeds in any activity carried on by any person or
entity (including the United States or any agency, department and instrumentality
thereof) other than a state or local government, unless such use is solely as a
member of the general public; and
(2) not directly or indirectly impose or accept any charge or other
payment by any person or entity who is treated as using Gross Proceeds of the
Bonds or any property the acquisition, construction or improvement of which is to
be financed or refinanced directly or indirectly with such Gross Proceeds, 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) 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 in any Investment
(or use Gross Proceeds to replace money so invested), if as a result of such investment the
Yield from the Closing Date of all Investments acquired with Gross Proceeds (or with money
replaced thereby), 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.
45464529.1 25
(g) Information Report. The City shall timely file the information required by
Section 149(e) of the Code with the Secretary of the Treasury on Form 8038 -G or such other
form and in such place as the Secretary may prescribe.
(h) Rebate of Arbitrage Profits. 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 (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 retain all records of accounting for at least six
years after the day on which the last Outstanding Bond is discharged. However,
to the extent permitted by law, the City may commingle Gross proceeds of the
Bonds with other money of the City, provided that the City separately accounts
for each receipt and expenditure of Gross Proceeds and the obligations acquired
therewith.
(2) Not less frequently than each Computation Date, the City shall
calculate the Rebate Amount in accordance with rules set forth in Section 148(f)
of the Code and the Regulations and rulings thereunder. The City shall maintain
such calculations with its official transcript of proceedings 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
Purchasers and the loan of the money represented thereby and in order to
induce such purchase by measures designed to insure 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 from the construction fund,
other appropriate fund, or if permitted by appliicable Texas statute, regulation or
opinion of the Attorney General of the State of Texas, the Bond Fund the amount
that when added to the future value of previous rebate payments made for the
Bonds equals (i) in the case of a Final Computation Date as defined in Section
1.148- 3(3)(2) of the Regulations, one hundred percent (100 %) of the Rebate
Amount on such date; and (ii) in the case of any other Computation Date, ninety
percent (90 %) of the Rebate Amount on such date. In all cases, the rebate
payments shall be made at the times, in the installments, to the place and in the
manner as is or may be required by Section 148(f) of the Code and the
Regulations and rulings thereunder, and shall be accompanied by Form 8038 -T
or such other forms and information as is or may be required by Section 148(f) of
the Code and the Regulations and rulings thereunder.
(4) The City shall exercise reasonable diligence to assure that no
errors are made in the calculations and payments required by paragraphs (2) and
(3), and if an error is made, to discover and promptly correct such error within a
reasonable amount of time thereafter (and in all events within one hundred eighty
(180) days after discovery of the error), including payment to the United States of
any additional Rebate Amount owed to it, interest thereon, and any penalty
imposed under Section 1.148 -3(h) of the Regulations.
(i) Not to Divert Arbitrage Profits. 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
45464529.1 26
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 Subsection (h) of this
Section 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 parry.
Q) Elections. The City hereby directs and authorizes the Mayor, City Secretary, City
Manager and Director of Finance, individually or jointly, to make elections permitted or required
pursuant to the provisions of the Code or the Regulations, as they deem necessary or
appropriate in connection with the Bonds, in the Certificate as to Tax Exemption or similar or
other appropriate certificate, form or document.
SECTION 35: Sale of Bonds - Official Statement Approval. The Bonds authorized by
this Ordinance are hereby sold by the City to Southwest Securities, Inc. (herein referred to as
the "Underwriter') in accordance with the Purchase Contract, dated June 22, 2004, attached
hereto as Exhibit B and incorporated herein by reference as a part of this Ordinance for all
purposes. The Mayor and City Secretary are 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 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 in the Bond Purchase Agreement are true and correct in all material respects and
shall be honored and performed by the City.
Furthermore, the use of the Official Statement by the Underwriter in connection with the
public offering and sale of the Bonds is hereby ratified, confirmed and approved in all respects.
The final Official Statement, which reflects the terms of sale (together with such changes
approved by the Mayor, Mayor Pro Tem, City Secretary, City Manager, or Director of Finance,
one or more of said officials), shall be and is hereby in all respects approved and the
Underwriters are hereby authorized to use and distribute said final Official Statement, dated
June 22, 2004, 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
Underwriters, and such final Official Statement in the form and content manually executed by
said officials shall be deemed to be approved by the City Council and constitute the Official
Statement authorized for distribution and use by the Underwriter.
SECTION 36: 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 Underwriter.
Furthermore, the Mayor, Mayor Pro Tern, City Secretary, City Manager and Director of
Finance, any one or more of said officials, are hereby authorized and directed to furnish and
execute such documents and certifications relating to the City and the issuance 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, their registration by the Comptroller of
Public Accounts and the delivery of the Bonds to the Underwriter, and, together with the City's
financial advisor, bond counsel and the Paying Agent/Registrar, make the necessary
45464529.1 27
arrangements for the delivery of the Initial Bond(s) to the Underwriter and the initial exchange
thereof for definitive Bonds.
SECTION 37: Proceeds of Sale. The proceeds of sale of the Bonds, excluding the
accrued interest received from the Underwriter and amounts to pay costs of issuance and
municipal bond insurance premium, shall be deposited in a construction fund maintained at an
official depository of the City. Pending expenditure for authorized projects and purposes, such
proceeds of sale may be invested in authorized investments in accordance with the provisions
of V.T.C.A., Government Code, Chapter 2256, including guaranteed investment contracts
permitted by V.T.C.A., Government Code, Section 2256.015 et seq., and the City's investment
policies and guidelines and, subject to the provisions of Section 34(h) hereof, any investment
earnings realized shall be expended for such authorized projects and purposes or deposited in
the Bond Fund as shall be determined by the City Council. Accrued interest received from the
sale of the Bonds and any excess bond proceeds, including investment earnings, remaining
after completion of all authorized projects or purposes and paying or making provision for the
payment of the amounts owed pursuant to Section 34(h) hereof, shall be deposited to the credit
of the Bond Fund.
SECTION 38: Legal Opinion. The obligation of the Underwriter to accept delivery of the
Bonds is subject to being furnished a final opinion of Fulbright & Jaworski L.L.P., Attorneys,
Dallas, Texas, approving such Bonds as to their validity, said opinion to be dated and delivered
as of the date of delivery and payment for such Bonds. A true and correct reproduction of said
opinion is hereby authorized to be printed on the definitive Bonds or an executed counterpart
thereof shall accompany the global Bonds deposited with the Depository Trust Company.
SECTION 39: CUSIP Numbers. CUSIP numbers may be printed or typed on the
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 said Bonds as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds.
SECTION 40: 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 41: 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 42: 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 43: 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 Council hereby
declares that this Ordinance would have been enacted without such invalid provision.
45464529.1 28
SECTION 44: 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 45: Continuing Disclosure Undertaking. (a) Definitions. As used in this
Section, the following terms have the meanings ascribed to such terms below:
"MSRB" means the Municipal Securities Rulemaking Board.
"NRMSIR" means each person whom the SEC or its staff has determined to be a
nationally recognized municipal securities information repository within the meaning of the Rule
from time to time.
"Rule" means SEC Rule 15c2 -12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
"SID" means any person designated by the State of Texas or an authorized department,
officer, or agency thereof as, and determined by the SEC or its staff to be, a state information
depository within the meaning of the Rule from time to time.
(b) Annual Reports. The City shall provide annually to each NRMSIR and any SID,
within six months after the end of each fiscal year (beginning with the fiscal year ending
September 30, 2004) financial information and operating data with respect to the City of the
general type included in the final Official Statement approved by Section 35 of this Ordinance,
being the information described in Exhibit C hereto. Financial statements to be provided shall
be (1) prepared in accordance with the accounting principles described in Exhibit C hereto and
(2) audited, if the City commissions an audit of such statements and the audit is completed
within the period during which they must be provided. If audited financial statements are not
available at the time the financial information and operating data must be provided, then the City
shall provide unaudited financial statements for the applicable fiscal year to each NRMSIR and
any SID with the financial information and operating data and will file the annual audit report
when and if the same becomes available.
If the City changes its fiscal year, it will notify each NRMSIR and any SID of the change
(and of the date of the new fiscal year end) prior to the next date by which the City otherwise
would be required to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section may
be set forth in full in one or more documents or may be included by specific reference to any
document (including an official statement or other offering document, if it is available from the
MSRB) that theretofore has been provided to each NRMSIR and any SID or filed with the SEC.
(c) Material Event Notices. The City shall notify any SID and either each NRMSIR or
the MSRB, in a timely manner, of any of the following events with respect to the Bonds, if such
event is material within the meaning of the federal securities laws:
1. Principal and interest payment delinquencies;
2. Non - payment related defaults;
3. Unscheduled draws on debt service reserves reflecting financial difficulties;
45464529.1 29
4. Unscheduled draws on credit enhancements reflecting financial difficulties;
5. Substitution of credit or liquidity providers, or their failure to perform;
6. Adverse tax opinions or events affecting the tax - exempt status of the Bonds;
7. Modifications to rights of holders of the Bonds;
8. Bond calls;
9. Defeasances;
10. Release, substitution, or sale of property securing repayment of the Bonds; and
11. Rating changes.
The City shall notify any SID and either each NRMSIR or the MSRB, in a timely manner,
of any failure by the City to provide financial information or operating data in accordance with
subsection (b) of this Section by the time required by such Section.
(d) Limitations, Disclaimers, and Amendments. The City shall be obligated to
observe and perform the covenants specified in this Section while, but only while, the City
remains an "obligated person" with respect to the Bonds within the meaning of the Rule, except
that the City in any event will give the notice required by subsection (c) hereof of any Bond calls
and defeasance that cause the City to be no longer such an "obligated person."
The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or
any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the City's financial results, condition, or prospects or hereby undertake to update
any information provided in accordance with this Section or otherwise, except as expressly
provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR
BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT,
FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE CITY,
WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT
SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON,
IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE
LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE.
No default by the City in observing or performing its obligations under this Section shall
constitute a breach of or default under this Ordinance for purposes of any other provision of this
Ordinance.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
Notwithstanding anything herein to the contrary, the provisions of this Section may be
amended by the City from time to time to adapt to changed circumstances resulting from a
change in legal requirements, a change in law, or a change in the identity, nature, status, or
type of operations of the City, but only if (1) the provisions of this Section, as so amended,
would have permitted an underwriter to purchase or sell Bonds in the primary offering of the
Bonds in compliance with the Rule, taking into account any amendments or interpretations of
45464529.1 30
the Rule to the date of such amendment, as well as such changed circumstances, and (2) either
(a) the Holders of a majority in aggregate principal amount (or any greater amount required by
any other provision of this Ordinance that authorizes such an amendment) of the outstanding
Bonds consent to such amendment or (b) a Person that is unaffiliated with the City (such as
nationally recognized bond counsel) determines that such amendment will not materially impair
the interests of the Holders and beneficial owners of the Bonds. The provisions of this Section
may also be amended from time to time or repealed by the City if the SEC amends or repeals
the applicable provisions of the Rule or a court of final jurisdiction determines that such
provisions are invalid, but only if and to the extent that reservation of the City's right to do so
would not prevent underwriters of the initial public offering of the Bonds from lawfully purchasing
or selling Bonds in such offering. If the City so amends the provisions of this Section, it shall
included with any amended financial information or operating data filed with each NRMSIR and
SID pursuant to subsection (b) of this Section an explanation, in narrative form, of the reasons
for the amendment and of the impact of any change in the type of financial information or
operating data so provided.
SECTION 46: MBIA Insurance. The Bonds have been sold with the principal of and
interest thereon being insured by MBIA Insurance Corporation (hereinafter called "MBIA ")
pursuant to a Financial Guaranty Insurance Policy. In accordance with the terms and conditions
applicable to insurance provided by MBIA, the City covenants and agrees that, in the event the
principal and interest due on the Bonds shall be paid by MBIA pursuant to the policy referred to
this Section, the assignment and pledge of all funds and all covenants, agreements and other
obligations of the City to the Holders shall continue to exist and MBIA shall be subrogated to the
rights of such Holders; and furthermore, the City covenants and agrees that:
(a) In the event that, on the second business day, and again on the business day,
prior to the payment date on the Bonds, the Paying Agent/Registrar has not received sufficient
moneys to pay all principal of and interest on the Bonds due on the second following or
following, as the case may be, business day, the Paying Agent/Registrar shall immediately
notify MBIA or its designee on the same business day by telephone or telegraph, confirmed in
writing by registered or certified mail, of the amount of the deficiency.
(b) If the deficiency is made up in whole or in part prior to or on the payment date,
the Paying Agent/Registrar shall so notify MBIA or its designee.
(c) In addition, if the Paying Agent/Registrar has notice that any Holder has been
required to disgorge payments of principal of or interest on the Bonds to a trustee in bankruptcy
or creditors or others pursuant to a final judgment by a court of competent jurisdiction that such
payment constitutes a voidable preference to such Holder within the meaning of any applicable
bankruptcy laws, then the Paying Agent/Registrar shall notify the MBIA or its designee of such
fact by telephone or telegraphic notice, confirming in writing by registered or certified mail.
(d) The Paying Agent/Registrar is hereby irrevocably designated, appointed, directed
and authorized to act as attorney -in -fact for Holders of the Bonds as follows:
(1) If and to the extent there is a deficiency in amounts required to
pay interest on the Bonds, the Paying Agent/Registrar shall (a) execute and
deliver to State Street Bank and Trust Company, N.A., or its successors under
the Policy (the "Insurance Paying Agent "), in form satisfactory to the Insurance
Paying Agent, an instrument appointing the MBIA as agent for such Holders in
such legal proceeding related to the payment of such interest and an assignment
45464529.1 31
to the MBIA of the claims for interest to which such deficiency relates and which
are paid by MBIA, (b) receive as designee to the respective Holders (and not as
Paying Agent/Registrar) in accordance with the tenor of the Policy payment from
the Insurance Paying Agent with respect to the claims for interest so assigned,
and (c) disburse the same to such respective Holders; and
(2) If and to the extent of a deficiency in amounts required to pay
principal of the Bonds, the Paying Agent/Registrar shall (a) execute and deliver
to the Insurance Paying Agent in form satisfactory to the Insurance Paying Agent
an instrument appointing MBIA as agent for such Holder in any legal proceeding
relating to the payment of such principal and an assignment to MBIA of any of
the Bonds surrendered to the Insurance Paying Agent or so much of the principal
thereof as has not previously been paid or for which moneys are not held by the
Paying Agent/Registrar and available for such payment (but such assignment
shall be delivered only if payment from the Insurance Paying Agent is received),
(b) receive as designee of the respective Holders (and not as Paying
Agent/Registrar) in accordance with the tenor of the Policy payment therefor from
the Insurance Paying Agent, and (c) disburse the same to such Holders.
(e) Payments with respect to claims for interest on and principal of Bonds disbursed
by the Paying Agent/Registrar from proceeds of the Policy shall not be considered to discharge
the obligation of the City with respect to such Bonds, and MBIA shall become of the owner of
such unpaid Bond and claims for the interest in accordance with the tenor of the assignment
made to it under the provisions of this subsection or otherwise.
(f) Irrespective of whether any such assignment is executed and delivered, the City
and the Paying Agent/Registrar hereby agree for the benefit of the MBIA that:
(1) They recognize that to the extent the MBIA makes payments,
directly or indirectly (as by paying through the Paying Agent/Registrar), on
account of principal of and interest on the Bonds, MBIA will be subrogated to the
rights of such Holders to receive the amount of such principal and interest from
the City, as provided and solely from the sources stated in this Ordinance and
the Bonds; and
(2) They will accordingly pay to MBIA the amount of such principal
and interest (including principal and interest recovered under subparagraph (ii) of
the first paragraph of the Policy, which principal and interest shall be deemed
past due and not to have been paid), as provided in this Ordinance and the
Bonds, but only from the sources and in the manner provided herein for the
payment of principal of and interest on the Bonds to Holders, and will otherwise
treat the MBIA as the owner of such rights to the amount of such principal and
interest.
(g) In connection with the issuance of additional obligations, the City shall deliver to
the MBIA a copy of the disclosure document, if any, circulated with respect to such additional
obligations.
(h) No amendment or supplement to this Ordinance may become effective without
prior consent of MBIA. Copies of any amendments made to the documents executed in
45464529.1 32
connection with the issuance of the Bonds which are consented to by the MBIA shall be sent to
Standard & Poor's Corporation.
(i) MBIA shall receive notice of the resignation or removal of the Paying
Agent/Registrar and the appointment of a successor thereto.
(j) MBIA shall receive copies of all notices required to be delivered to Holders and,
on an annual basis, copies of the City's audited financial statements and annual budget.
(k) Any notice that is required to be given to a Holder of the Bonds or to the Paying
Agent/Registrar pursuant to this Ordinance shall also be provided to MBIA. All notices required
to be given to MBIA under this Ordinance shall be in writing and shall be sent by registered or
certified mail addressed to MBIA Insurance Corporation, 113 King Street, Armonk, New York
10504, Attention: Surveillance.
(1) The City will not enter into a guaranteed investment contract for the investment of
proceeds of the Bonds pursuant to the Public Funds Investment Act without the prior written
consent of MBIA and any investment of money deposited to the credit of the special funds
created or maintained pursuant to this Ordinance shall be in accordance with the Public Funds
Investment Act..
(m) MBIA, acting alone, shall have the right to direct all remedies in the event of a
default. MBIA shall be recognized as the registered owner of each bond which it insures for the
purposes of exercising all rights and privileges available to Holders. For Bonds which it insures,
MBIA shall have the right to institute any suit, action, or proceeding at law or in equity under the
same terms as the Holder in accordance with the applicable provisions of this Ordinance.
(n) The City agrees, subject to annual appropriation by the City and to the extent
permitted by law, to reimburse MBIA for all reasonable expenses, including attorneys' fees and
expenses, incurred by MBIA in connection with (i) the enforcement by MBIA of the City's
obligations, or the preservation or defense of any rights of MBIA, under this Ordinance and any
other document executed in connection with the issuance of the Bonds, and (ii) any consent,
amendment, waiver or other action with respect this Ordinance or any related document,
whether or not granted or approved, together with interest on all such expenses from and
including the date incurred to the date of payment at Citibank's Prime Rate plus 3% or the
maximum interest rate permitted by law, whichever is less. In addition, MBIA reserves the right
to charge a fee in connection with its review of such consent, amendment or waiver, whether or
not granted or approved.
(o) The City agrees not to use MBIA's name in any public document including,
without limitation, a press release or presentation, announcement or forum without MBIA's prior
consent. In the event that the City advised by counsel that it has a legal obligation to disclose
MBIA's name in any press release, public announcement or other public document, the City
shall provide MBIA with at least three (3) business days' prior written notice of its intent to use
MBIA's name together with a copy of the proposed use of MBIA's name and of any description
of a transaction with MBIA and shall obtain MBIA's prior consent as to the form and substance
of the proposed use of MBIA's name and any such description.
(p) The City shall not enter into any agreement nor shall it consent to or participate in
any arrangement pursuant to which Bonds are tendered or purchased for any purpose other
45464529.1 33
than the redemption and cancellation or legal defeasance of such Bonds without the prior
written consent of MBIA.
(q) In regard to any defeasance of the Bonds, MBIA be shall provided with an
opinion of counsel acceptance to MBIA that the Bonds have been legally defeased and that the
escrow agreement establishing such defeasance operates to legally defease the Bonds within
the meaning of this Ordinance. In addition, MBIA shall be entitled to receive (i) 15 business
days notice of any advance refunding of the Bonds and (ii) an accountant's report with respect
to the sufficiency of the amounts deposited in escrow to defease the Bonds.
SECTION 47: 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 V.T.C.A., Government Code, Chapter 551, as
amended.
SECTION 48: Effective Date. This Ordinance shall be in force and effect from and after
its passage on the date shown below in accordance with V.T.C.A., Government Code,
Section 1201.028.
[remainder of page left blank intentionally]
45464529.1 34
PASSED AND ADOPTED, this June 22, 2004.
CITY OF EULESS, TEXAS
1
Mayor
ATTEST:
c
ecret ry
(City Seal)
45464529.1 35
PAYING AGENT /REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of June 22, 2004 (this "Agreement "), by and
between the City of Euless, Texas (the "Issuer"), and Wachovia Bank, National Association,
Houston, Texas, 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 issuance of its "City of
Euless, Texas, Waterworks and Sewer System Revenue Bonds, Series 2004" (the "Securities "),
dated June 15, 2004, which Securities are scheduled to be delivered to the initial purchasers on
or about July 22, 2004; and
WHEREAS, the Issuer has selected and the Bank has agreed 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; and
WHEREAS, the Bank represents it 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 appoints 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 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
45468586.1 EXHIBIT A
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 office of the Bank as indicated in Section 3.01
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.
"Issuer Request" and "Issuer Order" means a written request or order signed in
the name of the Issuer by the Mayor, Mayor Pro Tem, City Manager, Director of Finance,
or City Secretary, 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
45468586.1 _ 2 - EXHIBIT A
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.
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 Paving 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 at the following office:
Wachovia Bank, National Association
Customer Information Center
1525 West W. T. Harris Blvd.
Charlotte, North Carolina 28288
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 interest on
each Security when due, by computing the amount of interest to be paid each Holder and
making payment thereof to the Holders of the Securities (or their Predecessor Securities) on the
Record Date. All payments of principal and /or interest on the Securities to the registered
owners shall be accomplished (1) by the issuance of checks, payable to the registered owners,
drawn on the fiduciary account provided in Section 5.05 hereof, sent by United States mail, first
class, postage prepaid, to the address appearing on the Security Register or (2) by such other
method, acceptable to the Bank, requested in writing by the Holder at the Holder's risk and
expense.
Section 3.02. Payment Dates. The Issuer hereby instructs the Bank to pay the principal
of and interest on the Securities at the dates specified in the Bond Resolution.
45468586.1 _ 3 - EXHIBIT A
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 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. The Bank represents and warrants its office
in Houston, Texas will at all times have immediate access to the Security Register by electronic
or other means and will be capable at all times of producing a hard copy of the Security Register
at its Houston office for use by the Issuer.
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 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
45468586.1 _ 4 - EXHIBIT A
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 Securities. The Issuer hereby
instructs the Bank, subject to the provisions of Section 31 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 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.
45468586.1 _ cJ _ EXHIBIT A
(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, 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
responsibility 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 Accou nt/Col lateral ization. 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 collateralized by securities or obligations which qualify and are eligible
under both the laws of the State of Texas and the laws of 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
45468586.1 _ 6 - EXHIBIT A
Security and remaining unclaimed for three 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. Interpleader. 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 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 in the State
of Texas 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 other organizations, the Bank has the capability and, to
the extent within its control, will comply with the "Operational Arrangements," 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 9.
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.
45468586.1 -7- EXHIBIT A
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.
Section 6.07. Benefits of Agreement. 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. Entire Agreement. 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. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall constitute one
and the same Agreement.
Section 6.10. Termination. 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.
Section 6.11. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas.
45468586.1 _ g _ EXHIBIT A
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
WACHOVIA BANK, NATIONAL
ASSOCIATION,
Houston, Texas
BY
Title:
Address: 5847 San Felipe, Suite 1050
Houston, Texas 77057
CITY OF EULESS, TEXAS
BY
Mayor
Address: 201 North Ector Drive
Euless, Texas 76039
45468586.1 _ 9 - EXHIBIT A
EXHIBIT B
CITY OF EULESS, TEXAS
(Tarrant County)
$2,145,000
Waterworks and Sewer System Revenue Bonds, Series 2004
PURCHASE CONTRACT
Mayor and City Council
City of Euless
201 North Ector Drive
Euless, Texas 76039
Ladies and Gentlemen:
June 22, 2004
The undersigned, Southwest Securities (the "Underwriter''), offers to enter into the
following agreement with the City of Euless, Texas (the "City'), which, upon the City's written
acceptance of this offer, will be binding upon the City and the Underwriter. This offer is made
subject to the City's written acceptance hereof on or before 10:00 p.m., Central time, on June
22, 2004, and, if not so accepted, will be subject to withdrawal by the Underwriter upon notice
delivered to the City at any time prior to the acceptance hereof by the City. Terms not otherwise
defined in this Purchase Contract (this "Purchase Contract') shall have the same meanings set
forth in the Ordinance (as defined herein) or in the Official Statement (as defined herein).
1. Purchase and Sale of the Bonds. Subject to the terms and conditions and in
reliance upon the representations, warranties, and agreements set forth herein, the Underwriter
hereby agrees to purchase from the City, and the City hereby agrees to sell and deliver to the
Underwriter, all, but not less than all, of the City's $2,145,000 Waterworks and Sewer System
Revenue Bonds, Series 2004 (the "Bonds "). Inasmuch as this purchase and sale represents a
negotiated transaction, the City understands, and hereby confirms, that the Underwriter is not
acting as a fiduciary of the City, but rather is acting solely in its capacity as Underwriter for its
own account.
The principal amount of the Bonds to be issued, the dated date therefor, the maturities,
and sinking fund and optional redemption provisions and interest rates per annum are set forth
in the Official Statement attached hereto as Exhibit A and further described below. The Bonds
shall be as described in, and shall be issued and secured under and pursuant to the provisions
of an ordinance adopted by the City on June 22, 2004 (the "Ordinance ").
The purchase price for the Bonds shall be $2,136,293.15 (representing the par amount
of the Bonds, plus a net original issue premium of $12,563.45 and less an underwriting discount
DAL:508213.4
of $21,270.30), plus accrued interest on the Bonds calculated on the basis of a 360 -day year of
twelve 30 -day months from the dated date of the Bonds to the date of the Closing described
below.
Delivered to the City herewith is the Underwriter's good faith corporate check payable to
the order of the City in the amount of $21,650 (the "Check"). In the event the City does not
accept this offer, the Check shall be promptly returned to the Underwriter. Upon the City's
acceptance and countersignature of this offer, the Check (i) shall not be cashed or negotiated
but shall be held and retained in safekeeping by the City as security for the performance by the
Underwriter of its obligations, subject to the terms and conditions herein set forth, to purchase
and accept delivery of the Bonds at the Closing, and (ii) shall be applied and disposed of by the
City solely as provided in this Purchase Contract. In the event of the Underwriter's compliance
with such obligation to purchase and accept delivery of the Bonds at the Closing, the Check
shall be returned to the Underwriter at the Closing. In the event of the failure by the City to
deliver the Bonds at the Closing, or if the City shall be unable to satisfy the conditions to the
obligations of the Underwriter contained in this Purchase Contract, or if the obligations of the
Underwriter shall be terminated for any reason permitted by this Purchase Contract, the Check
shall be returned promptly to the Underwriter. In the event that the Underwriter fails (other than
for a reason permitted hereunder) to purchase and accept delivery of the Bonds at the Closing,
the City shall become entitled to cash or negotiate the Check, and the proceeds thereof shall be
retained by the City as and for fully liquidated damages for such failure of the Underwriter, and,
except as set forth in Section 8 hereof, no party shall have any further rights against the other
hereunder. The Underwriter and the City understand that in such event the City's actual
damages may be greater or may be less than such amount. Accordingly, the Underwriter
hereby waives any right to claim that the City's actual damages are less than such amount, and
the City's acceptance of this offer shall constitute a waiver of any right the City may have to
additional damages from the Underwriter.
2. Public Offering. The Underwriter agrees to make a bona fide public offering of all
of the Bonds at prices not to exceed the public offering prices set forth on page 2 of the Official
Statement and may subsequently change such offering prices without any requirement of prior
notice. The Underwriter may offer and sell Bonds to certain dealers (including dealers
depositing Bonds into investment trusts) and others at prices lower than the public offering
prices stated on the inside cover of the Official Statement, provided, however, that at least ten
percent (10 %) of the principal amount of the Bonds of each maturity shall be sold to the "public"
(exclusive of dealers, brokers and investment bankers, etc.) at the offering price set forth on
page 2 of the Official Statement. On or before the date of Closing, the Underwriter shall
execute an issue price certificate prepared by Bond Counsel (as hereinafter defined) verifying
the initial offering prices to the public at which a substantial amount of each stated maturity of
the Bonds was sold to the public.
3. The Official Statement. (a) Attached hereto as Exhibit A is either a draft of the
final Official Statement or a copy of the Preliminary Official Statement dated June 15, 2004 (the
"Preliminary Official Statement'), including the cover page and Appendices thereto, of the City
relating to the Bonds. Such draft of the final Official Statement or copy of the Preliminary
Official Statement, as amended to reflect the changes marked or otherwise indicated on Exhibit
A hereto, is hereinafter called the "Official Statement."
(b) The Preliminary Official Statement has been prepared for use in connection with
the public offering, sale, and distribution of the Bonds by the Underwriter. The City hereby
represents and warrants that the Preliminary Official Statement is deemed final by the City as of
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DAL.508213.4
its date, except for the omission of such information which is dependent upon the final pricing of
the Bonds for completion, all as permitted to be excluded by Section (b)(1) of Rule 15c2 -12
under the Securities Exchange Act of 1934 (the "Rule ").
(c) The City hereby authorizes the Official Statement and the information therein
contained to be used by the Underwriter in connection with the public offering and the sale of
the Bonds. The City consents to the use by the Underwriter prior to the date hereof of the
Preliminary Official Statement in connection with the public offering of the Bonds. The City shall
provide, or cause to be provided, to the Underwriter as soon as practicable after the date of the
City's acceptance of this Purchase Contract (but, in any event, not later than within seven
business days after the City's acceptance of this Purchase Contract and in sufficient time to
accompany any confirmation that requests payment from any customer) copies of the Official
Statement which are complete as of the date of their delivery to the Underwriter in such quantity
as the Underwriter shall request in order for the Underwriter to comply with Section (b)(4) of the
Rule and the rules of the Municipal Securities Rulemaking Board.
(d) If, after the date of this Purchase Contract to and including the date the
Underwriter is no longer required to provide an Official Statement to potential customers who
request the same pursuant to the Rule (the earlier of (i) 90 days from the "end of the
underwriting period" (as defined in Rule) and (ii) the time when the Official Statement is
available to any person from a nationally recognized municipal securities information repository,
but in no case less than 25 days after the "end of the underwriting period" for the Bonds), the
City becomes aware of any fact or event which might or would cause the Official Statement, as
then supplemented or amended, 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
not misleading, or if it is necessary to amend or supplement the Official Statement to comply
with law, the City will notify the Underwriter (and for the purposes of this clause provide the
Underwriter with such information as it may from time to time request), and if, in the reasonable
opinion of the Underwriter, such fact or event requires preparation and publication of a
supplement or amendment to the Official Statement, the City will forthwith prepare and furnish,
at the City's own expense (in a form and manner approved by the Underwriter), a reasonable
number of copies of either amendments or supplements to the Official Statement so that the
statements in the Official Statement as so amended and supplemented 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 not misleading or so that the Official Statement will
comply with law. If such notification shall be subsequent to the Closing, the City shall furnish
such legal opinions, certificates, instruments, and other documents as the Underwriter may
reasonably deem necessary to evidence the truth and accuracy of such supplement or
amendment to the Official Statement.
(e) The Underwriter hereby agrees to timely file the Official Statement with a
nationally recognized municipal securities information repository. Unless otherwise notified in
writing by the Underwriter, the City can assume that the "end of the underwriting period" for
purposes of the Rule is the date of the Closing.
4. Representations, Warranties, and Covenants of the City. The City hereby
represents and warrants to and covenants with the Underwriter that:
(a) The City is a home rule city duly created, organized, and existing under the laws
of the State of Texas (the "State "), and has full legal right, power, and authority, and at the date
of the Closing will have full legal right, power, and authority (i) to enter into, execute, and deliver
DAL:508213.4
this Purchase Contract, the Ordinance (which includes the Undertaking (as defined in Section
6(i)(3) hereof)) and all documents required hereunder and thereunder to be executed and
delivered by the City (this Purchase Contract, the Ordinance and the other documents referred
to in this clause (a) are hereinafter referred to as the "City Documents "), (ii) to sell, issue, and
deliver the Bonds to the Underwriter as provided herein, and (iii) to carry out and consummate
the transactions contemplated by the City Documents and the Official Statement, and the City
has complied, and will at the Closing be in compliance in all respects, with the terms of the City
Documents as they pertain to such transactions;
(b) By all necessary official action of the City prior to or concurrently with the
acceptance hereof, the City has duly authorized all necessary action to be taken by it for (i) the
adoption of the Ordinance and the issuance and sale of the Bonds, (ii) the approval, execution,
and delivery of, and the performance by the City of the obligations on its part, contained in the
Bonds and the City Documents, and (iii) the consummation by it of all other transactions
contemplated by the Official Statement and the City Documents and any and all such other
agreements and documents as may be required to be executed, delivered, and /or received by
the City in order to carry out, give effect to, and consummate the transactions contemplated
herein and in the Official Statement;
(c) The City Documents constitute legal, valid, and binding obligations of the City,
enforceable in accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium, and other similar laws and principles of equity relating to or
affecting the enforcement of creditor's rights; the Bonds, when issued, delivered, and paid for, in
accordance with the Ordinance and this Purchase Contract, will constitute legal, valid, and
binding obligations of the City entitled to the benefits of the Ordinance and enforceable in
accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium, and
other similar laws and principles of equity relating to or affecting the enforcement of creditors'
rights; upon the issuance, authentication, and delivery of the Bonds as aforesaid, the Ordinance
will provide, for the benefit of the owners of the Bonds, the legally valid and binding pledge of
and lien it purports to create as set forth in the Ordinance;
(d) The City is not in breach of or default in any material respect under any
applicable constitutional provision, law, or administrative regulation of the State or the United
States relating to the issuance of the Bonds or any applicable judgment or decree or any loan
agreement, indenture, bond, note, resolution, agreement, or other instrument to which the City
is a party or to which the City is otherwise subject, and no event which would have a material
and adverse effect upon the business or financial condition of the City has occurred and is
continuing which constitutes or with the passage of time or the giving of notice, or both, would
constitute a default or event of default by the City under any of the foregoing; and the execution
and delivery of the Bonds, the City Documents, and the adoption of the Ordinance and
compliance with the provisions contained therein on the City's part, will not conflict with or
constitute a breach of or default under any constitutional provision, administrative regulation,
judgment, decree, loan agreement, indenture, bond, note, resolution, agreement, or other
instrument to which the City is a party or to which the City is otherwise subject or under the
terms of any such law, regulation, or instrument, except as provided by the Bonds and the
Ordinance;
(e) All authorizations, approvals, licenses, permits, consents, and orders of any
governmental authority, legislative body, board, agency, or commission having jurisdiction of the
matter which are required for the due authorization of, which would constitute a condition
precedent to, or the absence of which would materially adversely affect the due performance by
4
DAL:508213.4
the City of its obligations under the City Documents and the Bonds have been duly obtained,
except for the approval of the Bonds by the Attorney General of the State of Texas and the
registration of the Bonds by the Comptroller of Public Accounts of the State of Texas and such
approvals, consents, and orders as may be required under the Blue Sky or securities laws of
any jurisdiction in connection with the offering and sale of the Bonds;
(f) The Bonds and the Ordinance conform to the descriptions thereof contained in
the Official Statement under the caption "THE BONDS;" the proceeds of the sale of the Bonds
will be applied generally as described in the Official Statement under the caption "THE BONDS
— Sources and Uses of Bond Proceeds;" and the Undertaking conforms to the description
thereof contained in the Official Statement under the caption "CONTINUING DISCLOSURE OF
INFORMATION."
(g) There is no legislation, action, suit, proceeding, inquiry, or investigation, at law or
in equity, before or by any court, government agency, public board, or body, pending or, to the
best knowledge of the City, threatened against the City, affecting the existence of the City or the
titles of its officers to their respective offices, or affecting or seeking to prohibit, restrain, or
enjoin the sale, issuance, or delivery of the Bonds or the collection of revenues pledged to the
payment of principal of and interest on the Bonds pursuant to the Ordinance or in any way
contesting or affecting the validity or enforceability of the Bonds or the City Documents, or
contesting the exclusion from gross income of interest on the Bonds for federal income tax
purposes, or contesting in any way the completeness or accuracy of the Preliminary Official
Statement or the Official Statement or any supplement or amendment thereto, or contesting the
powers of the City or any authority for the issuance of the Bonds, the adoption of the Ordinance,
or the execution and delivery of the City Documents, nor, to the best knowledge of the City, is
there any basis therefor, wherein an unfavorable decision, ruling, or finding would materially
adversely affect the validity or enforceability of the Bonds or the City Documents;
(h) As of the date thereof, the Preliminary Official Statement did 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;
(i) At the time of the City's acceptance hereof and (unless the Official Statement is
amended or supplemented pursuant to Section 3(d) of this Purchase Contract) at all times
subsequent thereto during the period up to and including the date of Closing, the Official
Statement does not and will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(j) If the Official Statement is supplemented or amended pursuant to Section 3(d) of
this Purchase Contract, at the time of each supplement or amendment thereto and (unless
subsequently again supplemented or amended pursuant to such Section 3(d)) at all times
subsequent thereto during the period up to and including the date of Closing, the Official
Statement as so supplemented or amended will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading;
(k) The City will apply, or cause to be applied, the proceeds from the sale of the
Bonds as provided in and subject to all of the terms and provisions of the Ordinance and will not
A
DAL:508213.4
take or omit to take any action which action or omission will adversely affect the exclusion from
gross income for federal income tax purposes of the interest on the Bonds;
(1) The City will furnish such information and execute such instruments and take
such action in cooperation with the Underwriter as the Underwriter may reasonably request (A)
to (i) qualify the Bonds for offer and sale under the Blue Sky or other securities laws and
regulations of such states and other jurisdictions in the United States as the Underwriter may
designate and (ii) determine the eligibility of the Bonds for investment under the laws of such
states and other jurisdictions and (B) to continue such qualifications in effect so long as required
for the distribution of the Bonds (provided, however, that the City will not be required to qualify
as a foreign corporation or to file any general or special consents to service of process under
the laws of any jurisdiction) and will advise the Underwriter immediately of receipt by the City of
any notification with respect to the suspension of the qualification of the Bonds for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose;
(m) The financial statements of and other financial information regarding the City in
the Official Statement fairly present the financial position and results of the City as of the dates
and for the periods therein set forth. Prior to the Closing, there will be no adverse change of a
material nature in such financial position, results of operations, or condition, financial or
otherwise, of the City. Other than as described in the Official Statement, the City is not a party
to any litigation or other proceeding pending or, to its knowledge, threatened which, if decided
adversely to the City, would have a materially adverse effect on the financial condition of the
City;
(n) Except for the City's Tax and Waterworks and Sewer System Surplus Revenue
Certificates of Obligation, Series 2004, prior to the Closing the City will not offer or issue any
bonds, notes, or other obligations for borrowed money or incur any material liabilities, direct or
contingent, payable from or secured by any of the revenues which will secure the Bonds without
the prior approval of the Underwriter;
(o) Any certificate signed by any official of the City authorized so to do in connection
with the transactions contemplated by this Purchase Contract shall be deemed a representation
and warranty by the City to the Underwriter as to the statements made therein; and
(p) The City covenants that between the date hereof and the Closing it will take no
actions which will cause the representations and warranties made in this Section to be untrue as
of the Closing.
By delivering an executed or conformed copy of the Official Statement to the Underwriter
as set forth in Section 6(i)(1), the City shall be deemed to have reaffirmed, with respect to the
Official Statement, the representations, warranties, and covenants set forth above with respect
to the Preliminary Official Statement.
5. Closing. (a) At 10:00 a.m. Central time, on July 22, 2004, or at such other time
and date as shall have been mutually agreed upon by the City and the Underwriter, the City will,
subject to the terms and conditions hereof, deliver to the Underwriter the initial Bonds registered
in the name of the Underwriter, in temporary form, together with the other documents
hereinafter mentioned, and will have available for immediate exchange definitive Bonds
deposited with The Depository Trust Company, New York, New York ( "DTC'), or with Wachovia
Bank, National Association, Houston, Texas, the initial paying agent/registrar for the Bonds (the
"Registraf" ), if the Bonds are to be kept in safekeeping for DTC by the Registrar pursuant to
0
DAL:508213.4
DTC's FAST System, duly executed and authenticated in the form and manner contemplated
below, and the Underwriter will, subject to the terms and conditions hereof, accept such delivery
and pay the purchase price of the Bonds, as set forth in Section 1 of this Purchase Contract, in
immediately available funds by federal funds wire transfer to or for the account of the City (such
events being referred to herein as the "Closing). Concurrently with such payment by the
Underwriter, the City shall return to the Underwriter the Check referred to in Section 1 hereof.
Payment for the Bonds as aforesaid shall be made at the offices of the Registrar, or such other
place as shall have been mutually agreed upon by the City and the Underwriter.
(b) Delivery of the Bonds in definitive form shall be made to The Depository Trust
Company, New York, New York. The Bonds shall be delivered in fully registered form, bearing
CUSIP numbers without coupons, with one security certificate for each maturity of the Bonds,
registered in the name of Cede & Co., all as provided in the Ordinance, and shall be made
available to the Underwriter at least one business day before the Closing for purposes of
inspection.
6. Closing Conditions. The Underwriter has entered into this Purchase Contract in
reliance upon the representations, warranties, and agreements of the City contained herein, and
in reliance upon the representations, warranties, and agreements 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 the Closing.
Accordingly, the Underwriter's obligations under this Purchase Contract to purchase, accept
delivery of, and pay for the Bonds shall be conditioned upon the performance by the City of its
obligations to be performed hereunder and under the City Documents at or prior to the Closing,
and shall also be subject to the following additional conditions, including the delivery by the City
of such documents as are enumerated herein, in form and substance reasonably satisfactory to
the Underwriter:
(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
the Closing, as if made on the date of the Closing;
(b) The City shall have performed and complied with all agreements and conditions
required by this Purchase Contract to be performed or complied with by it prior to or at the
Closing;
(c) At the time of the Closing, (i) the City Documents and the Bonds shall be in full
force and effect and shall not have been amended, modified, or supplemented, and the Official
Statement shall not have been supplemented or amended, except in any such case as may
have been agreed to by the Underwriter; and (ii) all actions of the City required to be taken by
the City shall be performed in order for Bond Counsel to deliver its opinions referred to
hereafter;
(d) At the time of the Closing, all official action of the City relating to the Bonds and
the City Documents shall be in full force and effect and shall not have been amended, modified,
or supplemented;
(e) At or prior to the Closing, the Ordinance shall have been duly adopted, executed,
and delivered by the City and the City shall have duly executed and delivered and the Registrar
shall have duly authenticated the Bonds;
7
DAL:508213.4
(f) At the time of the Closing, there shall not have occurred any change or any
development involving- a prospective change in the condition, financial or otherwise, or in the
revenues or operations of the City, from that set forth in the Official Statement that in the
reasonable judgment of the Underwriter, is material and adverse and that makes it, in the
reasonable judgment of the Underwriter, impracticable to market the Bonds on the terms and in
the manner contemplated in the Official Statement;
(g) The City shall not have failed to pay principal or interest when due on any of its
outstanding obligations for borrowed money;
(h) All steps to be taken and all instruments and other documents to be executed,
and all other legal matters in connection with the transactions contemplated by this Purchase
Contract shall be satisfactory in legal form and effect to the Underwriter;
(i) At or prior to the Closing, the Underwriter shall have received copies of each of
the following documents:
(1) The Official Statement, and each supplement or amendment thereto, if
any, executed on behalf of the City by the manual or facsimile signature of its Mayor or a
conformed copy thereof;
(2) The Ordinance with such supplements or amendments as may have been
agreed to by the Underwriter;
(3) The undertaking of the City (the "Undertaking ") which satisfies the
requirements of section (b)(5)(i) of the Rule;
(4) The approving opinion of Bond Counsel with respect to the Bonds, in
substantially the form attached to the Official Statement;
(5) A supplemental opinion of Bond Counsel addressed to the City and the
Underwriter substantially to the effect that:
(i) the Bonds are exempt securities that do not require registration
under the Securities Act of 1933, as amended (the "1933 Act "), and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act ") and that it is not
necessary, in connection with Bonds, to register the Bonds under the 1933 Act or
to qualify the Ordinance under the Trust Indenture Act; and
(ii) such counsel has reviewed the information contained under the
captions "THE BONDS" (except under the subcaption "Book- Entry-Only System ",
"Bondholders' Remedies" and "Sources and Uses of Bond Proceeds "),
"SELECTED PROVISIONS OF THE BOND ORDINANCE ", "TAX MATTERS"
and "CONTINUING DISCLOSURE OF INFORMATION" (except under the
subcaption "Compliance with Prior Undertakings "), and the subcaptions "Legal
Investments and Eligibility to Secure Public Funds in Texas" and "Legal Matters"
under the caption "OTHER INFORMATION" and is of the opinion that the
information relating to the Bonds and legal matters contained under such
captions and subcaptions is an accurate and fair description of the laws and legal
issues addressed therein and, with respect to the Bonds, such information
conforms to the Ordinance.
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DAL:508213.4
(6) A certificate, dated the date of Closing, of an appropriate official 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; (ii) no litigation or proceeding against it is pending or, to such
official's knowledge, threatened in any court or administrative body nor is there a basis
for litigation which would (a) contest the right of the officials of the City to hold and
exercise their respective positions, (b) contest the due organization and valid existence
of the City, (c) contest the validity, due authorization, and execution of the Bonds or the
City Documents, or (d) attempt to limit, enjoin, or otherwise restrict or prevent the City
from functioning and collecting revenues and other income or the collection of the
revenues pledged or to be pledged to pay the principal of and interest on the Bonds, or
the pledge thereof pursuant to the Ordinance; (iii) all official actions of the City
authorizing the execution, delivery, and/or performance of the Official Statement, the
Bonds, and the City Documents have been duly adopted by the City, are in full force and
effect, and have not been modified, amended, or repealed, and (iv) to the best of his or
her 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 order to make the
statements and information therein, in light of the circumstances under which made, not
misleading in any material respect as of the time of Closing, and the information
contained in the Official Statement is correct in all material respects and, as of the date
of the Official Statement did not, and as of the date of the Closing does 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 made therein, in the light of the
circumstances under which they were made, not misleading;
(7) A certificate of the City in form and substance satisfactory to Bond
Counsel and counsel to the Underwriter (a) setting forth the facts, estimates, and
circumstances in existence on the date of the Closing, which establish that 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 (the "Code "), and any applicable regulations (whether final,
temporary, or proposed), issued pursuant to the Code, and (b) certifying that to the best
of the knowledge and belief of the City there are no other facts, estimates, or
circumstances that would materially change the conclusions, representations, and
expectations contained in such certificate;
(8) Any other certificates and opinions required by the Ordinance for the
issuance thereunder of the Bonds;
(9) The approving opinion of the Attorney General of the State of Texas;
(10) The registration certificate of the Comptroller of Public Accounts of the
State of Texas;
(11) A copy of the bond insurance policy acquired by the City covering the
Bonds;
(12) Evidence satisfactory to the Underwriter that the Bonds have been
assigned the ratings of "Aaa" by Moody's Investors Service, Inc. and "AAA" by Standard
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DAL:508213.4
and Poor's Rating Services, a Division of The McGraw Hill Companies and that such
ratings are in effect as of the date of the Closing; and
(13) Such additional legal opinions, certificates, instruments, and other
documents as the Underwriter or counsel to the Underwriter may reasonably request to
evidence the truth and accuracy, as of the date hereof and as of the date of the 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 or satisfaction
by the City on or prior to the date of the Closing of all the respective agreements then to
be performed and 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 in form and substance satisfactory to the Underwriter.
If the City shall be unable to satisfy the conditions to the obligations of the Underwriter to
purchase, accept delivery of, and pay for the Bonds contained in this Purchase Contract, or if
the obligations of the Underwriter to purchase, accept delivery of, and pay for the Bonds shall
be terminated for any reason permitted by this Purchase Contract, this Purchase Contract shall
terminate and neither the Underwriter nor the City shall be under any further obligation
hereunder, except that the respective obligations of the City and the Underwriter set forth in
Section 1 hereof (with respect to the Check) shall continue in full force and effect.
7. Termination. The Underwriter shall have the right to cancel its obligation to
purchase the Bonds if, between the date of this Purchase Contract and the Closing, the market
price or marketability of the Bonds shall be materially adversely affected, in the judgment of the
Underwriter, reasonably exercised, (as evidenced by a written notice to the City terminating the
obligation of the Underwriter to accept delivery of and pay for the Bonds), by the occurrence of
any of the following:
(a) legislation shall be enacted by or introduced in the Congress of the United States
or recommended to the Congress for passage by the President of the United States, or the
Treasury Department of the United States or the Internal Revenue Service or favorably reported
for passage to either House of the Congress by any committee of such House to which such
legislation has been referred for consideration, a decision by a court of the United States or of
the State or the United States Tax Court shall be rendered, or an order, ruling, regulation (final,
temporary, or proposed), press release, statement, or other form of notice by or on behalf of the
Treasury Department of the United States, the Internal Revenue Service, or other governmental
agency shall be made or proposed, the effect of any or all of which would be to impose, directly
or indirectly, federal income taxation upon interest received on obligations of the general
character of the Bonds, or of the interest on the Bonds, or other action or events shall have
transpired which may have the purpose or effect, directly or indirectly, of changing the federal
income tax consequences of the transaction contemplated herein;
(b) legislation introduced in or enacted (or a resolution passed) by the Congress or
an order, decree, or injunction issued by any court of competent jurisdiction, or an order, ruling,
regulation (final, temporary, or proposed), press release, or other form of notice issued or made
by or on behalf of the Securities and Exchange Commission, or any other governmental agency
having jurisdiction of the subject matter, to the effect that obligations of the general character of
the Bonds, including any or all underlying arrangements, are not exempt from registration under
or other requirements of the 1933 Act, or that the Ordinance is not exempt from qualification
10
DAL:508213.4
under or other requirements of the Trust Indenture Act, or that the issuance, offering, or sale of
obligations of the general character of the Bonds, including any or all underlying arrangements,
as contemplated hereby or by the Official Statement or otherwise, is or would be in violation of
the federal securities law as amended and then in effect;
(c) any state blue sky or securities commission or other governmental agency or
body in any state where 25% or more of the Bonds have been offered and sold shall have
withheld registration, exemption, or clearance of the offering of the Bonds as described herein,
or issued a stop order or similar ruling relating thereto;
(d) a general suspension of trading in securities on the New York Stock Exchange or
the American Stock Exchange, the establishment of material restrictions (not in force as of the
date hereof) upon trading securities generally by any governmental authority, or a general
banking moratorium declared by federal, State of New York, or State officials authorized so to
do;
(e) the New York Stock Exchange or other national securities exchange or any
governmental authority shall impose, as to the Bonds or as to obligations of the general
character of the Bonds, any material restrictions not now in force, or increase materially those
now in force, with respect to the extension of credit by, or the charge to the net capital
requirements of, underwriters;
(f) any amendment to the federal or state Constitution or action by any federal or
state court, legislative body, regulatory body, or other authority materially adversely affecting the
tax status of the City, its property, income, securities (or interest thereon);
(g) any event occurring, or information becoming known which, in the reasonable
judgment of the Underwriter, makes untrue in any material respect any material statement or
information contained in the Official Statement, or has the effect that the Official Statement
contains any untrue statement of material fact or omits 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;
(h) there shall have occurred since the date of this Purchase Contract any materially
adverse change in the affairs or financial condition of the City not disclosed in the Official
Statement;
(i) the United States shall have become engaged in hostilities which have resulted
in a declaration of war or a national emergency or there shall have occurred any other outbreak
or escalation of hostilities or a national or international calamity or crisis, financial or otherwise,
the effect of such outbreak, calamity, or crisis on the financial markets of the United States
being such as, in the reasonable opinion of the Underwriter, would materially adversely affect
the ability of the Underwriter to market the Bonds;
Q) any fact or event shall exist or have existed that, in the Underwriter's judgment,
requires or has required an amendment of or supplement to the Official Statement;
(k) there shall have occurred any downgrading, or any notice shall have been given
of (i) any intended or potential downgrading or (ii) any review or possible change that does not
indicate the direction of a possible change, in the rating accorded any of the City's obligations
11
DAL:508213.4
(including the rating to be accorded the Bonds) by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act; and
(1) the purchase of and payment for the Bonds by the Underwriter, or the resale of
the Bonds by the Underwriter, on the terms and conditions herein provided shall be prohibited
by any applicable law, governmental authority, board, agency, or commission which prohibition
shall not be due to the malfeasance, misfeasance, or nonfeasance of the Underwriter.
8. Expenses. (a) The Underwriter shall be under no obligation to pay, and the City
shall pay, any expenses incident to the performance of the City's obligations hereunder,
including, but not limited to (i) the cost of preparation and printing of the Bonds; (ii) the fees and
disbursements of Bond Counsel; (iii) the fees and disbursements of the Financial Advisor to the
City; (iv) the fees and disbursements of any engineers, accountants, and other experts,
consultants, or advisers retained by the City; (v) the fees for bond ratings and bond insurance;
(vi) the costs of preparing, printing, and mailing the Preliminary Official Statement and the
Official Statement; (vi) the fees and expenses of the Registrar; (vii) advertising expenses
(except any advertising expenses of the Underwriter as set forth below); (viii) the out -of- pocket,
miscellaneous, and closing expenses, including the cost of travel, of the officers and officials of
the City; and (ix) any other expenses mutually agreed to by the City and the Underwriter to be
reasonably considered expenses of the City which are incident to the transactions contemplated
hereby.
(b) The Underwriter shall pay (i) the cost of preparation and printing of this Purchase
Contract, any Blue Sky Survey, and any Legal Investment Memorandum; (ii) all advertising
expenses in connection with the public offering of the Bonds; and (iii) all other expenses
incurred by it in connection with the public offering of the Bonds, including the fees and
disbursements of counsel retained by the Underwriter.
9. 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 to City of Euless, Texas, 201
North Ector Drive, Euless, Texas 76039, Attention: Joe Hennig, City Manager; and any notice
or other communication to be given to the Underwriter under this Purchase Contract may be
given by delivering the same in writing to Southwest Securities, 1201 Elm Street, Suite 3500,
Dallas, Texas 75270, Attention: John L. Martin.
10. Parties in Interest. This Purchase Contract as heretofore specified shall
constitute the entire agreement between us and is made solely for the benefit of the City and the
Underwriter (including successors or assigns of the Underwriter) and no other person shall
acquire or have any right hereunder or by virtue hereof. This Purchase Contract may not be
assigned by the City. All of 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; (ii) delivery of and payment for the
Bonds pursuant to this Purchase Contract; and (iii) any termination of this Purchase Contract.
11. Effectiveness. This Purchase Contract shall become effective upon the
acceptance hereof by the City and shall be valid and enforceable at the time of such
acceptance.
12. Choice of Law. This Purchase Contract shall be governed by and construed in
accordance with the laws of the State.
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DAL:508213.4
13. Severability. If any provision of this Purchase Contract shall be held or deemed
to be or shall, in fact, be invalid, inoperative, or unenforceable as applied in any particular case
in any jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provision or
provisions of any Constitution, statute, rule, or public policy, or any other reason, such
circumstances shall not have the effect of rendering the provision in question invalid,
inoperative, or unenforceable in any other case or circumstance, or of rendering any other
provision or provisions of this Purchase Contract invalid, inoperative, or unenforceable to any
extent whatever.
14. Business Day. For purposes of this Purchase Contract, "business day" means
any day on which the New York Stock Exchange is open for trading.
15. Section Headings. Section headings have been inserted in this Purchase
Contract as a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Purchase Contract and will not be used in the interpretation of
any provision. of this Purchase Contract.
16. Counterparts. This Purchase Contract may be executed in several counterparts
each of which shall be regarded as an original (with the same effect as if the signatures thereto
and hereto were upon the same document) and all of which shall constitute one and the same
document.
[The remainder of this page intentionally left blank.]
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DAL.508213.4
If you agree with the foregoing, please sign the enclosed counterpart of this Purchase
Contract and return it to the Underwriter. This Purchase Contract shall become a binding
agreement between you and the Underwriter when at least the counterpart shall have been
signed by or on behalf of each of the parties hereto.
Very truly yours,
SOUTHWEST SECURITIES
By
Authorized Officer
APPROVED AND ACCEPTED as of"the date hereof:
CITY OF EULESS, TEXAS
By:
Mayor
ATTEST:
By:
City Secretary
DAL:5082 L 3.4
EXHIBIT A
OFFICIAL STATEMENT
DAL:508213.4
Exhibit C to
Ordinance
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 45 of this Ordinance.
Annual Financial Statements and Operating Data
The financial information and operating data with respect to the City to be provided
annually in accordance with such Section are as specified (and included in the Appendix or
under the headings of the Official Statement referred to) below:
1. The financial statements of the City appended to the Official
Statement as Appendix B, but for the most recently concluded fiscal year.
2. The information contained in Tables 1 through 13 of the Official
Statement.
Accounting Principles
The accounting principles referred to in such Section are the generally accepted
accounting principles as applicable to governmental units as prescribed by The Government
Accounting Standards Board.
45464529.1