HomeMy WebLinkAbout07-99 1999-10-26 EULESS DEVELOPMENT CORPORATION
RESOLUTION NO. 0 7-9 9
A RESOLUTION authorizing the issuance of "EULESS DEVELOPMENT
CORPORATION SALES TAX REVENUE BONDS,SERIES 1999";pledging
certain "Pledged Revenues"of the Corporation, including"Gross Sales Tax
Revenues",to the payment of the principal of and interest on said Bonds and
enacting other provisions incident and related to the issuance, payment,
security and delivery of said bonds, including the approval of a Paying
Agent/Registrar Agreement and a Financing, Construction, and Use
Agreement with the City, and resolving other matters incident and related to
the issuance and sale of the Bonds.
WHEREAS, the Board of Directors of the Euless Development Corporation (the
"Corporation") hereby finds and determines that$1,000,000 in principal amount of bonds should
be issued at this time to finance the costs of a project involving park improvements at The Parks At
Texas Star, including irrigation, landscaping, and the construction of an entry way and parking
facilities (the "Project"); and
WHEREAS, a public hearing was duly held and conducted on October 18, 1999 by the
Board of Directors regarding the Corporation's intention to participate in the Project and notice of
such public hearing was published on September 23, 1999 in the Fort Worth Star-Telegram, a
newspaper of general circulation in the City of Euless, Texas; and,
WHEREAS,the Board of Directors hereby finds and determines such bonds can and should
be issued on a parity with the outstanding and unpaid "Previously Issued Bonds" (hereinafter
identified and defined), in that(i)the Treasurer of the Corporation will execute a certificate stating
that, to the best of her knowledge and belief, the Corporation is not now in default as to any
covenant, obligation or agreement contained in the resolution authorizing the issuance of the
Previously Issued Bonds, (ii)a certificate or opinion of a certified public accountant can be obtained
to the effect that, according to the books and records of the Corporation, the Gross Sales Tax
Revenues received by the Corporation during the last completed fiscal year next preceding the
adoption of this Resolution were equal to not less than (a) 1.50 times the Average Annual Debt
Service during such twelve consecutive month period with respect to the Parity Obligations now
Outstanding after giving effect to the issuance of the Bonds herein authorized to be issued,and (b)
1.35 times the maximum annual Debt Service for all Parity Obligations now Outstanding after giving
effect to the issuance of the Bonds herein authorized and (iii) the amount to be accumulated and
maintained in the Reserve Fund will be increased to the extent required by the provisions of the
resolution authorizing the issuance of the Previously Issued Bonds; and
WHEREAS,the Board of Directors has further determined and hereby finds that the Project
to be financed by the issuance of the bonds is for and on behalf of the City of Euless, Texas, and
the principal amount of the Bonds, and other obligations of the Corporation, and the principal
amount of the Previously Issued Bonds, payable in whole or in part from the"Pledged Revenues"
(hereinafter defined), together with the amount of the costs of other projects(other than such bonds
and other obligations) for which payments to be made in cash directly from such "Pledged
Revenues" do not, in the aggregate, exceed $135,000,000; now, therefore,
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BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE EULESS DEVELOPMENT
CORPORATION:
SECTION 1. Authorization - Designation - Principal Amount - Purpose. Bonds of the
Corporation shall be and are hereby authorized to be issued in the aggregate principal amount of
$1,000,000 to be designated and bear the title"EULESS DEVELOPMENT CORPORATION SALES
TAX REVENUE BONDS,SERIES 1999", hereinafter referred to as the"Bonds"to finance the costs
of a project involving park improvements at The Parks At Texas Star, including irrigation,
landscaping, and the construction of an entry way and parking facilities, in conformity with the
Constitution and laws of the State of Texas, including Vernon's Ann. Civ. Stat., Section 4B of Article
5190.6.
SECTION 2. Fully Registered Obligations - Authorized Denominations - Stated
Maturities-Date. The Bonds shall be issued as fully registered obligations,without coupon3,shall
be dated October 15, 1999 (the "Issue Date") and 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 annually on September 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:
Principal Interest
Stated Maturity Amount Rates
2000 30,000 7.00%
2001 25,000 7.00%
2002 30,000 7.00%
2003 30,000 7.00%
2004 35,000 7.00%
2005 35,000 7.00%
2006 40,000 7.00%
2007 40,000 7.00%
2008 45,000 5.25%
2009 45,000 5.25%
2010 50,000 5.25%
2013 170,000 5.50%
2016 195,000 5.65%
2019 230,000 5.85%
The Bonds shall bear interest on the unpaid principal amounts from the Issue Date at the
per annum rates shown above(calculated on the basis of a 360-day year of twelve 30-day months).
Interest on the Bonds shall be payable on March 15 and September 15 in each year, commencing
March 15, 2000.
SECTION 3. Terms of Payment-Paving Agent/Registrar. The principal of,and the interest
on the Bonds, due and payable by reason of maturity, redemption or otherwise, shall be payable
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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 The Bank of New York, New York, New York, to serve as
Paying Agent/Registrar for the Bonds is hereby approved and confirmed. Books and records
relating to the registration, payment, exchange and transfer of the Bonds (the"Security Register")
shall at all times be kept and maintained on behalf of the Corporation by the Paying Agent/Registrar,
all as provided herein, in accordance with the terms and provisions of a "Paying Agent/Registrar
Agreement", substantially in the form attached hereto as Exhibit A and such reasonable rules and
regulations as the Paying Agent/Registrar and the Corporation may prescribe. The President and
Secretary of the Corporation are hereby authorized to execute and deliver such Agreement in
connection with the delivery of the Bonds. The Corporation covenants to maintain and provide a
Paying Agent/Registrar at all times until the Bonds are paid in full and discharged. 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 Corporation
agrees to promptly cause a written notice to be sent to the Holder affected by United States Mail,
first class postage prepaid, which notice shall identify and 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 their earlier redemption, only upon presentation and surrender of the Bonds to the Paying
Agent/Registrar at its designated offices in Houston, Texas (the "Designated Payment/Transfer
Office"). Interest on the Bonds shall be paid to the Holders whose name 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 is 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 Corporation. 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
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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 maturing on and after
September 15, 2010 shall be subject to redemption prior to maturity, at the option of the
Corporation, 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 September 15, 2009 or on any
date thereafter at the redemption price of par plus accrued interest to the date of redemption.
At least forty-five (45)days prior to a date set for the redemption of Bonds(unless a shorter
notification period shall be satisfactory to the Paying Agent/Registrar), the Corporation shall notify
the Paying Agent/Registrar of its decision to exercise the right to redeem Bonds, the principal
amount of each Stated Maturity to be redeemed, and the date set for the redemption thereof. The
decision of the Corporation to exercise the right to redeem Bonds shall be entered in the minutes
of the governing body of the Corporation.
(b) Mandatory Redemption. The Bonds having Stated Maturities of September 15,
2013, September 15, 2016, and September 15,2019("Term Bonds")shall be subject to mandatory
redemption in part prior to maturity at the redemption price of par and accrued interest to the date
of redemption on the respective dates and in principal amounts as follows:
Term Bonds due September 15, 2013 Term Bonds due September 15, 2016
Redemption Date Principal Amount Redemption Date Principal Amount -
September 15, 2011 $55,000 September 15, 2014 $ 60,000
September 15, 2012 55,000 September 15, 2015 65,000
September 15, 2013 60,000 (maturity) September 15, 2016 70,000 (maturity)
Term Bonds due September 15, 2019
Redemption Date Principal Amount
September 15, 2017 $75,000
September 15, 2018 75,000
September 15, 2019 80,000 (maturity)
Approximately forty-five(45)days prior to each mandatory redemption date specified above
that the Term Bonds are to be mandatorily redeemed, the Paying Agent/Registrar shall select by
lot the numbers of the Term Bonds within the applicable Stated Maturity to be redeemed on the next
following September 15 from moneys set aside for that purpose in the Bond Fund (as hereinafter
defined). Any Term Bonds not selected for prior redemption shall be paid on the date of their Stated
Maturity.
The principal amount of the Term Bonds for a Stated Maturity required to be redeemed
pursuant to the operation of such mandatory redemption provisions may be reduced, at the option
of the Corporation, by the principal amount of Term Bonds of like Stated Maturity which, at least 50
days prior to the mandatory redemption date, (1) shall have been acquired by the Corporation at
a price not exceeding the principal amount of such Term Bonds plus accrued interest to the date
of purchase thereof, and delivered to the Paying Agent/Registrar for cancellation or(2) shall have
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been redeemed pursuant to the optional redemption provisions set forth in paragraph(a) of this
Section and not theretofore credited against a mandatory redemption requirement.
(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 Bond by $5,000 and shall select the Bonds, or principal amount thereof,
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 Corporation and at the Corporation'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
Resolution. 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 Designated
Payment/Transfer Office of 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 a Bond at the Designated Payment/Transfer Office of the
Paying Agent/Registrar, one or more new certificates evidencing the Bonds, in authorized
denominations, of like Stated Maturity and of a like aggregate principal amount as the Bond or
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Bonds surrender for transfer shall be registered and issued to the assignee or transferee of the
previous Holders.
At the option of the Holder, Bonds 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 printed certificates evidencing the Bonds, executed on behalf of, and furnished by, the
Corporation, 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 Corporation, evidencing the same obligation to pay, and entitled to the same
benefits under this Resolution, 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 canceled 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 26 hereof and such new replacement Bond shall be deemed to
evidence the same obligation as the mutilated, lost, destroyed, or stolen Bond.
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 Corporation 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 Corporation 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.
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
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general or the Corporation determines that DTC is incapable of properly discharging its duties as
securities depository for the Bonds, the Corporation 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
Corporation by its President under its seal reproduced or impressed thereon and attested by the
Secretary of the Corporation. 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 Corporation on the Issue Date shall be deemed to be duly executed on behalf
of the Corporation, 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 purchasers and with respect to Bonds
delivered in subsequent exchanges and transfers.
No Bond shall be entitled to any right or benefit under this Resolution, 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(sl. The Bonds herein authorized shall be initially issued either
(i) as a single fully registered bond in the total principal amount noted in Section 1 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 (to be printed on the Initial Bond(s)only), the
Certificate of Registration, and the form of Assignment to be printed on each of the Bonds, shall be
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substantially in the forms set forth in this Section with such appropriate insertions, omissions,
substitutions, and other variations as are permitted or required by this Resolution and may have
such letters, numbers, or other marks of identification (including identifying numbers and letters of
the Committee on Uniform Securities Identification Procedures of the American Bankers
Association)and such legends and endorsements (including insurance legends on insured Bonds
and any reproduction of an opinion of counsel) thereon as may, consistently herewith, be
established by the Board of Directors of the Corporation or determined by the officers executing
such Bonds as evidenced by the 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 Bonds, including the Initial Bond(s), shall be typewritten, printed, lithographed, or
engraved or produced in any other similar manner,all as determined by the officers executing such
Bonds as evidenced by their execution thereof.
B. Form of Bond.
REGISTERED REGISTERED
NO. $
UNITED STATES OF AMERICA
STATE OF TEXAS
EULESS DEVELOPMENT CORPORATION
SALES TAX REVENUE BOND, SERIES 1999
Issue Date: Interest Rate: Stated Maturity: CUSIP NO:
October 15, 1999
Registered Owner:
Principal Amount: DOLLARS
The Euless Development Corporation (hereinafter referred to as the "Corporation"), a
non-profit industrial development corporation organized and existing under the laws of the State of
Texas, including Section 4B of Article 5190.6,Tex. Rev.Civ. St.Ann., as amended,(the"Act"),with
its principal office located in Tarrant County, 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 and sources pledged under the Resolution identified below, the Principal Amount stated
above (or so much thereof as shall not have been paid upon prior redemption) on the Stated
Maturity date specified above 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 Issue Date at the per annum
rate of interest specified above;such interest being payable on March 15 and September 15 of each
year, commencing March 15, 2000. Principal of this Bond is payable at its Stated Maturity or
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redemption to the registered owner hereof, upon presentation and surrender, at the Designated
Payment/Transfer Office of the Paying Agent/Registrar executing the registration certificate
appearing hereon, or its successor. Interest is payable to the registered owner of this Bond (or one
or more Predecessor Bonds, as defined in the resolution hereinafter referenced) whose name
appears on the "Security Register" maintained by the Paying Agent/Registrar at the close of
business on the "Record Date", which is the last business day of the month next preceding each
interest payment date and interest shall be paid by the Paying Agent/Registrar by check sent United
States Mail, first class postage prepaid, to the address of the registered owner recorded in the
Security Register or by such other method, acceptable to the Paying Agent/Registrar, requested
by, and at the risk and expense of, the registered owner. All payments of principal of, premium, if
any, and interest on this Bond shall be without exchange or collection charges to the owner hereof
and in any coin or currency of the United States of America which at the time of payment is legal
tender for the payment of public and private debts.
This Bond is one of the series specified in its title issued in the aggregate principal amount
of $1,000,000 (herein referred to as the "Bonds") to finance the costs of a project involving park
improvements at The Parks At Texas Star, including irrigation, landscaping, and the construction
of an entry way and parking facilities, in conformity with the Constitution and laws of the State of
Texas, including the Act, and pursuant to a Resolution adopted by the governing body of the
Corporation (herein referred to as the"Resolution").
The Bonds maturing on 'dates hereinafter identified (the "Term Bonds") are subject to
mandatory redemption prior to maturity with funds on deposit in the Bond Fund established and
maintained for the payment thereof in the Resolution,and shall be redeemed in part prior to maturity
at the price of par and accrued interest thereon to the date of redemption, and without premium.
The Term Bonds maturing on September 15, 2013 are subject to mandatory redemption on
September 15, 2011 and September 15, 2012 in the amount set forth in the Resolution. The Term
Bonds maturing on September 15, 2016 are subject to mandatory redemption on September 15,
2014 and September 15,2015 in the amount set forth in the Resolution. The Term Bonds maturing
on September 15, 2019 are subject to mandatory redemption on September 15, 2017 and
September 15, 2018 in the amount set forth in the Resolution. The particular Term Bonds to be
redeemed on each redemption date shall be chosen by lot by the Paying Agent/Registrar; provided,
however, that the principal amount of Term Bonds for a Stated Maturity required to be redeemed
pursuant to the operation of such mandatory redemption provisions shall be reduced,at the option
of the Corporation, by the principal amount of Term Bonds of like maturity which, at least 50 days
prior to a mandatory redemption date, (1) shall have been acquired by the Corporation at a price
not exceeding the principal amount of such Term Bonds plus accrued interest to the date of
purchase thereof, and delivered to the Paying Agent/Registrar for cancellation or (2) shall have
been redeemed pursuant to the optional redemption provisions appearing below and not theretofore
credited against a mandatory redemption requirement.
The Bonds maturing on and after September 15, 2010 may be redeemed prior to their
Stated Maturities,at the option of the Corporation, 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 September 15, 2009 or on any date thereafter at the redemption price of par plus accrued
interest thereon to the redemption date.
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At least thirty days prior to the date fixed for any redemption of Bonds,the Corporation 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
Resolution. If this Bond (or any portion of the principal sum hereof)shall have been duly called for
redemption and notice of such redemption duly given, then upon such redemption date this Bond
(or the portion of the principal sum hereof to be redeemed) shall become due and payable, and, if
moneys for the payment of the redemption price and the interest accrued 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, interest shall cease to accrue and be payable from and after the redemption date
on the principal amount hereof redeemed.
In the event of a partial redemption of the principal amount of this Bond, payment of the
redemption price of such principal amount shall be made to the registered owner only upon
presentation and surrender of this Bond to the Designated Payment/Transfer Office of the Paying
Agent/Registrar, and there shall be issued to the registered owner hereof, without charge, a new
Bond or Bonds of like maturity and interest rate in any authorized denominations provided in the
Resolution for the then unredeemed balance of the principal sum hereof. If this Bond is called for
redemption, in whole or in part, the Corporation and the Paying Agent/Registrar shall not be
required to transfer this Bond to an assignee of the Holder within 45 days of the redemption date
therefor;provided,however,such limitation on transferability shall not be applicable to an exchange
by the Holder of the unredeemed balance hereof in the event of its redemption in part.
The Bonds are payable solely from and, together with the Previously Issued Bonds
(identified and defined in the Resolution), equally and ratably secured by a pledge of the"Pledged
Revenues" (as defined in the Resolution) received by the Corporation, including the receipts from
a Sales Tax levied for the benefit of the Corporation pursuant to the Act and an election held in the
City. The Bonds do not constitute a legal or equitable, pledge, charge, lien or encumbrance upon
any property of the Corporation or the City of Euless, Texas (the"City")except with respect to the
"Pledged Revenues". This Bond may not be paid in whole or in part from any property taxes raised
or to be raised by the City and is not a debt of and does not give rise to a claim for payment against
the City, except as to the sales and use tax revenues held by the City and required under the Act
to be paid over to the Corporation. Neither the State of Texas, the City or any political corporation,
subdivision or agency of the State of Texas shall be obligated to pay this Bond or the interest
hereon and neither the faith and credit nor the taxing power of the State, the City or any other
political corporation, subdivision or agency thereof is pledged to the payment of the principal of and
interest on this Bond except as noted above.
Subject to satisfying the terms and conditions prescribed therefor, the Corporation has
reserved the right to issue additional revenue obligations payable, in whole or in part, from the
"Pledged Revenues" and equally and ratably secured in like manner and effect as the Bonds.
Reference is hereby made to the Resolution, 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 payment of the Bonds; the rights of Holders of the Bonds
the terms and conditions for the issuance of additional obligations;the terms and conditions relating
10
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to the payment, transfer or exchange of this Bond; the conditions upon which the Resolution may
be amended or supplemented with or without the consent of the Holders; the rights, duties, and
obligations of the Corporation and the Paying Agent/Registrar;the terms and provisions upon which
the encumbrances, pledges, charges and covenants made therein may be discharged; and for the
other terms and provisions contained therein. Capitalized terms used herein have the same
meanings assigned in the Resolution.
This Bond, subject to certain limitations contained in the Resolution, 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 Corporation 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 Corporation 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 Corporation. 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.
It is hereby certified,recited,represented and covenanted that the Corporation is a non-profit
industrial development corporation duly organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas, including the Act; 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 special obligations of the Corporation have been properly done,have happened and
have been performed in regular and due time, form and manner as required by law; and that due
provision has been made for the payment of the principal of and interest on the Bonds from the
sources and in the manner provided in the Resolution. 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 Resolution shall be construed in accordance with and
shall be governed by the laws of the State of Texas.
803719 11
IN WITNESS WHEREOF, the Board of Directors of the Corporation has caused this Bond
to be duly executed under the official seal of the Corporation as of the Issue Date.
EULESS DEVELOPMENT CORPORATION
ATTEST: President
Secretary
(SEAL)
C. *Form of Registration Certificate of Comptroller of Public Accounts to Appear on Initial
Bonds only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER )
) REGISTER NO.
OF PUBLIC ACCOUNTS )
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
(SEAL) of the State of Texas
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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 Resolution and duly approved, or a
Predecessor Bond hereof duly 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 located in Houston, Texas, is the
"Designated Payment/Transfer Office" for this Bond.
THE BANK OF NEW YORK, NEW 'CORK,
NEW YORK,
as Paying Agent/Registrar
Registration date:
By
Authorized Signature
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: ) t h e
within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
NOTICE: The signature on this assignment must
Signature guaranteed: correspond with the name of the registered owner
as it appears on the face of the within Bond in every
particular.
803719 13
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 " and
"Stated Maturity " shall both be omitted;"
(ii) Paragraph one shall read as follows:
The Euless Development Corporation (hereinafter referred to as the"Corporation"),a non-
profit industrial development corporation organized and existing under the laws of the State of
Texas, including Section 4B of Article 5190.6,Tex. Rev. Civ. St.Ann.,as amended, (the"Act"),with
its principal office located in Tarrant County, 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 and sources pledged under the Resolution identified below, the Principal Amount
hereinabove stated on September 15 in each of the years and in principal amounts and bearing
interest at per annum rates 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 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 Issue Date at the per annum rate of interest specified above; such interest being
payable on March 15 and September 15 of each year, commencing March 15, 2000. Principal
installments of this Bond are payable at its Stated Maturity or on a prepayment date to the
registered owner hereof by The Bank of New York, New York, New York (the "Paying
Agent/Registrar"), upon its presentation and surrender, at its designated offices in Houston,Texas
(the"Designated Payment/Transfer Office"). Interest is payable to the registered owner of this Bond
(or one or more Predecessor Bonds, as defined in the resolution hereinafter referenced) whose
name appears on the"Security Register" maintained by the Paying Agent/Registrar at the close of
business on the "Record Date", which is the last business day of the month next preceding each
interest payment date and interest shall be paid by the Paying Agent/Registrar by check sent United
States Mail, first class postage prepaid, to the address of the registered owner recorded in the
Security Register or by such other method, acceptable to the Paying Agent/Registrar, requested
by, and at the risk and expense of, the registered owner. All payments of principal of, premium, if
any, and interest on this Bond shall be without exchange or collection charges to the owner hereof
and in any coin or currency of the United States of America which at the time of payment is legal
tender for the payment of public and private debts.
SECTION 10. Definitions. For all purposes of this Resolution 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:
"Act"-The Development Corporation Act of 1979,Vemon's Ann.Civ.St.,Art.
5190.6, as amended at any time.
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"Additional Obligations"- Bonds, notes or other evidences of indebtedness
which the Corporation reserves the right to issue or enter into, as the case may be,
in the future in accordance with the terms and conditions provided in Section 18
hereof and which, together with the Bonds, are equally and ratably secured by a
parity pledge of and claim on the Pledged Revenues under the terms of this
Resolution and a Supplemental Resolution.
"Average Annual Debt Service" - That amount which, at the time of
computation, is derived by dividing the total amount of Debt Service to be paid over
a period of years as the same is scheduled to become due and payable by the
number of years taken into account in determining the total Debt Service.
Capitalized interest payments provided from proceeds or borrowings of the
Corporation shall be excluded in making the aforementioned computation.
"Board" - The Board of Directors of the Corporation.
"Bonds"-The"Euless Development Corporation Sales Tax Revenue Bonds,
Series 1999", dated October 15, 1999, authorized by this Resolution.
"City"- The City of Euless, Texas.
"Corporation"-The Euless Development Corporation,a non-profit industrial
development corporation organized and existing under and pursuant to the laws of
the State of Texas, including Section 4B of the Act and on behalf of the City of
Euless, Texas.
"Debt Service"-As of any particular date of computation,with respect to any
obligations and with respect to any period, the aggregate of the amounts to be paid
or set aside by the Corporation as of such date or in such period for the payment of
the principal of, premium, if any, and interest(to the extent not capitalized)on such
obligations;assuming, in the case of obligations without a fixed numerical rate, that
such obligations bear, or would have borne, interest at the maximum legal per
annum rate applicable to such obligations, and further assuming in the case of
obligations required to be redeemed or prepaid as to principal prior to maturity, the
principal amounts thereof will be redeemed prior to maturity in accordance with the
mandatory redemption provisions applicable thereto.
"Depository" - A commercial bank or other qualified financial institution
eligible and qualified to serve as the custodian of the Corporation's monetary
accounts and funds.
"Fiscal Year" - The twelve month financial accounting period used by the
Corporation ending September 30 in each year, or such other twelve consecutive
month period established by the Corporation.
"Government Obligations" - Direct obligations of the United States of
America, including obligations the principal of and interest on which are fully and
unconditionally guaranteed by the United States of America.
803719 15
"Gross Sales Tax Revenues"-All of the revenues or receipts due or owing
to, or collected or received by or on behalf of the Corporation by the City or
otherwise pursuant to Section 4B of the Act and the election held January 16, 1993,
less any amounts due and owed to the Comptroller of Public Accounts of the State
of Texas as charges for the collection of the Sales Tax or retention by said
Comptroller for refunds and to redeem dishonored checks and drafts, to the extent
such charges and retention are authorized or required by law.
"Outstanding"-When used in this Resolution with respect to Bonds or Parity
Obligations, as the case may be, means, as of the date of determination,all Bonds
and Parity Obligations theretofore sold, issued and delivered by the Corporation,
except:
(1) those Bonds or Parity Obligations canceled or delivered to the
transfer agent or registrar for cancellation in connection with the exchange or
transfer of such obligations;
(2) those Bonds or Parity Obligations paid or deemed to be paid in
accordance with the provisions of Section 24 hereof or similar provisions of any
Supplemental Resolution authorizing the issuance of Additional Obligations.
(3) those Bonds or Parity Obligations that have been mutilated,
destroyed, lost, or stolen and replacement obligations have been registered and
delivered in lieu thereof.
"Parity Obligations" - Collectively, the Previously Issued Bonds, the Bonds
and Additional Obligations.
"Pledged Revenues" - Collectively (i) Gross Sales Tax Revenues from
time to time deposited or owing to the Pledged Revenue Fund and (ii) such other
money, income, revenue, receipts or other property as may be specifically
dedicated, pledged or otherwise encumbered in a Supplemental Resolution for the
payment and security of Parity Obligations.
"Previously Issued Bonds" - the outstanding (i) "Euless Development
Corporation Sales Tax Revenue Bonds, Series 1994", dated August 1, 1994, and
issued in the original aggregate principal amount of $8,855,000 and (ii) "Euless
Development Corporation Sales Tax Revenue Bonds, Series 1996", dated August
15, 1996, and issued in the original aggregate principal amount of$1,485,000
"Required Reserve" - The amount required to be accumulated and
maintained in the Reserve Fund under the provisions of Section 14 hereof.
"Sales Tax"-The local sales and use tax authorized under Section 4B of the
Act, approved at an election held on January 16, 1993,and the effective date for the
imposition and application of such Sales Tax within the corporate limits of the City
by the Comptroller of Public Accounts of the State of Texas being July 1, 1993,
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together with any increases in the rate of such Sales Tax authorized and provided
by law.
"Supplemental Resolution"-Any resolution of the Board supplementing this
Resolution for the purpose of authorizing and providing the terms and provisions of
the Bonds or Additional Obligations, or supplementing or amending this Resolution
for any other authorized purpose permitted in Section 18 or 25 hereof, including
resolutions authorizing the issuance of Additional Obligations or pledging and
encumbering income,revenues,receipts or property other than the Gross Sales Tax
Revenues to the payment and security of the Panty Obligations.
SECTION 11. Pledge. The Corporation hereby covenants and agrees that the Pledged
Revenues, with the exception of those in excess of the amounts required for the payment and
security of the Parity Obligations,are hereby irrevocably pledged to the payment and security of the
Previously Issued Bonds, the Bonds and Additional Obligations, if issued, including the
establishment and maintenance of the special funds created and established in this Resolution and
any Supplemental Resolution, all as hereinafter provided. The Corporation hereby resolves the
Parity Obligations shall constitute a lien on the Pledged Revenues in accordance with the terms of
this Resolution and any Supplemental Resolution,which lien shall be valid and binding without any
further action by the Corporation and without any filing or recording with respect thereto except in
the records of the Corporation.
SECTION 12. Pledged Revenue Fund. The Corporation hereby agrees and covenants to
establish and maintain a fund or account at a Depository for the deposit of the Pledged Revenues
as received by the Corporation, which fund or account shall be known on the books and records
of the Corporation as the"Pledged Revenue Fund". All Pledged Revenues deposited to the credit
of such Fund shall be accounted for separate and apart from all other revenues, receipts and
income of the Corporation and, with respect to the Gross Sales Tax Revenues, the Corporation
shall further account for such funds separate and apart from the other Pledged Revenues deposited
to the credit of the Pledged Revenue Fund. All Pledged Revenues deposited to the credit of the
Pledged Revenue Fund shall be appropriated and expended to the extent required by this
Resolution and any Supplemental Resolution for the following uses and in the order of priority
shown:
First: To the payment of the amounts required to be deposited in the Bond
Fund for the payment of Debt Service on the Parity Obligations as the same
becomes due and payable;
Second: To the payment of the amounts required to be deposited in the
Reserve Fund to establish and maintain the Required Reserve in accordance with
the provisions of the resolutions authorizing the issuance of the Previously Issued
Bonds, this Resolution, and any Supplemental Resolution;
Third: To the payment of amounts required to be deposited in any other fund
or account required by any Supplemental Resolution authorizing the issuance of
Parity Obligations; and
803719 17
Fourth: To any fund or account held at any place or places,or to any payee,
required by any other resolution of the Board which authorized the issuance of
obligations or the creation of debt of the Corporation having a lien on the Pledged
Revenues subordinate to the lien created herein on behalf of the Parity Obligations.
Any Pledged Revenues remaining in the Pledged Revenue Fund after satisfying the
foregoing payments, or making adequate and sufficient provision for the payment thereof, may be
appropriated and used for any other lawful purpose now or hereafter permitted by law.
SECTION 13. Bond Fund. For the purpose of providing funds to pay the principal of and
interest on Parity Obligations, the Corporation agrees and covenants to maintain a separate and
special account or fund on the books and records of the Corporation known as the "Euless
Development Corporation Debt Service Account" (the "Bond Fund"), and all monies deposited to
the credit of such Fund shall be held in a special banking fund or account maintained at a
Depository of the Corporation. In addition to the amounts required to be deposited to the credit of
such Fund for the payment of the Previously Issued Bonds,the Corporation covenants there shall
be deposited into the Bond Fund prior to each principal and interest payment date from the Pledged
Revenues an amount equal to one hundred per centum (100%)of the interest on and the principal
of the Bonds then falling due and payable, and such deposits to pay principal and accrued interest
on the Bonds shall be made in substantially equal monthly installments on or before the 20th day
of each month, beginning on or before the 20th day of the month next following the delivery of the
Bonds to the initial purchasers.
The required 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 (i) the total amount on deposit in
the Bond Fund and Reserve Fund is equal to the amount required to fully pay and discharge all
Parity Obligations (principal and interest) then Outstanding or (ii) the Bonds are no longer
Outstanding.
SECTION 14. Reserve Fund. The Corporation agrees and covenants to maintain on the
books and records of the Corporation a separate and special fund or account to be known as the
"Reserve Account" (the "Reserve Fund"), which fund or account shall be a special banking fund
maintained at a Depository. All Pledged Revenues deposited to the credit of such fund or account
shall be used solely for the payment of the principal of and interest on the Parity Obligations when
(whether at maturity, upon a redemption date or any interest payment date) other funds available
for such purposes are insufficient, and, in addition, may be used to the extent not required to
maintain the "Required Reserve", to pay, or provide for the payment of, the final principal amount
of a series of Parity Obligations so that such series of Parity Obligations is no longer deemed to be
"Outstanding" as such term is defined herein.
In accordance with the provisions of the resolution authorizing the issuance of the
Previously Issued Bonds, there is currently on deposit to the credit of the Reserve Fund the sum
of $ (the "Current Reserve"). By reason of the issuance of the Bonds, the total
amount required to be accumulated and maintained in the Reserve Fund is hereby determined to
be $ (the "Required Reserve) and the Corporation agrees that beginning on or
before the 20th day of the month next following the month the Bonds are delivered to the initial
purchasers and on or before the 20th day of each following month until the Required Reserve has
been fully accumulated,there shall be deposited into the Reserve Fund from the Pledged Revenues
803719 18
an amount equal to at least 1/36th of the difference between the Required Reserve and the Current
Reserve.
As and when Additional Obligations are delivered or incurred, the Required Reserve shall
be increased, if required, to an amount equal to the lesser of either (i) the maximum annual Debt
Service (calculated on a Fiscal Year basis)for all Parity Obligations then Outstanding (after giving
effect to the issuance of the Additional Obligations), as determined on the date each series of
Additional Obligations are delivered or incurred, as the case may be, or(ii) the maximum amount
that can be invested without restriction as to yield in a reasonably required reserve fund pursuant
to Subsection (d) of Section 148 of the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder. Any additional amount required to be accumulated and
maintained in the Reserve Fund shall be accumulated by the deposit to the credit of the Reserve
Fund of all or any part in cash immediately after the delivery of the then proposed Additional
Obligations, or, at the option of the Corporation, by the deposit of monthly installments, made on
or before the 20th day of each month following the month of delivery of the then proposed Additional
Obligations, of not less than 1/36th of the additional amount to be maintained in said Fund by
reason of the issuance of the Additional Obligations then being issued (or 1/36th of the balance of
the additional amount not deposited immediately in cash).
While the cash and investments in the Reserve Fund total not less than the Required
Reserve, no deposits need be made to the credit of the Reserve Fund;but,if and when the Reserve
Fund at any time contains less than the Required Reserve,the Corporation covenants and agrees
to cure the deficiency in the Required Reserve by resuming monthly deposits to said Fund from the
Pledged Revenues; such monthly deposits to be in amounts equal to not less than 1/36th of the
then total Required Reserve to be maintained in said Fund and to be made on or before the 20th
day of each month until the total Required Reserve then required to be maintained in said Fund has
been fully restored. The Corporation further covenants and agrees that the Pledged Revenues shall
be applied and appropriated and used to establish and maintain the Required Reserve and to cure
any deficiency in such amounts as required by the terms of this Resolution and any Supplemental
Resolution.
During such time as the Reserve Fund contains the total Required Reserve,the Corporation
may, at its option,withdraw all surplus in the Reserve Fund in excess of the Required Reserve and
deposit such surplus in the Bond Fund.
SECTION 15. Deficiencies. If on any occasion there shall not be sufficient Pledged
Revenues to make the required deposits into the Bond Fund or Reserve Fund,such deficiency shall
be cured as soon as possible from the next available Pledged Revenues,or from any other sources
available for such purpose.
SECTION 16. Payment of Bonds. While any of the Bonds are Outstanding,the Treasurer
of the Corporation (or other designated financial officer of the Corporation) shall cause to be
transferred to the Paying Agent/Registrar, from funds on deposit in the Bond Fund, and, if
necessary, in the Reserve Fund, amounts sufficient to fully pay and discharge promptly as each
installment of interest and principal of the Bonds accrues or matures; 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.
803719 19
SECTION 17. Investments - Security of Funds. Money in any Fund required to be
maintained pursuant to this Resolution may, at the option of the Corporation, be invested in
obligations and in the manner prescribed by the Public Funds Investment Act of 1987 (V.T.C.A.,
Government Code, Chapter 2256), including investments held in book-entry form; provided that all
such deposits and investments shall be made in such a manner that the money required to be
expended from any Fund will be available at the proper time or times and provided further the
maximum stated maturity for any investment acquired with money deposited to the credit of the
Reserve Fund shall be limited to five(5)years from the date of the investment of such money. Such
investments shall be valued in terms of current market value within 45 days of the close of each
Fiscal Year and, with respect to investments held for the account of the Reserve Fund, within
45 days of the date of passage of each authorizing document of the Board pertaining to the
issuance of Additional Obligations. All interest and income derived from deposits and investments
in the Bond Fund immediately shall be credited to, and any losses debited to, the appropriate
account of the Bond Fund. All interest and interest income derived from deposits in and
investments of the Reserve Fund shall, subject to the limitations provided in Section 14 hereof, be
credited to and deposited in the Pledged Revenue Fund. All such investments shall be sold
promptly when necessary to prevent any default in connection with the Parity Obligations.
That money deposited to the credit of the Pledged Revenue Fund, Bond Fund and Reserve
Fund, to the extent not invested and not otherwise insured by the Federal Deposit Insurance
Corporation or similar agency,shall be secured by a pledge of direct obligations of the United States
of America, or obligations unconditionally guaranteed by the United States of America.
SECTION 18. Issuance of Additional Parity Obligations. Subject to the provisions
hereinafter appearing as to conditions precedent which must be satisfied,the Corporation reserves
the right to issue,from time to time as needed,Additional Obligations for any lawful purpose. Such
Additional Obligations may be issued in such form and manner as the Corporation shall determine,
provided,however, prior to issuing or incurring such Additional Obligations,the following conditions
precedent for the authorization and issuance of the same are satisfied, to wit:
(i) The Treasurer of the Corporation (or other officer of the Corporation then having the
primary responsibility for the financial affairs of the Corporation) shall have executed a certificate
stating that, to the best of his or her knowledge and belief, the Corporation is not then in default as
to any covenant,obligation or agreement contained in the Resolution or a Supplemental Resolution.
(ii)The Corporation has secured from a certified public accountant a certificate or opinion
to the effect that, according to the books and records of the Corporation, the Gross Sales Tax
Revenues received by the Corporation for either(i)the last completed Fiscal Year next preceding
the adoption of the Supplemental Resolution authorizing the issuance of the proposed Additional
Obligations or(ii)any twelve(12)consecutive months out of the previous eighteen(18)months next
preceding the adoption of the Supplemental Resolution authorizing the Additional Obligations were
equal to not less than(i) 1.50 times the Average Annual Debt Service for all Parity Obligations then
Outstanding after giving effect to the issuance of the Additional Obligations then being issued and
(ii) 1.35 times the maximum annual Debt Service for all Parity Obligations then Outstanding after
giving effect to the issuance of the Additional Obligations then being issued. Additionally, for the
purpose of providing this certificate or opinion, if the Corporation shall not have received Gross
Sales Tax Revenues for a full 12 month period, one-half of the amount of sales tax revenues
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actually received by the City under Chapter 321, TEX.TAX CODE, may be used for the months
during which the Corporation did not receive Gross Sales Tax Revenues.
(iii) The Required Reserve to be accumulated and maintained in the Reserve Fund is
increased to the extent required by Section 14.
SECTION 19. Refunding Bonds. The Corporation reserves the right to issue refunding
bonds to refund all or any part of the Parity Obligations (pursuant to any law then available) upon
such terms and conditions as the Board may deem to be in the best interest of the Corporation,and
if less than all such Parity Obligations then Outstanding are refunded, the conditions precedent
prescribed (for the issuance of Additional Obligations) set forth in Section 18 hereof shall be
satisfied, and shall give effect to the refunding.
SECTION 20. Right to Create Subordinate Debt Except as may be limited by a
Supplemental Resolution, the Corporation shall have the right to issue or create any debt payable
from or secured by a lien on all or any part of the Pledged Revenues for any lawful purpose without
complying with the provisions of Section 18 or 19 hereof, provided the pledge and the lien securing
such debt is subordinate to the pledge and lien established, made and created in Section 11 of this
Resolution with respect to the Pledged Revenues to the payment and security of the Parity
Obligations.
SECTION 21. Confirmation and Levy of Sales Tax. (a)The Board hereby represents the
City has duly complied with the provisions of the Act for the levy of the Sales Tax at the rate voted
at the election held by and within the City on January 16, 1993, and such Sales Tax is being
imposed within the corporate limits of the City and the receipts of such Sales Tax are being remitted
to the City by the Comptroller of Public Accounts on a monthly basis.
(b) While any Bonds are Outstanding,the Corporation covenants,agrees and warrants
to take and pursue all action permissible to cause the Sales Tax, at said rate or at a higher rate if
legally permitted,to be levied and collected continuously,in the manner and to the maximum extent
permitted by law,and to cause no reduction,abatement or exemption in the Sales Tax or rate of tax
below the rate stated, confirmed and ordered in subsection (a) of this Section to be ordered or
permitted while any Bonds shall remain Outstanding.
(c) If hereafter authorized by law to apply,impose and levy the Sales Tax on any taxable
items or transactions that are not subject to the Sales Tax on the date of the adoption hereof,to the
extent it legally may do so, the Corporation agrees to use its best efforts to cause the City to take
such action as may be required to subject such taxable items or transactions to the Sales Tax.
(d) The Corporation agrees to take and pursue all action legally permissible to cause
the Sales Tax to be collected and remitted and deposited as herein required and as required by
Section 4B of the Act, at the earliest and most frequent times permitted by law.
(e) The Corporation agrees to use its best efforts to cause the City to comply with
Section 4B of the Act and shall cause the Gross Sales Tax Revenues to be deposited to the credit
of the Pledged Revenue Fund in their entirety immediately upon receipt by the City. In the
alternative and if legally authorized, the Corporation shall, by appropriate notice,direction, request
or other legal method, use its good-faith efforts to cause the Comptroller of Public Accounts of the
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•
State of Texas (the"Comptroller")to pay all Gross Sales Tax Revenues directly to the Corporation
for deposit to the Pledged Revenue Fund.
SECTION 22. Records and Accounts. The Corporation hereby covenants and agrees that
while any of the Bonds are Outstanding, it will keep and maintain complete records and accounts
in accordance with generally accepted accounting principles, and 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. Each such audit, in addition to whatever other matters may be thought
proper by the accountant, shall particularly include the following:
(i) A statement in reasonable detail regarding the receipt and disbursement of the Pledged
Revenues for such Fiscal Year; and
(ii)A balance sheet for the Corporation as of the end of such Fiscal Year.
Such annual audit of the records and accounts of the Corporation shall be in the form of a
report and be accompanied by an opinion of the accountant to the effect that such examination was
made in accordance with generally accepted auditing standards and contain a statement to the
effect that in the course of making the examination necessary for the report and opinion, the
accountant obtained no knowledge of any default of the Corporation on the Bonds or in the
fulfillment of any of the terms, covenants or provisions of this Resolution, or under any other
evidence of indebtedness, or of any event which, with notice or lapse of time, or both, would
constitute a failure of the Corporation to comply with the provisions of this Resolution or if, in the
opinion of the accountants, any such failure to comply with a covenant or agreement hereof, a
statement as to the nature and status thereof shall be included.
Copies of each annual audit report shall be furnished upon written request, to any Holders
of any of said Bonds. The audits herein required shall be made within 120 days following the close
of each Fiscal Year insofar as is possible.
The Holders of any Bonds or any duly authorized agent or agents of such Holders shall have
the right to inspect such records, accounts and data of the Corporation during regular business
hours.
SECTION 23. Representations as to Security for the Bonds (a)The Corporation represents
and warrants that, except for the Panty Obligations, the Pledged Revenues are and will be and
remain free and clear of any pledge, lien, charge or encumbrance thereon or with respect thereto
prior to,or of equal rank with,the pledge and lien created in or authorized by this Resolution except
as expressly provided herein.
(b) The Bonds and the provisions of this Resolution are and will be the valid and legally
enforceable obligations of the Corporation in accordance with their terms and the terms of this
Resolution, subject only to any applicable bankruptcy or insolvency laws or to any laws affecting
creditors rights generally.
(c) The Corporation shall at all times, to the extent permitted by law, defend, preserve
and protect the pledge of the Pledged Revenues and all the rights of the Holders against all claims
and demands of all persons whomsoever.
803719 22
(d) The Corporation will take, and use its best efforts to cause the City to take, all steps
reasonably necessary and appropriate to collect all delinquencies in the collection of the Sales Tax
to the fullest extent permitted by the Act.
(e) The provisions, covenants, pledge and lien on and against the Pledged Revenues,
as herein set forth, are established and shall be for the equal benefit, protection and security of the
owners and holders of Parity Obligations without distinction as to priority and rights under this
Resolution.
(f) The Parity Obligations shall constitute special obligations of the Corporation,payable
solely from, and equally and ratably secured by a parity pledge of and lien on, the Pledged
Revenues, and not from any other revenues, properties or income of the Corporation. The Bonds
may not be paid in whole or in part from any property taxes raised or to be raised by the City and
shall not constitute debts or obligations of the State or of the City,and the Holders,shall never have
the right to demand payment out of any funds raised or to be raised by any system of ad valorem
taxation.
SECTION 24. Satisfaction of Obligation of Corporation. If the Corporation 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 Resolution, then the
pledge of the Pledged Revenues under this Resolution and all other obligations of the Corporation
to the Holders shall thereupon cease, terminate, and be discharged and satisfied. -
Bonds or any principal amount(s) 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
4- Bonds 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 Bonds
on the Stated Maturities thereof or (if notice of redemption has been duly given or waived or if
irrevocable arrangements therefor accepted to the Paying Agent/Registrar have been made) the
redemption date thereof. The Corporation 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 in excess of the amount required for the payment
of the Bonds shall be remitted to the Corporation or deposited as directed by the Corporation.
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 Corporation, be remitted to the Corporation against a
803719 23
•
written receipt therefor. Notwithstanding the above and foregoing, any remittance of funds from the
Paying Agent/Registrar to the Corporation shall be subject to any applicable unclaimed property
laws of the State of Texas.
SECTION 25. Resolution a Contract - Amendments. This Resolution shall constitute a
contract with the Holders from time to time, be binding on the Corporation, and shall not be
amended or repealed by the Corporation while any Bond remains Outstanding except as permitted
in this Section. The Corporation, may, without the consent of or notice to any Holders, from time
to time and at any time, amend this Resolution 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 Corporation may, with the written consent from the owners holding a majority in
aggregate principal amount of the Parity Obligations then Outstanding affected thereby,amend,add
to, or rescind any of the provisions of this Resolution; provided that, without the written consent of
all Holders of Outstanding Bonds effected, 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 or Parity Obligations,as the case may be, required to be held
for consent to any such amendment, addition, or rescission.
SECTION 26. 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
Corporation 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 Corporation 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 Corporation,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 Resolution equally and ratably with all other Outstanding Bonds.
SECTION 27. Covenants Regarding Tax-Exempt Status.
(a) Definitions. When used in this Section 27, 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.
803719 24
"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 Corporation shall not use, permit the
use of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition,
construction or improvement of which is to be financed directly or indirectly with Gross Proceeds)
in a manner which if made or omitted, respectively, would cause the interest on any Bond to
become includable in the gross income, as defined in section 61 of the Code, of the owner thereof
for federal income tax purposes. Without limiting the generality of the foregoing, unless and until
the Corporation 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 Corporation shall comply with
each of the specific covenants in this Section.
(c) No Private Use or Private Payments. The Bonds are being issued to finance the
costs of the Project for and on behalf of the City, a political subdivision of the State of Texas and,
in connection therewith, the City and the Corporation will execute an agreement relating to the
ownership, operation and maintenance of the Project while the Bonds are outstanding and unpaid,
which agreement provides that,except as permitted by section 141 of the Code and the Regulations
and rulings thereunder, the Project shall at all times prior to the last Stated Maturity of Bonds:
803719 25
(1) be exclusively owned, operated and maintained by the City, and
prohibits the City from using or permitting the use of such Gross Proceeds or any
property acquired,constructed or improved with such Gross Proceeds in any activity
carried on by any person or entity other than a state or local government,unless
such use is solely as a member of the general public; and
(2) prohibits the City from directly or indirectly imposing or accepting any
charge or other payment for use of Gross Proceeds of the Bonds or for 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 Corporation 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 Corporation 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 Corporation shall not take or omit to take any
action which would cause the Bonds to be federally guaranteed within the meaning of section
149(b) of the Code and the Regulations and rulings thereunder.
(g) Information Report. The Corporation 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) No Rebate Required. Pursuant to Section 148(f)(4)(D)(iv) of the Code and for the
calendar year 1999, the City has irrevocably allocated to the Corporation $1,000,000 of its
$5,000,000 limitation under Section 148(f)(4)(D)(i)(IV)and declared the$1,000,000 so allocated to
the Corporation to bear a reasonable relationship to the benefits received by the City from the
Bonds. Therefore, the City and the Corporation warrant and represent that they satisfy the
803719 26
requirements of paragraph (2) and (3) of section 148(f) of the Code with respect to the Bonds
without making the payments for the United States described in such section. Specifically, the City
and the Corporation warrants and represents that:
(1) the City is a governmental unit with general taxing powers, the
Corporation is a subordinate entity of the City and for the calendar year 1999, the
City has irrevocably allocated $1,000,000 of its $5,000,000 limitation to the
Corporation;
(2) at least 95% of the net proceeds of the Bonds will be used for the
local governmental activities of the City;
(3) the aggregate face amount of all tax-exempt obligations issued or
expected to be issued by the City (and all subordinate entities thereof) in the
calendar year 1999 is not reasonably expected to exceed $5,000,000.
PROVIDED, HOWEVER, should additional tax exempt obligations be issued or incurred,
including lease purchase financings, in the 1999 calendar year which would cause the total face
amount of tax exempt obligations issued and incurred by the City and the Corporation in such
calendar year to exceed $5,000,000, the City agrees and covenants that it will maintain complete
records regarding the investments of the proceeds of sale of the Bonds and remit to the Corporation
any"arbitrage profits"to be rebated to the United States as required by Section 148(f)of the Code.
(I) Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of the
Code and the Regulations and rulings thereunder,the Corporation shall not,at any time prior to the
earlier of the Stated Maturity or final payment of the Bonds,enter into any transaction that reduces
the amount required to be paid to the United States pursuant to 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
party.
(j) Elections. The Corporation hereby directs and authorizes the President and
Secretary of the Corporation or the Treasurer for the Corporation, 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.
(k) Qualified Tax Exempt Obligations. In accordance with the provisions of paragraph
(3) of subsection (b) of Section 265 of the Code, the Corporation hereby designates the Bonds to
be "qualified tax exempt obligations" in that the Bonds are not"private activity bonds" as defined
in the Code and the reasonably anticipated amount of"qualified tax exempt obliga- tions" to be
issued by the City (including all subordinate entities of the City)for the calendar year 1999 will not
exceed $10,000,000.
SECTION 28. Notices to Holders - Waiver. Wherever this Resolution 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.
803719 27
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 Resolution provides for notice in any manner,
such notice may be waived in writing by the Holder entitled to receive such notice, either before
or after the event with respect to which such notice is given,and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders shall be filed with the Paying Agent/Registrar, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 29. Cancellation. All Bonds surrendered for payment, redemption, transfer or
exchange, if surrendered to the Paying Agent/Registrar, shall be promptly canceled by it and, if
surrendered to the Corporation, shall be delivered to the Paying Agent/Registrar and,if not already
canceled, shall be promptly canceled by the Paying Agent/Registrar. The Corporation may at any
time deliver to the Paying Agent/Registrar for cancellation any Bonds previously certified or
registered and delivered which the Corporation may have acquired in any manner whatsoever,and
all Bonds so delivered shall be promptly canceled by the Paying Agent/Registrar. All canceled
Bonds held by the Paying Agent/Registrar shall be destroyed as directed by the Corporation.
SECTION 30.Sale of Bonds. Pursuant to a public sale for the Bonds,the bid submitted by
Morgan Keegan&Company, Inc. (herein referred to as the"Purchasers") is declared to be the best
bid received producing the lowest"True Interest Cost Rate"to the Corporation, and the sale of the
Bonds to said Purchasers at the price of par and accrued interest to the date of delivery plus a
premium of$0 is hereby approved and confirmed. Delivery of the Bonds to the Purchasers shall
occur as soon as possible upon payment being made therefor in accordance with the terms of sale.
SECTION 31. Approval and Execution of Financing.Construction and Use Agreement with
the City. The "Financing, Construction, and Use Agreement" (the "Agreement") by and between
the Corporation and the City,attached hereto as Exhibit B and incorporated herein by reference as
a part of this Resolution for all purposes, is hereby approved as to form and content, and such
Agreement in substantially the form and substance attached hereto, together with such changes
or revisions as may be necessary to accomplish the financing or benefit the Corporation, is hereby
authorized to be executed by the President and Secretary of the Corporation and as the act and
deed of this Board; and such Agreement as executed by said officials shall be deemed approved
by the Board and constitute the Agreement herein approved.
SECTION 32. Official Statement. The use of the Preliminary Official Statement, dated
October 13, 1999, in the offering and sale of the Bonds is hereby ratified, confirmed and approved
in all respects, and the Board of Directors hereby finds that the information and data contained in
said Preliminary Official Statement pertaining to the Corporation and its financial affairs is true and
correct in all material respects and no material facts have been omitted therefrom which are
necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading. The final Official Statement, which reflects the terms of sale (together with
such changes approved by the Chairman or Vice Chairman of the Board of Directors or President,
First Vice President, Second Vice President, Secretary, Assistant Secretary or Treasurer of the
Corporation, one or more of said officials), shall be and is hereby in all respects approved and the
Purchasers are hereby authorized to use and distribute said final Official Statement,dated October
26, 1999, in the reoffering, sale and delivery of the Bonds to the public.
28
803719
SECTION 33. Proceeds of Sale. The proceeds of sale of the Bonds, excluding the
accrued interest and premium, if any, received from the Purchasers, shall be deposited in a
construction fund in accordance with the Agreement. Pending expenditure for the Projects,
such proceeds of sale may be invested in authorized investments and any investment earnings
realized shall be expended for the Projects or deposited in the Bond Fund. All surplus proceeds
of sale of the Bonds, including investment earnings, remaining after completion of the Project
together with the accrued interest and premium, if any, received from the Purchasers, shall be
deposited to the credit of the Bond Fund.
SECTION 34. Legal Opinion. The obligation of the Purchasers 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 35. 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 Corporation 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 36. Reserved.
SECTION 37. Control and Custody of Bonds. The President of the Board 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, and shall take and have charge and
control of the Initial Bond(s)pending the approval thereof by the Attorney General,the registration
thereof by the Comptroller of Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Chairman or Vice Chairman of the Board of Directors or President, First
Vice President, Second Vice President, Secretary, Assistant Secretary or Treasurer of the
Corporation, individually,jointly or collectively, are hereby authorized and directed to furnish and
execute such documents and certifications relating to the Corporation and the issuance of the
Bonds, as may be necessary for the approval of the Attorney General, registration by the
Comptroller of Public Accounts and delivery of the Bonds to the initial purchasers and, together
with the Corporation's financial advisor, general counsel, bond counsel and the Paying
Agent/Registrar, make the necessary arrangements for the delivery of the Initial Bond(s) to the
Purchasers and the initial exchange thereof for definitive Bonds.
SECTION 38. Benefits of Resolution. Nothing in this Resolution, expressed or implied,
is intended or shall be construed to confer upon any person other than the Corporation,the Paying
Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by
reason of this Resolution or any provision hereof, this Resolution and all its provisions being
intended to be and being for the sole and exclusive benefit of the Corporation, the Paying
Agent/Registrar and the Holders.
803719 29
SECTION 39. Inconsistent Provisions. All orders or resolutions, or parts thereof, which
are in conflict or inconsistent with any provision of this Resolution are hereby repealed to the
extent of such conflict and the provisions of this Resolution shall be and remain controlling as to
the matters contained herein.
SECTION 40. Governing Law. This Resolution shall be construed and enforced in
accordance with the laws of the State of Texas and the United States of America.
SECTION 41. Severability. If any provision of this Resolution or the application thereof
to any circumstance shall be held to be invalid, the remainder of this Resolution and the
application thereof to other circumstances shall nevertheless be valid, and the Board hereby
declares that this Resolution would have been enacted without such invalid provision.
SECTION 42. Construction of Terms. If appropriate in the context of this Resolution,
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 43. 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 Corporation 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, 1999)financial information and operating data with respect to the Corporation of
the general type included in the final Official Statement approved by Section 32 of this Resolution,
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 Corporation 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
Corporation 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.
803719 30
If the Corporation 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 Corporation
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 Corporation shall notify any SID and either each
NRMSIR or the MSRB, in a timely manner, of any of the following events with respect to the
Bonds, if such event is material within the meaning of the federal securities laws:
1. Principal and interest payment delinquencies;
2. Non-payment related defaults;
3. Unscheduled draws on debt service reserves reflecting financial difficulties;
4. Unscheduled draws on credit enhancements reflecting financial difficulties;
5. Substitution of credit or liquidity providers, or their failure to perform;
6. Adverse tax opinions or events affecting the tax-exempt status of the
Bonds;
7. Modifications to rights of holders of the Bonds;
8. Bond calls;
9. Defeasances;
10. Release,substitution,or sale of property securing repayment of the Bonds;
and
11. Rating changes.
The Corporation shall notify any SID and either each NRMSIR or the MSRB, in a timely
manner, of any failure by the Corporation 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 Corporation shall be obligated to
observe and perform the covenants specified in this Section while, but only while,the Corporation
remains an "obligated person"with respect to the Bonds within the meaning of the Rule, except
that the Corporation in any event will give the notice required by subsection(c)hereof of any Bond
calls and defeasance that cause the Corporation 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 Corporation 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
Corporation'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 Corporation 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.
803719 31
UNDER NO CIRCUMSTANCES SHALL THE CORPORATION 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
CORPORATION, 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 Corporation in observing or performing its obligations under this Section
shall constitute a breach of or default under this Resolution for purposes of any other provision of
this Resolution.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the Corporation under federal and state securities laws.
The provisions of this Section may be amended by the Corporation 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 Corporation, 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 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 Resolution that authorizes such an -
amendment) of the Outstanding Bonds consent to such amendment or (b) a Person that is
unaffiliated with the Corporation (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 Corporation 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 Corporation'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 Corporation
so amends the provisions of this Section, it shall include 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 44. Public Meeting. It is officially found, determined, and declared that the
meeting at which this Resolution 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
Resolution,was given,all as required by V.T.C.A.,Government Code,Chapter 551,as amended.
SECTION 45. Effective Date. This Resolution shall be in force and effect from and after
its passage on the date shown below.
[Remainder of Page Intentionally Left Blank]
803719 32
PASSED AND ADOPTED, this October 26, 1999.
EULESS DEVELOPMENT CORPORATION
)1412d-IY •j14-W
ATTEST: Chairman, Bogrd of Directors
-cr- ary
(Corporation Seal)
803719 33
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of October 26, 1999(this"Agreement"),by and between
the Euless Development Corporation (the "Issuer"), and The Bank of New York, New York, New
York, a state banking association duly organized and existing under the laws of the State of New
York and authorized to do business in the State of Texas, (the "Bank").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the issuance of its "Euless
Development Corporation Sales Tax Revenue Bonds, Series 1999" (the "Securities"), dated
October 15, 1999, such Securities to be delivered to the initial purchasers on or about December
2, 1999; and
WHEREAS, the Issuer has selected the Bank to serve as Paying Agent/Registrar in
connection with the payment of the principal of, premium,if any,and interest on said Securities and
with respect to the registration,transfer and exchange thereof by the registered owners thereof;and
WHEREAS,the Bank has agreed to serve in such capacities for and on behalf of the Issuer
and has full power and authority to perform and serve as Paying Agent/Registrar for the Securities;
NOW, THEREFORE, it is mutually agreed as follows: -
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01. Appointment. The Issuer hereby 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 of
the provisions hereof(including the reasonable compensation and the expenses and disbursements
of its agents and counsel).
802173.1 A
•
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 offices of the Bank located in Houston, Texas at the
address appearing 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 President, Vice President, Secretary, Assistant Secretary, or
Treasurer, 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
802173.1 -2-
Committee of the Board of Directors, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any Assistant
Cashier, any Trust Officer or Assistant Trust Officer, or any other officer of the Bank
customarily performing functions similar to those performed by any of the above designated
officers and also means,with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and familiarity with the
particular subject.
"Security Register"means a register maintained by the Bank on behalf of the Issuer
providing for the registration and transfers of Securities.
"Stated Maturity" means the date specified in the Bond Resolution the principal of
a Security is scheduled to be due and payable.
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 address:
The Bank of New York
Information Services
1301 Fannin Street, Suite 2215
Houston, Texas 77002
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.
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
802173. -3-
Security at its Stated Maturity, Redemption Date,or Acceleration Date,to the Holder upon surrender
of the Security to the Bank at the Bank Office.
As Paying Agent, the Bank shall, provided adequate collected funds have been provided to
it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer 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.
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. All transfers, exchanges and replacement of Securities shall be noted in the Security
Register.
Every Security surrendered for transfer or exchange shall be duly endorsed or be
accompanied by a written instrument of transfer, the signature on which has been guaranteed by
an officer of a federal or state bank or a member of the National Association of Securities Dealers,
in form satisfactory to the Bank, duly executed by the Holder thereof or his agent duly authorized
in writing.
The Bank may request any supporting documentation it feels necessary to effect a
re-registration, transfer or exchange of the Securities.
To the extent possible and under reasonable circumstances, the Bank agrees.that, in
relation to an exchange or transfer of Securities, the exchange or transfer by the Holders thereof
will be completed and new Securities delivered to the Holder or the assignee of the Holder in not
more than three(3)business days after the receipt of the Securities to be cancelled in an exchange
802173.1 -4-
•
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
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 26 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
802173.1 -5-
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.
(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.
802173.1 -6-
(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 Account/Collateralization. A fiduciary
account shall at all times be kept and maintained by the Bank for the receipt, safekeeping and
disbursement of moneys received from the Issuer hereunder for the payment of the Securities,and
money deposited to the credit of such account until paid to the Holders of the Securities shall be
continuously 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 trust account shall be made by check drawn on
such trust account unless the owner of such Securities shall, at its own expense and risk, request
such other medium of payment.
The Bank shall be under no liability for interest on any money received by it hereunder.
Subject to the applicable unclaimed property laws of the State of Texas, any money
deposited with the Bank for the payment of the principal, premium (if any), or interest on any
Security and remaining unclaimed for 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.
802173.1 -7-
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 either the
Bank Office or the administrative offices of the Issuer is located, and agree that service of process
by certified or registered mail, return receipt requested, to the address referred to in Section 6.03
of this Agreement shall constitute adequate service. The Issuer and the Bank further agree that the
Bank has the right to file a Bill of Interpleader in any court of competent jurisdiction to determine the
rights of any Person claiming any interest herein.
Section 5.08. DT Services. It is hereby represented and warranted that, in the event the
Securities are otherwise qualified and accepted for "Depository Trust Company" services or
equivalent depository trust services by other organizations,the Bank has the capability and, to the
extent within its control, will comply with the"Operational Arrangements", effective December 12,
1994, 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 pasties 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 10.
Section 6.04. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 6.05. Successors and Assigns. All covenants and agreements herein by the Issuer
shall bind its successors and assigns,whether so expressed or not.
Section 6.06. Severability. In case any provision herein shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any
way be affected or impaired thereby.
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.
802173.1 -8-
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.
802173.1 -9-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
THE BANK OF NEW YORK,
New York, New York
BY
Title:
[SEAL]
Attest:
Address: 10161 Centurion Parkway
2nd Floor
Title: Jacksonville, FL 32256
EULESS DEVELOPMENT CORPORATION
BY
President
(CORPORATION SEAL)
Address: 201 North Ector Drive
Attest: Euless, Texas 76039
Secretary
802173.1 -10-
FINANCING, CONSTRUCTION, AND USE AGREEMENT
This Financing,Construction,and Use Agreement(this"Agreement')is made to be effective
as of the 26th day of October, 1999, by and between the City of Euless, Texas, a duly incorporated
and existing municipal corporation and political subdivision of the State of Texas (the "City") and
the Euless Development Corporation,a non-profit industrial development corporation organized and
existing under the laws of the State of Texas, including Vernon's Ann. Civ. St., Section 4B of Article
5190.6, (the "Corporation").
RECITALS
WHEREAS, the Corporation on behalf of the City is to finance park improvements at The
Parks At Texas Star, including irrigation, landscaping, and the construction of an entry way and
parking facilities (the "Project");and,
WHEREAS, such financing contemplates the issuance and sale of the Corporation's tax
exempt bonds in the principal amount of$1,000,000, and the proceeds of sale are to be used by
the Corporation to design and construct the Project; and
WHEREAS, the Corporation, subject to the plans and specifications approved by the City,
will have full responsibility for the design, construction, and financing of the Project;
AGREEMENT
1. Financing of Project: For and in consideration of the City's covenants and agreements
herein contained and subject to the terms contained herein,the Corporation hereby agrees to issue
and sell a series of obligations to be known as "Euless Development Corporation Sales Tax
Revenue Bonds, Series 1999", hereinafter called the"Bonds", and expend the proceeds of sale of
the Bonds to construct the Project.
2.Location of Project.The City and the Corporation acknowledge and agree that the Project
is to be constructed on property owned by the City (the"Property").
3.Construction of Project. In accordance with the plans and specifications approved by the
City, the Corporation shall (subject to delays caused by force majeure) commence construction
within a reasonable time after the date of the receipt of proceeds from the sale of the Bonds. The
Corporation and City agree,that any Corporation representative, any architect,and any contractor
or subcontractor selected by the Corporation shall have the right of access to the Property at all
reasonable times to permit the Corporation to carry out its obligations under this Agreement to
design and construct the Project.
4. Use. The upkeep and maintenance of the Project will be the responsibility of the City,and
except to provide funds budgeted by the Corporation for the payment of its maintenance and
operating costs while the Project is owned and maintained by the City, the Corporation shall have
no responsibility with respect to the operation, upkeep and maintenance of the Project .
799959
EX , B 4
5. Ownership of the Project. Upon completion of the construction of the Project by the
Corporation, ownership of the Project, by operation of law, shall become vested in the City, as fee
simple owner of the improvements.
6. Recognition of Tax Exempt Financing. The City hereby acknowledges and recognizes
that the Bonds are being issued as "state or local bonds" under and pursuant to section 103(a)of
the Internal Revenue Code of 1986, as amended, and the City hereby covenants and agrees with
respect to the use of the Project as follows:
(a) Definitions. When used in this Section, 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.
799959 -2-
(b) Not to Cause Interest to Become Taxable. The City shall not use, permit the use of,
or omit to use property the acquisition, construction or improvement of which is to be financed
directly or indirectly with Gross Proceeds in a manner which if made or omitted, respectively, would
cause the interest on any Bond to become includable in the gross income, as defined in section 61
of the Code, of the owner thereof for federal income tax purposes. Without limiting the generality
of the foregoing, unless and until the City 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) No Rebate Reauired. Pursuant to Section 148(f)(4)(D)(iv) of the Code and for the
calendar year 1999, the City has irrevocably allocated to the Corporation $1,000,000 of its
$5,000,000 limitation under Section 148(f)(4)(D)(i)(IV)and declared the$1,000,000 so allocated to
799969 -3-
•
the Corporation to bear a reasonable relationship to the benefits received by the City from the
Bonds. Therefore, the City and the Corporation warrant and represent that they satisfy the
requirements of paragraph (2) and (3) of section 148(f) of the Code with respect to the Bonds
without making the payments for the United States described in such section. Specifically, the City
and the Corporation warrants and represents that:
(1) the City is a governmental unit with general taxing powers, the
Corporation is a subordinate entity of the City and for the calendar year 1999, the
City has irrevocably allocated $1,000,000 of its $5,000,000 limitation to the
Corporation;
(2) at least 95% of the net proceeds of the Bonds will be used for the
local governmental activities of the City;
(3) the aggregate face amount of all tax-exempt obligations issued or
expected to be issued by the City (and all subordinate entities thereof) in the
calendar year 1999 is not reasonably expected to exceed $5,000,000.
PROVIDED, HOWEVER, should additional tax exempt obligations be issued or incurred,
including lease purchase financings, in the 1999 calendar year which would cause the total face
amount of tax exempt obligations issued and incurred by the City and the Corporation in such
calendar year to exceed $5,000,000, the City agrees and covenants that it will maintain complete
records regarding the investments of the proceeds of sale of the Bonds and remit to the Corporation
any"arbitrage profits"to be rebated to the United States as required by Section 148(f)of the Code.
7. Receipt and Transfer of Proceeds of Sales Tax. The City agrees, in cooperation with the
Corporation, to take such actions as are required to cause the "Gross Sales Tax Revenues" (as
such term is defined in the resolution authorizing the issuance of the Bonds) received from the
Comptroller of Public Accounts of the State of Texas for and on behalf of the Corporation to be
transferred and deposited immediately upon receipt by the City to the credit of the banking or
monetary fund maintained at the depository designated by the Corporation and known on the books
and records of the Corporation as the"Pledged Revenue Fund".
8. Compliance with SEC Rule 15c2-12. In consideration for financing the Project,the City
agrees to assist and file on behalf of the Corporation updated financial information and operating
data pertaining the Corporation and otherwise comply with the undertaking of the Corporation
described in the Official Statement pertaining to the issuance of the Bonds and in Section 43 of the
Resolution authorizing the issuance of the Bonds.
9. Modifications. This Agreement shall not be changed orally, and no executory
agreement shall be effective to waive, change, modify or discharge this Agreement in whole or in
part unless such executory agreement is in writing and is signed by the parties against whom
enforcement of any waiver, change, modification or discharge is sought.
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10. Entire Agreement. This Agreement, including the Exhibits, contains the entire
agreement between the parties pertaining to the subject matter hereof and fully supersedes all prior
agreements and understandings between the parties pertaining to such subject matter.
11. Counterparts. This Agreement may be executed in several counterparts, and all
such executed counterparts shall constitute the same agreement. It shall be necessary to account
for only one such counterpart in proving this Agreement.
12. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall
nonetheless remain in full force and effect.
13. Applicable Law. This Agreement shall in all respects be governed by,and construed
in accordance with, the substantive federal laws of the United States and the laws of the State of
Texas.
[Remainder of Page Intentionally Left Blank]
•
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14. Captions. The section headings appearing in this Agreement are for convenience
of reference only and are not intended, to any extent and for any purpose, to limit or define the text
of any section or any subsection hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective
as of the date and year first above written.
EULESS DEVELOPMENT CORPORATION
President
ATTEST:
Secretary
(Corporation Seal)
CITY OF EULESS, TEXAS
ATTEST: Mayor
City Secretary
(City Seal)
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Exhibit C
to
Resolution
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 43 of this Resolution.
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 Corporation appended to the Official
Statement as Appendix B, but for the most recently concluded fiscal year.
2. The information in Tables 1 through 4 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.
34
•
CERTIFICATE OF CORPORATE SECRETARY
THE STATE OF TEXAS §
§ EULESS DEVELOPMENT CORPORATION
COUNTY OF TARRANT §
I, the undersigned, Secretary of the Euless Development Corporation (the "Corporation"),
DO HEREBY CERTIFY as follows:
1. On the 26th day of October, 1999, a special meeting of the Board of Directors of the
Corporation was held in the City Hall of the City of Euless, Texas; the duly constituted members of
the Board of Directors and officers of the Corporation being as follows:
BOARD OF DIRECTORS: OFFICERS:
MARY LIB SALEH, CHAIRMAN JOE HENNIG PRESIDENT
BOBBY BAKER, VICE CHAIRMAN GARY MCKANIE FIRST VICE PRESIDENT
SONJA ADAMS ANDREA BAXTOR SECOND VICE PRESIDENT
WAYNE MARRS LORETTA GETCHELL TREASURER
CHARLES MILLER SUSAN CRIM SECRETARY
LETTY LYNN MALONEY
CARL TYSON_
Baker and
and all of said boardmembers, except the following: AdamS and certain of said officers
were present at said meeting. Among other business considered at said meeting, the attached
resolution entitled:
A RESOLUTION authorizing the issuance of "EULESS DEVELOPMENT
CORPORATION SALES TAX REVENUE BONDS,SERIES 1999";pledging
certain"Pledged Revenues"of the Corporation, including"Gross Sales Tax
Revenues",to the payment of the principal of and interest on said Bonds and
enacting other provisions incident and related to the issuance, payment,
security and delivery of said bonds, including the approval of a Paying
Agent/Registrar Agreement and a Financing, Construction and Use
Agreement with the City, and resolving other matters incident and related to
the issuance and sale of the Bonds.
was introduced and submitted to the Board for passage and adoption. After presentation and due
consideration of the resolution and,upon a motion made by Boardmember Maloney and
seconded by Boardmember Tyson , the resolution was duly passed and adopted by the
Board to be effective immediately by the following vote:
5 voted "For" 0 voted "Against" 0 abstained
all as shown in the official Minutes of the Board for the meeting held on the aforesaid date.
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2. The attached resolution is a true and correct copy of the original on file in the official
records of the Corporation; the duly qualified and acting members of the Board of Directors and
officers of said Corporation on the date of the aforesaid meeting are those persons shown above
and, according to the records of my office, advance notice of the time, place and purpose of the
meeting was given to each member of the Board;and that said meeting, and the deliberation of the
aforesaid public business, was open to the public and written notice of said meeting, including the
subject of the above entitled resolution,was posted and given in advance thereof in compliance with
the provisions of V.T.C.A., Government Code, Chapter 551, as amended.
IN WITNESS WHEREOF, I have hereunto signed my name officially and affixed the seal of
said Corporation, this the 26th day of October, 1999.
Sect
Euless Developmen Corporation
(Corporation Seal)
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