O-1362-9-95ORDINANCE NO. 1362-9-95
AN ORDINANCE authorizing the issuance of "CITY OF ALLEN,
TEXAS, WATERWORKS AND SEWER SYSTEM REVENUE BONDS,
SERIES 1995"; pledging the net revenues of the
City's combined Waterworks and Sewer System to the
payment of the principal of and interest on said
Bonds; enacting provisions incident and related to
the issuance, payment, security and delivery of
said bonds, including the approval and execution of
a Paying Agent/Registrar Agreement and the approval
and distribution of an Official Statement
pertaining thereto; and providing an effective
date.
WHEREAS, a "Notice of Intention To Issue City of Allen, Texas,
Revenue Bonds" in the principal amount not to exceed $4,100,000,
maturing not later than December 31, 2035 and bearing interest at
a rate not to exceed 15% per annum, for the purpose of making
improvements and extensions to the City's combined Waterworks and
Sewer System has been duly published in the Allen American, a
newspaper published and of general circulation in the City of
Allen, Texas, in the issues dated September 2, 1995 and
September 9, 1995, the date of the first publications of such
notice being at least fourteen (14) days prior to September 21,
1995, the date stated therein when this ordinance was scheduled to
be considered for passage and adoption by the City Council; and
WHEREAS, the City Council hereby finds and determines that no
petition, bearing the valid petition signatures of 5% or more of
the qualified voters of the City, requesting that an election be
held on the issuance of such revenue bonds has been filed with the
City Secretary or any other officer of the City and all of the
revenue bonds described in the aforesaid notice should be issued
and sold at this time; and
WHEREAS, the Council hereby further finds and determines that
all of such revenue bonds can and should be issued on a parity with
the City's outstanding revenue bonds (hereinafter defined and
identified as "Previously Issued Bonds") payable from and equally
secured by a first lien on and pledge of the Net Revenues of the
City's combined Waterworks and Sewer System (the "System") in that
(i) the Finance Director of the City will execute a certificate
stating (a) that, to the best of her knowledge and belief, the City
is not now in default as to any covenant, obligation or agreement
contained in any ordinance or other proceeding relating to any
obligations of the City payable from and secured by a lien on and
pledge of the Net Revenues of the System that would materially
affect the security or payment of such obligations and (b) payments
into all special funds or accounts created and established for the
payment and security of all outstanding obligations payable from
0270662
ORDINANCE NO. 1362-9-95
and secured by a lien on and pledge of the Net Revenues of the
System have been made and that the amounts on deposit in such
special funds or accounts are the amounts now required to be on
deposit therein; (ii) the bonds herein authorized shall be
scheduled to mature as to principal on June 1 in each year; and
(iii) the City has secured a certificate or opinion of a Certified
Public Accountant to the effect that, according to the books and
records of the City, the Net Earnings, for the last completed
Fiscal Year, are at least equal to 1.20 times the "Average Annual
Debt Service" for all "Bonds Similarly Secured" to be outstanding
after giving effect to the issuance of the bonds herein being
issued; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ALLEN,
TEXAS:
SECTION 1: Authorization -Designation -Principal Amount -
Purpose. Revenue bonds of the City shall be and are hereby
authorized to be issued in the aggregate principal amount of
$4,100,000 to be designated and bear the title "CITY OF ALLEN,
TEXAS, WATERWORKS AND SEWER SYSTEM REVENUE BONDS, SERIES 1995"
(hereinafter referred to as the "Bonds") , for the purpose of making
improvements and extensions to the City's combined Waterworks and
Sewer System, in conformity with the Constitution and laws of the
State of Texas, including Articles 1111, et. seq., as amended,
V.A.T.C.S.
SECTION 2: Fully Registered Obligations - Authorized
Denominations - Stated Maturities - Date. The Bonds shall be
issued as fully registered obligations, without coupons, shall be
dated September 1, 1995 (the "Bond Date") and, other than the
single fully registered Initial Bond referenced in Section 8
hereof, shall be in denominations of $5,000 or any integral
multiple thereof (within a Stated Maturity), shall be numbered
consecutively from One (1) upward and shall become due and payable
on June 1 in each of the years and in principal amounts (the
"Stated Maturities") and bear interest at per annum rates in
accordance with the following schedule:
Year of
Stated Maturity
1996 $
1997
1998
1999
2000
2001
2002
2003
027ON2 -2-
Principal Interest
Amount Rate(s)
115,000
7.125%
120,000
7.125%
125,000
7.125%
135,000
7.125%
140,000
7.125%
150,000
7.125%
160,000
7.125%
170,000
7.125%
ORDINANCE NO. 1362-9-95
2004
180,000
7.125%
2005
190,000
7.10 %
2006
200,000
5.125%
2007
210,000
5.125%
2008
225,000
5.125%
2009
235,000
5.125%
2010
250,000
5.125%
2011
265,000
5.125%
2012
280,000
5.125%
2013
300,000
5.125%
2014
315,000
5.125%
2015
335,000
5.125%
The Bonds shall bear interest on the unpaid principal amounts
from the Bond Date at the rate (s) per annum shown in the above
schedule (calculated on the basis of a 360 -day year of twelve
30 -day months). Interest on the Bonds shall be payable on June 1
and December 1 in each year, commencing June 1, 1996.
SECTION 3: Terms of Payment - Paving AgentlRegistrar. The
principal of, premium, if any, and the interest on the Bonds, due
and payable by reason of maturity, redemption or otherwise, shall
be payable only to the registered owners or holders of the Bonds
(hereinafter called the "Holders") appearing on the registration
and transfer books maintained by the Paying Agent/Registrar and
the payment thereof shall be in any coin or currency of the United
States of America, which at the time of payment is legal tender
for the payment of public and private debts, and shall be without
exchange or collection charges to the Holders.
The selection and appointment of Texas Commerce Bank National
Association, Dallas, Texas to serve as Paying Agent/Registrar for
the Bonds is hereby approved and confirmed. Books and records
relating to the registration, payment, transfer and exchange of
the Bonds (the "Security Register") shall at all times be kept and
maintained on behalf of the City by the Paying Agent/ Registrar, as
provided herein and in accordance with the terms and provisions of
a "Paying Agent/ Registrar Agreement", substantially in the form
attached hereto as Exhibit A, and such reasonable rules and
regulations as the Paying Agent/Registrar and the City may
prescribe. The Mayor and City Secretary are authorized to execute
and deliver such Agreement in connection with the delivery of the
Bonds. The City covenants to maintain and provide a Paying
Agent/Registrar at all times until the Bonds are paid and
discharged, and any successor Paying Agent/Registrar shall be a
bank, trust company, financial institution or other entity
qualified and authorized to serve in such capacity and perform the
duties and services of Paying Agent/Registrar. Upon any change
in the Paying Agent/Registrar for the Bonds, the City agrees to
promptly cause a written notice thereof to be sent to each Holder
0270662 -3-
ORDINANCE NO. 1362-9-95
by United States Mail, first class postage prepaid, which notice
shall also give the address of the new Paying Agent/Registrar.
Principal of and premium, if any, on the Bonds shall be
payable at the Stated Maturities or upon the earlier redemption
thereof, only upon presentation and surrender of the Bonds to the
Paying Agent/Registrar at its designated offices in Dallas, Texas
(the "Designated Payment/Transfer Office"). Interest on the Bonds
shall be paid to the Holders whose names appear in the Security
Register at the close of business on the Record Date (the 15th day
of the month next preceding each interest payment date) and shall
be paid by the Paying Agent/Registrar (i) by check sent United
States Mail, first class postage prepaid, to the address of the
Holder recorded in the Security Register or (ii) by such other
method, acceptable to the Paying Agent/ Registrar, requested by,
and at the risk and expense of, the Holder. If the date for the
payment of the principal of or interest on the Bonds shall be a
Saturday, Sunday, a legal holiday, or a day when banking
institutions in the City where the Designated Payment/ Transfer
Office of the Paying Agent/ Registrar is located are authorized by
law or executive order to close, then the date for such payment
shall be the next succeeding day which is not such a Saturday,
Sunday, legal holiday, or day when banking institutions are
authorized to close; and payment on such date shall have the same
force and effect as if made on the original date payment was due.
In the event of a non-payment of interest on one or more
maturities on a scheduled payment date, and for thirty (30) days
thereafter, a new record date for such interest payment for such
maturity or. maturities (a "Special =Record Date") will be
established by the Paying Agent/Registrar, if and when funds for
the payment of such interest have been received from the City.
Notice of the Special Record Date and of the scheduled payment
date of the past due interest (which shall be 15 days after the
Special Record Date) shall be sent at least five (5) business days
prior to the Special Record Date by United States Mail, first
class postage prepaid, to the address of each Holder of such
maturity or maturities appearing on the Security Register at the
close of business on the last business day next preceding the date
of mailing of such notice.
SECTION 4: Redemption. (a) Optional Redemption. The Bonds
maturing on and after June 1, 2006 shall be subject to redemption
prior to maturity, at the option of the City, in whole or in part
in principal amounts of $5,000 or any integral multiple thereof
(and if within a Stated Maturity by lot by the Paying Agent/
Registrar), on June 1, 2005 or on any date thereafter at the
redemption price of par plus accrued interest to the date of
redemption.
ORDINANCE NO. 1362-9-95
(b) Exercise of Redemption Option. 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 City 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 City to exercise the right to redeem Bonds shall
be entered in the minutes of the governing body of the City.
(c) Selection of Bonds for Redemption. If less than all
Outstanding Bonds of the same Stated Maturity are to be redeemed
on a redemption date, the Paying Agent/Registrar shall treat such
Bonds as representing the number of Bonds Outstanding which is
obtained by dividing the principal amount of such 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 City and at the City's expense, to each Holder
of a Bond to be redeemed in whole or in part at the address of the
Holder appearing on the Security Register at the close of business
on the business day next preceding the date of mailing such
notice, and any notice of redemption so mailed shall be
conclusively presumed to have been duly given irrespective of
whether received by the Holder.
All notices of redemption shall -(i) specify the date of
redemption for the Bonds, (ii) identify. the Bonds to be redeemed
and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state
the redemption price, (iv) state that the Bonds, or the portion of
the principal amount thereof to be redeemed, shall become due and
payable on the redemption date specified, and the interest
thereon, or on the portion of the principal amount thereof to be
redeemed, shall cease to accrue from and after the redemption
date, and (v) specify that payment of the redemption price for the
Bonds, or the principal amount thereof to be redeemed, shall be
made at the Designated Payment/Transfer Office of the Paying
Agent/ Registrar only upon presentation and surrender thereof by
the Holder. If a Bond is subject by its terms to prior redemption
and has been called for redemption and notice of redemption
thereof has been duly given or waived as herein provided, such
Bond (or the principal amount thereof to be redeemed) shall become
due and payable, and interest thereon shall cease to accrue from
and after the redemption date therefor, provided moneys sufficient
for the payment of such Bonds (or of the principal amount thereof
OVW2 -5-
ORDINANCE NO. 1362-9-95
to be redeemed) at the then applicable redemption price are held
for the purpose of such payment by the Paying Agent/Registrar.
SECTION 5: Registration - Transfer - Exchange of Bonds
Predecessor Bonds. The Paying Agent/Registrar shall obtain,
record, and maintain in the Security Register the name and address
of each registered owner of the Bonds issued under and pursuant to
the provisions of this Ordinance. Any Bond may, in accordance
with its terms and the terms hereof, be transferred or exchanged
for Bonds of other authorized denominations upon the Security
Register by the Holder, in person or by his duly authorized agent,
upon surrender of such Bond to the 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 any Bond (other than the
Initial Bonds authorized in Section 8 hereof) at the Designated
Payment/Transfer Office of the Paying Agent/ Registrar, one or more
new Bonds shall be registered and issued to the assignee or
transferee of the previous Holder; such Bonds to be in authorized
denominations, of like Stated Maturity and of a like aggregate
principal amount as the Bond or Bonds surrendered for transfer.
At the option of the Holder, Bonds (other than the Initial
Bonds authorized in Section 8 hereof) may be exchanged for other
Bonds of authorized denominations and having the same Stated
Maturity, bearing the same rate of interest and of like aggregate
principal amount as the Bonds surrendered for exchange, upon
surrender of the Bonds to be exchanged at the Designated
Payment/Transfer Office of the Paying Agent/ Registrar. Whenever
any Bonds are surrendered for exchange, the Paying Agent/Registrar
shall register and deliver new Bonds, executed on behalf of, and
furnished by, the City, to the Holder requesting the exchange.
All Bonds issued upon any transfer or exchange of Bonds shall
be delivered at the Designated Payment/Transfer Office of the
Paying Agent/ Registrar, or sent by United States Mail, first class
postage prepaid, to the Holder and, upon the delivery thereof, the
same shall be valid obligations of the City, evidencing the same
obligation to pay, and entitled to the same benefits under this
Ordinance, as the Bonds surrendered in such transfer or exchange.
All transfers or exchanges of Bonds pursuant to this Section
shall be made without expense or service charge to the Holder,
except as otherwise herein provided, and except that the Paying
Agent/Registrar shall require payment by the Holder requesting
such transfer or exchange of any tax or other governmental charges
required to be paid with respect to such transfer or exchange.
O,O"2 -6-
ORDINANCE NO. 1362-9-95
Bonds cancelled by reason of an exchange or transfer pursuant
to the provisions hereof are hereby defined to be "Predecessor
Bonds," evidencing all or a portion, as the case may be, of the
same obligation to pay evidenced by the Bond or Bonds registered
and delivered in the exchange or transfer therefor. Additionally,
the term "Predecessor Bonds" shall include any mutilated, lost,
destroyed, or stolen Bond for which a replacement Bond has been
issued, registered and delivered in lieu thereof pursuant to
Section 30 hereof and such new replacement Bond shall be deemed to
evidence the same obligation as the mutilated, lost, destroyed, or
stolen Bond.
Neither the City nor the Paying Agent/Registrar shall be
required to transfer or exchange any Bond called for redemption,
in whole or in part, within 45 days of the date fixed for
redemption of such Bond; provided, however, such limitation on
transferability shall not be applicable to an exchange by the
Holder of the unredeemed balance of a Bond called for redemption
in part.
SECTION 6: Book -Entry Only Transfers and Transactions.
Notwithstanding the provisions contained in Sections 3, 4 and 5
hereof relating to the payment, and transfer/exchange of the
Bonds, the City hereby approves and authorizes the use of
"Book -Entry Only" securities clearance, settlement and transfer
system provided by The Depository Trust Company (DTC), a limited
purpose trust company organized under the laws of the State of New
York, in accordance with the requirements and procedures
identified in the Letter of Representation, by and between the
City, the Paying Agent/Registrar and DTC (the "Depository
Agreement") relating to the Bonds.
Pursuant to the Depository Agreement and the rules of DTC,
the Bonds shall be deposited with DTC who shall hold said Bonds
for its participants (the "DTC Participants"). While the Bonds
are held by DTC under the Depository Agreement, the Holder of the
Bonds on the Security Register for all purposes, including payment
and notices, shall be Cede & Co., as nominee of DTC,
notwithstanding the ownership of each actual purchaser or owner of
each Bond (the. "Beneficial Owners") being recorded in the records
of DTC and DTC Participants.
In the event DTC determines to discontinue serving as
securities depository for the Bonds or otherwise ceases to provide
book -entry clearance and settlement of securities transactions in
general or the City determines that DTC is incapable of properly
discharging its duties as securities depository for the Bonds, the
City covenants and agrees with the Holders of the Bonds to cause
Bonds to be printed in definitive form and provide for the Bond
certificates to be issued and delivered to DTC Participants and
OV0662 -7-
Beneficial Owners, as the case may
definitive form shall be assigned
the Security Register maintained by
payment of such Bonds shall be
provisions of Sections 3, 4 and 5
ORDLNIANCE NO. 1362-9-95
y be. Thereafter, the Bonds in
, transferred and exchanged on
the Paying Agent/Registrar and
made in accordance with the
hereof.
SECTION 7: Execution - Registration. The Bonds shall be
executed on behalf of the City by the Mayor under its seal
reproduced or impressed thereon and countersigned by the City
Secretary. The signature of said officers on the Bonds may be
manual or facsimile. Bonds bearing the manual or facsimile
signatures of individuals who are or were the proper officers of
the City on the Bond Date shall be deemed to be duly executed on
behalf of the City, notwithstanding that such individuals or
either of them shall cease to hold such offices at the time of
delivery of the Bonds to the initial purchaser(s) and with respect
to Bonds delivered in subsequent exchanges and transfers, all as
authorized and provided in the Bond Procedures Act of 1981, as
amended.
No Bond shall be entitled to any right or benefit under this
Ordinance, or be valid or obligatory for any purpose, unless there
appears on such Bond either a certificate of registration
substantially in the form provided in Section 9C, manually
executed by the Comptroller of Public Accounts of the State of
Texas or his duly authorized agent, or a certificate of
registration substantially in the form provided in Section 9D,
manually executed by an authorized officer, employee or
representative of the Paying Agent/ Registrar, and either such
certificate upon any Bond duly signed shall be conclusive
evidence, and the only evidence, that -.such Bond has been duly
certified, registered and delivered.
SECTION 8: Initial Bond(s). The Bonds herein authorized
shall be initially issued either (i) as a single fully registered
bond in the total principal amount 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 twenty (20) 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
purchasers) . 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
OVON2 -8-
ORDINANCE NO. 1362-9-95
the Initial Bond(s) delivered hereunder and exchange therefor
definitive Bonds of authorized denominations, Stated Maturities,
principal amounts and bearing applicable interest rates for
transfer and delivery to the Holders named at the addresses
identified therefor; all pursuant to and in accordance with such
written instructions from the initial purchaser(s), or the
designee thereof, and such other information and documentation as
the Paying Agent/Registrar may reasonably require.
SECTION 9: Forms. A. Forms Generally. The Bonds, the
Registration Certificate of the Comptroller of Public Accounts of
the State of Texas, the Certificate of Registration, and the form
of Assignment to be printed on each of the Bonds, shall be
substantially in the forms set forth in this Section with such
appropriate insertions, omissions, substitutions, and other
variations as are permitted or required by this Ordinance and may
have such letters, numbers, or other marks of identification
(including identifying numbers and letters of the Committee on
Uniform Securities Identification Procedures of the American
Bankers Association) and such legends and endorsements (including
insurance legends in the event the Bonds, or any maturities
thereof, are purchased with insurance and any reproduction of an
opinion of counsel) thereon as may, consistently herewith, be
established by the City or determined by the officers executing
such Bonds as evidenced by their execution thereof. Any portion
of the text of any Bonds may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Bond.
The definitive Bonds and the Initial Bond(s) shall be
printed, lithographed, or engraved, typewritten, photocopied or
otherwise reproduced in any other %similar manner, all as
determined by the officers Executing such Bonds as evidenced by
their execution thereof.
B. Form of Definitive Bond.
REGISTERED REGISTERED
NO. $
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF ALLEN, TEXAS,
WATERWORKS AND SEWER SYSTEM
REVENUE BOND
SERIES 1995
Bond Date: Interest Rate: Stated Maturity: CUSIP NO:
September 1, 1995
OVONz -9-
ORDINANCE NO. 1362-9-95
Registered Owner:
Principal Amount: DOLLARS
The City of Allen (hereinafter referred to as the "City"), a
body corporate and municipal corporation in the County of Collin,
State of Texas, for value received, hereby promises to pay to the
order of the Registered Owner named above, or the registered
assigns thereof, solely from the revenues hereinafter identified,
on the Stated Maturity date specified above the Principal Amount
stated above (or so much thereof as shall not have been paid upon
prior redemption) and to pay interest (computed on the basis of a
360 -day year of twelve 30 -day months) on the unpaid Principal
Amount hereof from the Bond Date at the per annum rate of interest
specified above; such interest being payable on June 1 and
December 1 of each year, commencing June 1, 1996. Principal of
this Bond is payable at its Stated Maturity or redemption to the
registered owner hereof, upon presentation and surrender at the
Designated Payment Transfer/Office of the Paying Agent/Registrar
executing the registration certificate appearing hereon, or its
successor. Interest is payable to the registered owner of this
Bond (or one or more Predecessor Bonds, as defined in the Ordinance
hereinafter referenced) whose name appears on the "Security
Register" maintained by the Paying Agent/ Registrar at the close of
business on.the "Record Date", which is the 15th 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 Registe'r or by such other method,
acceptable to the Paying Agent/Registra-r, 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 $4,100,000 (herein referred to
as the "Bonds") for the purpose of making improvements and
extensions to the City's combined Waterworks and Sewer System,
under and in strict conformity with the Constitution and laws of
the State of Texas, including Articles 1111 et seq., V.A.T.C.S., as
amended, and pursuant to an Ordinance adopted by the governing- body
of the City (herein referred to as the "Ordinance").
The Bonds maturing on and after June 1, 2006 may be redeemed
prior to their Stated Maturities, at the option of the City, in
whole or in part in principal amounts of $5,000 or any integral
0270662 -10-
multiple thereof (and
Paying Agent/Registrar)
at the redemption price
redemption date.
ORD=ANCE NO. 1362-9-95
if within a Stated Maturity by lot by the
, on June 1, 2005 or on any date thereafter
of par plus accrued interest thereon to the
At least thirty days prior to the date fixed for any
redemption of Bonds, the City shall cause a written notice of such
redemption to be sent by United States Mail, first class postage
prepaid, to the registered owners of each Bond to be redeemed at
the address shown on the Security Register and subject to the terms
and provisions relating thereto contained in the Ordinance. If
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 Ordinance for the then -unredeemed balance of the
principal sum hereof. If this Bond is -.called for redemption, in
whole or in part, the City and the Paying Agent/Registrar shall not
be required to transfer this Bond to an assignee of the 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 special obligations of the City, and, together
with the outstanding Previously Issued Bonds (identified and
defined in the Ordinance), are payable solely from and equally and
ratably secured by a first lien on and pledge of the Net Revenues
(as def ined in the Ordinance) of the City Is combined Waterworks and
Sewer System (hereinafter referred to as the "System"). The Bonds
do not constitute a legal or equitable pledge, charge, lien or
encumbrance upon any property of the City or the System, except
with respect to the Net Revenues. The holder hereof shall never
have the right to demand payment of this obligation out of any
funds raised or to be raised by taxation.
0270662 -11-
ORD=ICE DIO. 1362-9-95
Subject to satisfying the terms and conditions prescribed
therefor, the City has reserved the right to issue additional
revenue obligations payable from and equally and ratably secured by
a parity lien on and pledge of the Net Revenues of the System, in
the same manner and to the same extent as the Bonds.
Reference is hereby made to the Ordinance, a copy of which is
on file in the Designated Payment/ Transfer Office of the Paying
Agent/Registrar, and to all of the provisions of which the Holder
by the acceptance hereof hereby assents, for definitions of terms;
the description of and the nature and extent of the security for
the Bonds; the properties constituting the System; the Net Revenues
pledged to the payment of the principal of and interest on the
Bonds; the nature and extent and manner of enforcement of the lien
and pledge securing the payment of the Bonds; the terms and
conditions for the issuance of additional revenue obligations; the
terms and conditions relating to the transfer or exchange of this
Bond; the conditions upon which the Ordinance may be amended or
supplemented with or without the consent of the Holders; the
rights, duties, and obligations of the City and the Paying
Agent/ Registrar; the terms and provisions upon which the liens,
pledges, charges and covenants made therein may be discharged at or
prior to the maturity or redemption of this Bond, and this Bond
deemed to be no longer Outstanding thereunder; and for the other
terms and provisions contained therein. Capitalized terms used
herein have the same meanings assigned in the Ordinance.
This Bond, subject to certain limitations contained in the
Ordinance, may be transferred on the Security Register only upon
its presentation and surrender at the Designated Payment/Transfer
Office of the Paying Agent/Registrar, with the Assignment hereon
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Paying Agent/Registrar duly
executed by, the registered owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or
more new fully registered Bonds of the same Stated Maturity, of
authorized denominations, bearing the same rate of interest, and of
the same aggregate principal amount will be issued by the Paying
Agent/Registrar to the designated transferee or transferees.
The City and the Paying Agent/ Registrar, and any agent of
either, may treat the registered owner whose name appears on the
Security Register (i) on the Record Date as the owner entitled to
payment of interest hereon, (ii) on the date of surrender of this
Bond as the owner entitled to payment of principal hereof at its
Stated Maturity or its redemption, in whole or in part, and (iii)
on any other date as the owner for all other purposes, and neither
the City nor the Paying Agent/Registrar, or any agent of either,
shall be affected by notice to the contrary. In the event of
non-payment of interest on a scheduled payment date and for
OVOC-162 -12-
ORDINANCE N.O. 1362-9-95
thirty (30) days thereafter, a new record date for such interest
payment (a "Special Record Date") will be established by the Paying
Agent/ Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record
Date and of the scheduled payment date of the past due interest
(which shall be 15 days after the Special Record Date) shall be
sent at least five (5) business days prior to the Special Record
Date by United States Mail, first class postage prepaid, to the
address of each Holder appearing on the Security Register at the
close of business on the last business day next preceding the date
of mailing of such notice.
It is hereby certified, recited, represented and covenanted
that the City is a duly organized and legally existing municipal
corporation under and by virtue of the Constitution and laws of the
State of Texas; that the issuance of the Bonds is duly authorized
by law; that all acts, conditions and things required to exist and
be done precedent to and in the issuance, of the Bonds to render the
same lawful and valid obligations of the City have been properly
done, have happened and have been performed in regular and due
time, form and manner as required by the Constitution and laws of
the State of Texas, and the Ordinance; that the Bonds do not exceed
any constitutional or statutory limitation; and that due provision
has been made for the payment of the principal of and interest on
the Bonds by a pledge of the Net Revenues of the System as
aforestated. In case any provision in this Bond or any application
thereof shall be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions and
applications shall not in any way be affected or impaired thereby.
The terms and provisions - of this Bond and the Ordinance shall be
construed in accordance with and shall•pe governed by the laws of
the State of Texas.
IN WITNESS WHEREOF, the City Council of the City has caused
this Bond to be duly executed under the official seal of the City
as of the Bond Date.
CITY OF ALLEN, TEXAS
COUNTERSIGNED: Mayor
y Se etary
(SEAL)
07,0682 -13-
ORDDIANCE NO. 1362-9-95
C. *Form of Registration Certificate of Comptroller of Public
Accounts to Appear on Initial Bond(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER )
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
*NOTE TO PRINTER: Do not print on definitive bonds
D. Form of I Certificate of Paving Agent /Registrar to Appear on
Definitive Bonds only.
REGISTRATION CERTIFICATE OF PAYING•AGENT/REGISTRAR
This Bond has been duly issued and registered in the name of
the Registered Owner shown above under the provisions of the
within -mentioned Ordinance; the bond or bonds of the above entitled
and designated series originally delivered having been approved by
the Attorney General of the State of Texas and registered by the
Comptroller of Public Accounts, as shown by the records of the
Paying Agent/Registrar.
The designated offices of the Paying Agent/Registrar located
in Dallas, Texas, is the "Designated Payment/Transfer Office" for
this Bond.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
as Paying Agent/Registrar
Registration date:
By:
Authorized Signature
OV0662 1 -1�t-
OPJ)IN lA -CE NO. 1362-9-95
I
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:)
or other identifying number: (Social Security
within Bond and all rights thereunder, and hereby irrevocably
constitutes and appoints
to transfer the within Bond on the books kept for re attorney
i
thereof, with full power of substitution in the premises.
stration
DATED:
Signature guaranteed:
NOTICE: The signature on this
assignment must correspond with
the name of the registered owner
as it appears on the face of the
within Bond in every particular.
F. The Initial Bond(s) shall be in the form set forth in
Paragraph B of this Section except that the form of a
single fully registered Initial Bond shall be modified as
follows.
(i) immediately under the name of the bond the headings
Interest Rate " and "Stated Maturity
shall both be omitted";
(ii) Paragraph one shall read as follows:
The City,of Allen (hereinafter referred to as the "City"), a
body corporate and municipal corporation in the County of Collin,
State of Texas, for value received, hereby promises to. pay to the
order of the' Registered Owner named above, or the registered
assigns thereof, solely from the revenues hereinafter identified,
the Principal Amount hereinabove stated on June 1 in each of the
years and
in principal installments in accordance with the
following schedule:
YEAR
PRINCIPAL
INSTALLMENTS
INTEREST
RATE
(Information to be inserted from
schedule in Section 2 hereof).
(or so much thereof as shall not have been prepaid prior to
maturity) and to pay interest, computed on the basis of a 360 -day
OV0662 -15-
ORD=CE NO. 1362-9-95
year of twelve 30 -day months, on the unpaid principal amounts
hereof from the Bond Date at the per annum rates of interest
specified above; such interest being payable on June 1 and
December 1 in each year, commencing June 1, 1996. Principal
installments of this Bond are payable in the year of -maturity or on
a prepayment date to the registered owner hereof by Texas Commerce
Bank National Association (the "Paying Agent/Registrar"), upon
presentation and surrender, at its designated offices in Dallas,
Texas (the "Designated Payment/ Transfer Office"). Interest is
payable to the registered owner of this Bond whose name appears on
the "Security Register" maintained by the Paying Agent/Registrar at
the close of business on the "Record Date", which is the 15th day
of the monthinext 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
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.
I
SECTION;10: Definitions. For all purposes of this Ordinance
and in particular for clarity with respect to the issuance of the
Bonds herein authorized and the pledge and appropriation of
revenues to the payment of the Bonds, the following definitions are
provided: I
"Additional Parity Bonds" - Revenue bonds or other
evidences of indebtedness which the City 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 are equally and
ratably secured by a first lien on and pledge of the Net
Revenues of the System.
"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 bond proceeds shall be excluded in making.
the aforementioned computation.
Bo nds" - The "City of Allen
Sewer System Revenue Bonds,
September 1, 1995, authorized by
OVW2 1 -16-
Texas, Waterworks and
Series 1995111 dated
this Ordinance.
ORDINANCE NO. 1362-9-95
"Bonds Similarly Secured" - Collectively, the
Previously Issued Bonds, the Bonds and Additional Parity
Bonds.
"City" - The City of Allen located in the County of
Collin,�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 City 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 highest rate
reached, or that would have been applied to such
obligations (using the index or measure for computing
interest, applicable to such obligations) during the
twenty-four (24) month period next preceding the date of
computation, 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.
"Fiscal Year" - The twelve month accounting period
used by the City in connection with the operation of the
System which may be any twelve consecutive month period
established by the City.
"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, sand United States Treasury obligations such as
its State and Local Government Series in book -entry form.
"Gross Revenues" - All income, receipts and revenues
of every nature derived or received from the operation
and ownership (excluding refundable meter deposits,
restricted gifts and grants in aid of construction) of
the System, including earnings and income derived from
the investment or deposit of moneys in any special funds
-
or accounts created and established for the payment and
security iof the Bonds Similarly Secured and other
obligations payable solely from and secured only by a
lien on and pledge of the Net Revenues.
I
OVOM2 1 -17-
01MINANCE NO. 1362-9-95
"Operating and Maintenance Expenses" - All current
expenses of operating and maintaining the System,
including all salaries, labor, materials, repairs and
extensions necessary to render efficient service;
provided, however, that only such repairs and extensions,
as in the judgment of the City Council, reasonably and
fairly exercised, are necessary to maintain the
operations and render adequate service to the City and
the inhabitants thereof, or such as might be necessary to
meet some physical accident or condition which would
otherwise impair obligations payable from Net Revenues
shall Abe deducted in determining "Net Revenues".
Depreciation charges shall not be considered Operating
and Maintenance Expenses. Operating and Maintenance
Expenses shall include payments under contracts for the
purchase of water supply or the treatment of sewage or
other materials, goods, services or facilities for the
System to the extent authorized by law and the provisions
of such contract.
"Net Earnings" - The meaning assigned to such term
in Section 18 hereof.
"Net Revenues" - Gross Revenues of the System, with
respect to any period, after deducting the System's
Operating and Maintenance Expenses during such period.
"Outstanding" - When used in this Ordinance with
respect to Bonds or Bonds Similarly Secured, as the case
may be, imeans, as of -the date of determination, all Bonds
and Bonds Similarly Secured theretofore sold, issued and
delivered by the City, except:
(1) those Bonds or Bonds Similarly
Secured cancelled or delivered to the transfer
agent or registrar for cancellation in
connection with the exchange or transfer of
such obligations;
(2) those Bonds or Bonds Similarly
Secured paid or deemed to be paid in
accordance with the provisions of Section 28
hereof; and
1 (3) those Bonds or Bonds Similarly
Secured that have been mutilated, destroyed,
lost, or stolen and replacement bonds have
been registered and delivered in lieu thereof.
027ON2 1 -18-
ORDINANCE NO. 1362-9-95
"Previously Issued Bonds" - The presently
outstanding and unpaid revenue bonds payable from and
secured by a first lien on and pledge of the Net Revenues
of the System, more particularly described as follows:
"City of Allen, Texas, Waterworks and Sewer System
Refunding and Improvement Revenue Bonds, Series 1992",
dated July 15, 1992, and originally issued in the
aggregate principal amount of $8,545,000,
"Required Reserve" - The amount required to be
accumulated and maintained in the Reserve Fund under the
provisions of Section 14 hereof.
"System" - All properties, facilities and plants
owned, operated and maintained by the City for the
supply, treatment and transmission of potable water and
for the collection, treatment and disposal of
water -carried wastes, together with all future
extensions, improvements, replacements and additions
thereto;' provided, however, that notwithstanding the
foregoing, and to the extent now or hereafter authorized
or permitted by law, the term "System" shall not mean to
include facilities of any kind which are declared not to
be a part of the System and which are hereafter acquired
or constructed by or on behalf of the City with the
proceeds, from the issuance of "Special Facilities Bonds",
which are hereby defined as being special revenue
obligations of the City which are not Bonds Similarly
Secured but which are payable from and secured by other
liens on and pledges of any revenues, sources or
payments, not pledged to the p4yment of the Bonds
Similarly Secured including, but not limited to, special
contract revenues or payments received from any other
legal entity in connection with such facilities.
SECTION 11: Pledge. The City hereby covenants and agrees
that the Net Revenues of the System, with the exception -of those in
excess of the amounts required for the payment and security of the
Bonds Similarly Secured, are hereby irrevocably pledged, to the
payment and security of the Previously Issued Bonds, the Bonds and
Additional Parity Bonds, if issued, including the establishment and
maintenance of the special funds created and established by this
Ordinance, all as hereinafter provided, and it is hereby ordained
that the lien on and pledge of the Net Revenues securing the
payment of the Bonds Similarly Secured and interest thereon shall
be valid and binding in accordance with the terms hereof without
any filing or recording thereof, except in the official records of
the City, orphysical delivery of such Net Revenues or further act
by the City. ,
OV0662 1 -19-
O12DL*WCE NO. 1362-9-95
SECTION 12: System Fund. The City hereby covenants and
agrees that Gross Revenues of the System (excluding earnings and
income derived from investments held in the Bond Fund and Reserve
Fund) shall be deposited as collected to the credit of a fund
maintained at an official depository of City funds and known on the
books and records of the City as the "Waterworks and Sewer System
Fund" (herein called the "System Fund"), and such revenues of the
System shall be kept separate and apart from all other funds of the
City. All revenues deposited in the System Fund shall be pledged
and appropriated to the extent required for the following uses and
in the order of priority shown:
I
(1) To the payment of all necessary and reasonable
Operating and Maintenance Expenses of the System as
defined herein or required by statute to be a first
charge on and claim against the Gross Revenues thereof.
(2) To the payment of the amounts required to be
deposited in the Bond Fund for the payment of Debt
Service on the Bonds Similarly Secured as the same
becomes due and payable.
(3) 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
this Ordinance or any other ordinance relating to
issuance of Bonds Similarly Secured.
Any Net Revenues remaining in the System Fund after satisfying
the foregoing payments, or making adequate and sufficient provision
for the payment thereof, may be appropri4ted and used for any other
City purpose now or hereafter permitted by law.
SECTION,13: Bond Fund. For purposes of providing funds to
pay the principal of and interest on the Bonds as the same becomes
due and payable, the City agrees to maintain a separate and special
account or fund on the books and records of the City known as the
"City of Allen Interest and Sinking Revenue Bond Fund" (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 an
official depository of the City. In addition to the deposits to
the Bond Fund for the payment of the Previously Issued Bonds, the
City covenants that there shall be deposited into the Bond Fund
prior to each principal and interest payment date from the Net
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 by reason of maturity or redemption, and such deposits to
pay principall and accrued interest on the Bonds shall be made in
substantially, equal monthly installments on or before the 25th day
OV0662 -20-
ORDINANCE NO. 1362-9-95
of each month, beginning on or before the 25th day of the month
next following the delivery of the Bonds to the initial purchaser.
The required monthly deposits to the Bond Fund for the payment
of principal of and interest on the Bonds shall continue to be made
as hereinabove provided until (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 Outstanding Bonds Similarly Secured
(principal and interest) or (ii) the Bonds are no longer
Outstanding.
Accrued interest and premium, if any, received from the
purchaser(s) of the Bonds, as well as earnings derived from the
investment of moneys in the Bond Fund, shall be deposited to the
credit of the Bond Fund and taken into consideration and reduce the
amount of the monthly deposits hereinabove required to be deposited
in the Bond Fund from the Net Revenues of the System.
SECTION 14: Reserve Fund. For purposes of accumulating and
maintaining funds as a reserve for the payment of the Bonds
Similarly Secured, the City reaffirms its covenant with the owners
of the Previously Issued Bonds and agrees with the Holders of the
Bonds to maintain a separate and special fund or account at a
depository of city funds to be known as the "City of Allen Revenue
Bond Reserve Fund" (the "Reserve Fund"), and all funds deposited
therein (excluding earnings and income derived or received from
deposits or investments which may be transferred to the System Fund
established inISection 12 hereof during such periods as there is on
deposit in the Reserve Fund the Required Reserve) shall be used
solely for the payment of the principal of and interest on the
Bonds Similarly Secured when (whether at maturity, upon a mandatory
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 Bonds Similarly Secured so that such series of Bonds
Similarly Secured is no longer deemed to be "Outstanding" as such
term is defined herein.
In accordance with the provisions of the ordinances
authorizing the issuance of the Previously Issued Bonds, the total
amount currently on deposit in the Reserve Fund is $677,672.00 (the
"Current Reserve"). By reason of the issuance of the Bonds, the
total amount required to be accumulated and maintained in said Fund
is hereby determined to be $895,586.00 (the "Required Reserve")
which amount is hereby found to equal or exceed the Average Annual
Debt Service for the Bonds and the Previously Issued Bonds
(calculated on 'a Fiscal Year basis as of the date the Bonds are to
be delivered) .I The City agrees that beginning on or before the
25th day of the month next following the month the Bonds are
MN62 -21-
ORDINANCE NO. 1362-9-95
delivered to the initial purchasers and on or before the 25th day
of each following month until the Required Reserve has been fully
accumulated, there shall be deposited into the Reserve Fund from
the Net Revenues of the System an amount equal to at least 1/60th
of the difference between the Required Reserve and the Current
Reserve.
When and so long as 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
(other than as the result of the issuance of Additional Parity
Bonds as provided in the paragraph below), the City covenants and
agrees to cure the deficiency in the Required Reserve by making
monthly deposits to said Fund from the Net Revenues of the System;
such monthly deposits to be in amounts equal to not less than
1/60th of the then total Required Reserve to be maintained in said
Fund and to be made on or before the 25th day of each month until
the total Required Reserve then to be maintained in said Fund has
been fully restored. The City further covenants and agrees that,
subject only,to the payments to be made to the Bond Fund, the Net
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 Ordinance and any
other ordinance pertaining to the issuance of Additional Parity
Bonds.
As and when Additional Parity Bonds are delivered or incurred,
the Required Reserve shall be increased, if required, to an amount
equal to the lesser of (i) the Average Annual Debt Service
(calculated on a Fiscal Year basis) for all Bonds Similarly Secured
then Outstanding, as determined on the date each series of
Additional Parity Bonds are delivered or incurred, as the case may
be, or (ii) the maximum amount in a reasonably required reserve
fund that can be invested without restriction as to yield 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 maintained in the Reserve Fund
shall be so accumulated by the deposit in the Reserve Fund of all
or any part thereof in cash immediately after the delivery of the
then proposed Additional Parity Bonds, or, at the option of the
City, by the deposit of monthly installments, made on or before the
25th day of each month following the month of delivery of the then
proposed Additional Parity Bonds, of not less than 1/60th of the
additional amount to be maintained in said Fund by reason of the
issuance of the Additional Parity Bonds then _being issued (or
1/60th of the balance of the additional amount not deposited
immediately in' i cash).
OV0662 -22-
ORDINANCE NO. 1362-9-95
During such time as the Reserve Fund contains the total
Required Reserve, the City may, at its option, withdraw all surplus
in the Reserve Fund in excess of the Required Reserve and deposit
such surplus in the System Fund.
SECTION 15: Deficiencies; Excess Net Revenues. (a) If on any
occasion there shall not be sufficient Net Revenues of the System
to make the required deposits into the Bond Fund and the Reserve
Fund, then such deficiency shall be cured as soon as possible from
the next available Net Revenues of the System, or from any other
sources available for such purpose.
(b) Subject to making the required deposits to the Bond Fund
and the Reserve Fund when and as required by this Ordinance, or any
ordinance authorizing the issuance of Additional Parity Bonds, the
excess Net Revenues may be used by the City for any lawful purpose.
SECTION 16: Payment of Bonds. While any of the Bonds are
Outstanding, the Finance Director (or other designated financial
officer of the City) 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 or comes due by reason of redemption
prior to maturity; such transfer of funds to be made in such manner
as -will cause immediately available funds to be deposited with the
Paying Agent/Registrar for the Bonds at the close of the business
day next preceding the date of payment for the Bonds.
SECTION 17: Investments - Security of Funds. (a) Money in
any Fund established pursuant to this Ordinance may, at the option
of the City, be placed in time deposits or certificates of deposit
secured (to the extent not insured by the Federal Deposit Insurance
Corporation) by obligations of the type hereinafter described, or
be invested, ,including investments held in book -entry form, in
direct obligations of the United States of America and obligations
guaranteed or insured by the United States of America, which, in
the opinion of the Attorney General of the United States, are
backed by its full faith and credit or represent its general
obligations; 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 imoney in the Reserve Fund shall be limited to five
(5) years from the date of the investment of such money. _Such
investments (except State and Local Government Series investments
held in book entry form, which shall at all times be valued at
cost) 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
OVON2 -23-
0RD11\ NCE NO. 1362-9-95
30 days of the date of passage of each ordinance authorizing the
issuance of Additional Parity Bonds. All interest and income
derived from deposits and investments in the Bond Fund immediately
shall be credited to, and any losses debited to, 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
System Fund.; All such investments shall be sold promptly when
necessary to prevent any default in connection with the Bonds.
I
(b) Money in all Funds created by this Ordinance, to the
extent not invested, shall be secured in the manner and to the
fullest extent required by the laws of the State of Texas for the
security of public funds.
SECTION 18: Issuance of Additional Parity Obligations.
Subject to the provisions hereinafter appearing as to conditions
precedent which must be satisfied, the City reserves the right to
issue, from time to time as needed, Additional Parity Bonds for any
lawful purpose. Such Additional Parity Bonds may be issued in such
form and manner as now or hereafter authorized by the laws of the
State of Texas for the issuance of evidences of indebtedness or
other instruments, and should new methods or financing techniques
be developed, that differ from those now available and in normal
use, the City reserves the right to employ the same in its
financing arrangements provided only that the following conditions
precedent for the authorization and issuance of the same are
satisfied, to wit:
(1) The Finance Director of. the City (or other
officer of the City then having the primary
responsibility for the financial affairs of the City)
shall have executed a certificate stating (a) that, to
the best of his knowledge and belief, the City is not
then in default as to any covenant, obligation or
agreement contained in any ordinance or other proceeding
relating to any obligations of the City payable from and
secured by a lien on and pledge of the Net Revenues of
the System that would materially affect the security or
payment of such obligations and (b) either (i) payments
into all special funds or accounts created and
established for the payment and security of all
outstanding obligations payable from and secured by a
lien on and pledge of the Net Revenues of the System have
been made and that the amounts on deposit in such special _
funds or accounts are the amounts then required to be on
deposit therein or (ii) the application of the proceeds
of sale'of such obligations then being issued will cure
any such deficiency.
0770662 -24-
ORDINANCE NO. 1362-9-95
(2)' The Additional Parity Bonds shall be scheduled
to mature or be payable as to principal on June 1 or
December 1 (or both) in each year the same are to be
outstanding or during the term thereof.
(3) The City has secured a certificate or opinion
of a Certified Public Accountant to the effect that,
according to the books and records of the City, the Net
Earnings for the last completed Fiscal Year, or for 12
consecutive months out of the 15 months, immediately
preceding the month the ordinance authorizing the
issuance of the Additional Parity Bonds is adopted are at
least equal to 1.20 times the Average Annual Debt Service
for all Outstanding Bonds Similarly Secured after giving
effect to the issuance of the Additional Parity Bonds
then being issued. In making a determination of the Net
Earnings, the Accountant may take into consideration a
change in the rates and charges for services and
facilities afforded by the System that became effective
at least sixty (60) days prior to the last day of the
period for which Net Earnings are determined and, for
purposes of satisfying the above Net Earnings test, make
a pro forma determination of the Net Earnings of the
System for the period of time covered by his
certification or opinion based on such change in rates
and charges being in effect for the entire period covered
by the Accountant's certificate or opinion.
i
As used in this Section, the term "Net Earnings" shall mean
the Gross Revenues of the System after deducting the Operating and
Maintenance Expenses of the System, but not depreciation charges or
other expenditures which, under generally accepted accounting
principles, should be treated as capital expenditures.
SECTION 19: Refunding Bonds. The City reserves the right to
issue refunding bonds to refund all or any part of the Bonds
Similarly Secured (pursuant to any law then available) upon such
terms and conditions as the City Council of the City may deem to be
in the best interest of the City and its inhabitants, and if less
than all such Bonds Similarly Secured then outstanding are
refunded, the conditions precedent prescribed (for the issuance of
Additional Parity Bonds) set forth in subparagraph (3) of
Section 18 hereof shall be satisfied and the Accountant's
certificate or opinion required in subparagraph (3) shall give
effect to the Debt Service of the proposed refunding bonds .(and
shall not give I effect to the Debt Service of the Bonds Similarly
Secured being refunded following their cancellation or provision
being made for their payment).
O,W2 -25-
OP0IMANCE NO. 1362-9-95
SECTION 20: Obligations of Inferior Lien and Pledge. The
City hereby reserves the right to issue obligations payable from
and secured by a lien on and pledge of the Net Revenues of the
System, junior and subordinate in rank and dignity to the lien and
pledge securing the payment of the Bonds Similarly Secured, as may
be authorized by the laws of the State of Texas.
SECTION 21: Rates and Charges. For the benefit of the
Holders of the Bonds and in addition to all provisions and
covenants in the laws of the State of Texas and in this Ordinance,
the City hereby expressly stipulates and agrees, while any of the
Bonds are Outstanding, to establish and maintain rates and charges
for facilities and services afforded by the System that are
reasonably expected, on the basis of available information and
experience and with due allowance for contingencies, to produce
Gross Revenues in each Fiscal Year sufficient:
(1) To pay Operating and Maintenance Expenses,
depreciation charges and replacement and betterment
costs,
(2) To produce Net Revenues sufficient to pay the
principal of and interest on the Bonds Similarly Secured
and the amounts required to be deposited in any reserve
or contingency fund created for the payment and security
of the Bonds Similarly Secured, and other obligations or
evidences of indebtedness issued or incurred that are
payable only from and secured solely by a lien on and
pledge of the Net Revenues of the System, and
(3) To produce Net Revenues equal to at least 1.20
times the annual Debt Service for the Fiscal Year on the
Outstanding Bonds Similarly Secured.
i
(4), To pay all other indebtedness payable from the
Net Revenues and/or secured by a lien on the properties
or the revenues of the System.
SECTION 22: Maintenance and Operation - Insurance. The City
shall maintain the System in good condition and operate the System
in an efficient manner and at reasonable cost. While any Bonds are
Outstanding, the City agrees to maintain casualty and other
insurance on the System of a kind and in an amount customarily
carried by municipal corporations owning and operating similar
properties. Nothing in this Ordinance shall be construed as
requiring the City to expend any funds derived from sources other
than the operation of the System, but nothing herein shall be
construed as preventing the City from doing so.
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OP.DINANCE NO. 1362-9-95
SECTION 23: Sale or Lease of Properties. The City, to the
extent and in the manner authorized by law, may sell or exchange
for consideration representing the fair value thereof, as
determined by the City Council of the City, any property not
necessary or required in the efficient operations of the System, or
any equipment; not necessary or useful in the operations thereof or
which is obsolete, damaged or worn out or otherwise unsuitable for
use in the operation of the System. The proceeds of any sale of
properties of the System shall be deposited in the System Fund.
SECTION 24: Records and Accounts. The City hereby covenants.
and agrees that so long as any of the Bonds are Outstanding, it
will keep and maintain separate and complete records and accounts
pertaining to the operations of the System in which complete and
correct entries shall be made of all transactions relating
thereto, as iprovided by Article 1113, V.A.T.C.S. or other
applicable law. The Holders of any Bonds or any duly authorized
agent or agents of such Holders shall have the right at all
reasonable times to inspect such records, accounts and data
relating thereto, and to inspect the System and all properties
comprising same. The City further agrees that 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:
(1) I A statement of the income and expenses of the
System for such Fiscal Year.
(2) 1 A balance sheet for the System as of the end of
such Fiscal Year.
(3) A statement describing the sources and
application of funds of the System for such Fiscal Year.
(4) IThe Accountant's comments regarding the -manner
in which the City has carried out the requirements of
this Ordinance and any other ordinance authorizing the
issuance of Additional Parity Bonds and his
recommendations for any changes or improvements in the
operations, records and accounts of the System.
1
(5) 'A list of insurance policies in force at the
end of the Fiscal Year covering the properties of the_
System, setting out as to each policy the amount thereof,
the risk covered, the name of the insurer and the
policy's expiration date.
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OVW62 -27-
OEDINANCE NO. 1362-9-95
Expenses incurred in making an annual audit of the operations
of the System are to be regarded as Operating and Maintenance
Expenses. Copies of each annual audit shall be furnished to the
Executive Director of the Municipal Advisory Council of Texas at
his office in Austin, Texas, and, upon request, to the initial
purchasers of the Bonds and subsequent 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.
SECTION 24: Special Covenants. The City further covenants
and agrees by and through this Ordinance as follows:
(1) It has the lawful power to pledge the Net
Revenues of the System to the payment of the Bonds to the
extent provided herein and has lawfully exercised said
power under the Constitution and laws of the State of
Texas, and that the Previously Issued Bonds, the Bonds
issued hereunder, together with the Additional Parity
Bonds, shall be ratably secured in such manner that no
one bond shall have preference over any other bond of
said issues.
1
(2 ) The Net Revenues of the System have not been in
any manner pledged or encumbered to the payment of any
debt orlobligation of the City or the System, save and
except for the Previously Issued Bonds and the Bonds.
(3) No free services of the System shall be
allowed, and should the City or any of its agents or
instrumentalities make use of the services and facilities
of the System, payment of the reaecnable value thereof
shall be made by the City out of funds from sources other
than the revenues and income of the System.
(4) To the extent that it legally may and while any
of the Bonds are Outstanding, no franchise shall be
granted for the installation or operation of any
competing waterworks or sewer system facilities.
(5) The City will comply with all of the terms and
conditions of any and all franchises, permits and
authorizations applicable to or necessary with respect to
the ownership and operation of municipal facilities for
the supply and distribution of potable water and the
collection, treatment and disposal of water-carried-
wastes,l and which have been obtained- from any
governmental agency; and the City has or will obtain and
keep inifull force and effect all franchises, permits,
authorizations and other requirements applicable to or
necessary with respect to the acquisition, construction,
az70662 1 -28-
ORDLNANCE NO. 1362-9-95
equipment, operation and maintenance of such properties
and facilities.
SECTION 26: Remedy in Event of Default. In addition to all
rights and remedies provided by the laws of the State of Texas, the
City covenants and agrees particularly that in the event the City
(a) defaults :in payments to be made to the Bond Fund or the Reserve
Fund as required by this Ordinance or (b) defaults in the
observance or performance of any other of the covenants, conditions
or obligations set forth in this Ordinance, the Holders of any of
the Bonds shall be entitled to a writ of mandamus issued by a court
of proper jurisdiction, compelling and requiring the City and its
officers to observe and perform any covenant, condition or
obligation prescribed in this Ordinance. No delay or omission to
exercise any right or power accruing upon any default shall impair
any such right or power, or shall be construed to be a waiver of
any such default or acquiescence therein, and every such right and
power may be I exercised from time to time and as often as may be
deemed expedient.
The specific remedy herein provided shall be cumulative of all
other existing remedies and the specification of such remedy shall
not be deemed to be exclusive.
SECTION 27: Special Obligations. The Bonds are special
obligations of the City payable from the pledged Net Revenues of
the System and the Holders thereof shall never have the right to
demand payment thereof out of funds raised or to be raised by
taxation.
SECTION 28: _Satisfaction of Obligation of City. If the City
shall pay or cause to be paid, or there shall otherwise be paid to
the Holders, the principal of, premium, if any, and interest on the
Bonds, at the times and in the manner stipulated in this•Ordinance,
then the pledge of the Net Revenues of the System under this
Ordinance and all other obligations of the City to the Holders
shall thereupon cease, terminate, and become void and be discharged
and satisfied.
Bonds or any principal amount(s) thereof shall be deemed to
have been paid within the meaning and with the effect expressed
above in this Section when (i) money sufficient to pay in full such
Bonds or the principal amount(s) thereof at maturity or to the
redemption date therefor, together with all interest due thereon,
shall have been irrevocably deposited with and held in trust by the
Paying Agent/Registrar, or an authorized escrow agent, or
(ii) non -callable 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
OV06162 1 -29-
ORDINANCE NO. 1362-9-95
principal and interest in such amounts and at such times as will
insure the availability, without reinvestment, of sufficient money,
together with any moneys deposited therewith, if any, to pay when
due the principal of and interest on such Bonds, or the principal
amount(s) thereof, on and prior to the Stated Maturity thereof or
(if notice of redemption has been duly given or waived or if
irrevocable arrangements therefor acceptable to the Paying
Agent/Registrar have been made) the redemption date thereof. The
City covenants that no deposit of moneys or Government Obligations
will be made 'under this Section and no use made of any such deposit
which would cause the Bonds to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Internal Revenue Code of
1986, as amended, or regulations adopted pursuant thereto.
I
Any moneys so deposited with the Paying Agent/ Registrar, or
an authorized escrow agent, and all income from Government
Obligations held in trust by the Paying Agent/Registrar or an
authorized escrow agent, pursuant to this Section which is not
required for;the payment of the Bonds, or any principal amount(s)
thereof, or interest thereon with respect to which such moneys have
been so deposited shall be remitted to the City or deposited as
directed by the City. Furthermore, any money held by the Paying
Agent/Registrar for the payment of the principal of and interest on
the Bonds and remaining unclaimed for a period of four (4) 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 I the request of the City, be remitted to the City
against a written receipt therefor. Notwithstanding the above and
foregoing, any remittance of funds from the Paying Agent/Registrar
to the City shall be subject to any applicable unclaimed property
laws of the 'State of Texas.
i
SECTION 29: Ordinance a Contract - Amendments. This
Ordinance shall constitute a contract with the Holders from time to
time, be binding on the City, and shall not be amended or repealed
by the City so long as any Bond remains Outstanding except as
permitted in this Section. The City, may, without the consent of
or notice to' any Holders, from time to time and at any time, amend
this Ordinance in any manner not detrimental to the interests of
the Holders, including the curing of any ambiguity, inconsistency,
or formal defect or omission herein. In addition, the City may,
with the written consent from the owners holding a majority in
aggregate principal amount of the Bonds Similarly Secured then
Outstanding laf f ected thereby, amend, add to, or rescind any of the
provisions of this Ordinance; provided that, without the written
consent of all Holders of Outstanding Bonds, no such amendment,
addition, or rescission shall (1) extend the time or times of
payment of Ithe 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
ozross2 i
-30-
OP,DINANCE NO. 1362-9-95
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 Bonds Similarly Secured, as the case may be, required
to be held for consent to any such amendment, addition, or
rescission.
SECTION 1130: Mutilated - Destroyed - Lost and Stolen Bonds.
In case any Bond shall be mutilated, or destroyed, lost or stolen,
the Paying Agent/Registrar may execute and deliver a replacement
Bond of like: form and tenor, and in the same denomination and
bearing a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Bond, or in lieu of and in
substitution for such destroyed, lost or stolen Bond, only upon the
approval of the City and after (i) the filing by the Holder thereof
with the Paying Agent/ Registrar of evidence satisfactory to the
Paying Agent/ Registrar of the destruction, loss or theft of such
Bond, and of the authenticity of the ownership thereof and (ii) the
furnishing to' the Paying Agent/Registrar of indemnification in an
amount satisfactory to hold the City and the Paying Agent/Registrar
harmless. All expenses and charges associated with such indemnity
and with the .preparation, execution and delivery of a replacement
Bond shall be borne by the Holder of the Bond mutilated, or
destroyed, lost or stolen.
Every new Bond issued pursuant to this Section in lieu of any
mutilated, destroyed, lost, or stolen Bond shall constitute a
replacement o�f the prior obligation of the City, whether or not the
mutilated, destroyed, lost, or stolen Bond shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of
this Ordinance equally and ratably with all other Outstanding
Bonds.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement and payment of mutilated, destroyed,
lost, or stolen Bonds.
SECTION 31: Notices to Holders -Waiver. Wherever this
Ordinance provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and sent by United States Mail, first class
postage prepaid, to the address of each Holder as it appears in the
Security Register.
In any case where notice to Holders is given by mail, neither
the failure to mail such notice to any particular Holders, nor any
defect in any notice so mailed, shall affect the sufficiency of
such notice with respect to all other Bonds. Where this Ordinance
provides for notice in any manner, such notice may be waived in
OV0662 1 -31-
0-RDMIANCE ?40. 1362-9-95
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 32: Cancellation. All Bonds surrendered for payment,
redemption, transfer or exchange, if surrendered to the Paying
Agent/Registrar, shall be promptly cancelled by it and, if
surrendered to the City, shall be delivered to the Paying
Agent/Registrar and, if not already cancelled, shall be promptly
cancelled by the Paying Agent/Registrar. The City may at any time
deliver to the Paying Agent/Registrar for cancellation any Bonds
previously certified or registered and delivered which the City may
have acquired�in any manner whatsoever, and all Bonds so delivered
shall be promptly cancelled by the Paying Agent/ Registrar. All
cancelled Bords held by the Paying Agent/Registrar shall be
destroyed as directed by the City.
SECTION 33: Covenants to. Maintain Tax -Exempt Status. (a)
Definitions. When used in this Section 33, the following terms
have the following meanings:
"Closing Date" means the date on which the Bonds are
first authenticated and delivered - to the initial
purchasers against payment therefor.
"Code" means the Internal Revenue Code of 1986, as
amended by all legislation, if any, effective on or
before the Closing Date. i
"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.
O,O"2 -32-
ORDINANCE NO. 1362-9-95
"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 finaltIncome Tax Regulation designed to supplement,
amend or replace the specific Regulation referenced.
"Yield" of (1) any Investment has the meaning set
forth in!Section 1.148-5 of the Regulations and (2) the
Bonds has the meaning set forth in Section 1.148-4 of the
Regulations.
(b) Not!to Cause Interest to Become Taxable. The City shall
not use, permit the use of, or omit to use Gross Proceeds or any
other amounts (or any property the acquisition, construction or
improvement of which is to be financed directly or indirectly with
Gross Proceeds) in a manner which if made or omitted, respectively,
would cause the interest on any Bond to become includable in the
gross income, l 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 Pavments. 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)i 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
O,O"z -33-
ORDINANCE NO. 1362-9-95
(2) not directly or indirectly impose or accept any
charge or other payment by any person or entity who is
treated as using Gross Proceeds of the Bonds or any
property'the acquisition, construction or improvement of
which is to be financed or refinanced directly or
indirectly with such Gross Proceeds, other than taxes of
general application within the City or interest earned on
investments acquired with such Gross Proceeds pending
application for their intended purposes.
(d) No Private Loan. Except to the extent permitted by
section 141 of the Code and the Regulations and rulings thereunder,
the City shall not use Gross Proceeds of the Bonds to make or
finance loans!to any person or entity other than a state or local
government. For purposes of the foregoing covenant, such Gross
Proceeds are considered to be "loaned" to a person or entity if:
(1) property acquired, constructed or improved with such Gross
Proceeds is sold or leased to such person or entity in a
transaction which creates a debt for federal income tax purposes;
(2) capacity in or service from such property is committed to such
person or entity under a take -or -pay, output or similar contract or
arrangement; or (3) indirect benefits, or burdens and benefits of
ownership, of such Gross Proceeds or any property acquired,
constructed or improved with such Gross Proceeds are otherwise
transferred in a transaction which is the economic equivalent of a
loan.
(e) Not to Invest at Higher Yield. Except to the extent
permitted by section 148 of the Code and the Regulations and
rulings thereunder, the City shall not: at any time prior to the
final Stated IMaturity of the Bonds directly or indirectly invest
Gross Proceeds in any Investment (or use Gross Proceeds to replace
money so invested), if as a result of such investment the Yield
from the Closing Date of all Investments acquired with Gross
Proceeds (or with money replaced thereby), whether then held or
previously disposed of, exceeds the Yield of the Bonds.
(f) Not Federally Guaranteed. Except to the extent permitted
by section 149(b) of the Code and the Regulations and rulings
thereunder, the City shall not take or omit to take any action
which would cause the Bonds to be federally guaranteed within the
meaning of section 149(b) of the Code and the Regulations and
rulings thereunder.
(g) Information Report. The City shall timely file the
information required by section 149(e) of the Code with the
Secretary ofIthe Treasury on Form 8038-G or such other form and in
such place as the Secretary may prescribe.
MOM 1 -34-
ORDINANCE NO. 1362-9-95
(h) Rebate. The City warrants and represents that it
satisfies 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 warrants and represents that
(1) ithe City is a governmental unit with general
taxing powers;
(2) fat least 95% of the Gross 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 in which the Bonds are issued 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
1995 calendar year which would cause the total face amount of tax
exempt obligations issued and incurred 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 rebate any "arbitrage profits"
to the United States as required by Section 148(f) of the Code.
(i) Elections. The City hereby directs and authorizes the
Mayor, City Manager, Finance Director and City Secretary, either
individually or jointly, to make elections permitted or required
pursuant to the provisions of the Code or the Regulations, as they
deem necessary or appropriate in connection with the Bonds, in the
Certificate as to Tax Exemption or similar or other appropriate
certificate, form or document.
SECTION 314: Qualified Tax Exempt Obligations. In
accordance with the provisions of paragraph (3) of subsection (b)
of Section 2651of the Code, the City hereby designates the Bonds
to be "qualified tax exempt obligations" in that the Bonds are not
"private activity bonds" as defined in the Code and the reasonably
anticipated amount of "qualified tax exempt obligations" to be
issued by the 'City (including all subordinate entities of the
City) for the ialendar year 1995 will not exceed $10,000,000.
SECTION 35: Sale of Bonds. Pursuant to a public sale for
the Bonds, the I bid submitted by William R. Hough & Company and
associates (herein referred to as the "Purchasers") is declared to
be the best bid received producing the lowest true interest cost
rate to the City, and the sale of the Bonds to said Purchasers at
0270662 -35-
ORDINANCE NO. 1362-9-95
the price of par and accrued interest to the date of delivery,
plus a premium of $0.00, 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.
I
SECTION 36: Control and Custody of Bonds. The Mayor of the
City shall be and is hereby authorized to take and have charge of
all necessary orders and records pending investigation by the
Attorney General of the State of Texas, including the printing and
supply of definitive Bonds, and shall take and have charge and
control of the Initial Bond(s) pending the approval thereof by the
Attorney General, the registration thereof by the Comptroller of
Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Mayor, City Secretary, City Manager and
Finance Director, any one or more of said officials, are hereby
authorized and directed to furnish and execute such documents and
certifications relating to the City and the issuance of the Bonds,
including certifications as to facts, estimates, circumstances and
reasonable expectations pertaining to the use, expenditure and
investment of the proceeds of the Bonds, as may be necessary for
the approval of the Attorney General, their registration by the
Comptroller of Public Accounts and the delivery of the Bonds to
the Purchasers, and, together with the City's financial advisor,
bond counsel and the Paying Agent/ Registrar, make the necessary
arrangements for the delivery of the Initial Bond(s) to the
Purchasers and the initial exchange thereof for definitive Bonds.
SECTION 37: Official Statement. The Official Statement,
together with all amendments and supplements thereto issued on
behalf of the City, prepared in the initial offering and sale of
the Bonds by the City is hereby approved as to form and content
and the City Council hereby finds that the information and data
contained in said Official Statement pertaining to the City 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 use
of such Official Statement in the reoffering of the Bonds by the
Purchasers is hereby approved and authorized.
SECTION 38: 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 maintained at the City's depository bank. Pending
expenditure for authorized projects and purposes, such proceeds of
sale may be invested in authorized investments and any investment
earnings realized shall be expended for such authorized projects
and purposes or deposited in the Bond Fund as shall be determined
02,0"2 -36-
ORDINILKKE N0. 1362-9-95
Accrued interest received from the Purchasers as well as all
surplus proceeds of sale of the Bonds, including investment
earnings, remaining after completion of all authorized projects or
purposes shall be deposited to the credit of the Bond Fund.
SECTION 39: 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 40: CUSIP Numbers. CUSIP numbers may be printed or
typed on the definitive Bonds. It is expressly provided, however,
that the presence or absence of CUSIP numbers on the definitive
Bonds shall be of no significance or effect as regards the
legality thereof and neither the City nor attorneys approving
said Bonds as to legality are to be held responsible for CUSIP
numbers incorrectly printed or typed on the definitive Bonds.
SECTION 41: Benefits of Ordinance. Nothing in this
Ordinance, expressed or implied, is intended or shall be construed
to _confer upon any person other than the City, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim,
legal or equitable, under or by reason of this Ordinance or any
provision hereof, this Ordinance and all its provisions being
intended to be and being for the sole and exclusive benefit of the
City, the Paying Agent/Registrar and the Holders.
SECTION 42: Inconsistent Provisions. All ordinances, orders
or resolutions, or parts thereof, which are in conflict or
inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict and the provisions of this
Ordinance shall be and remain controlling as to the matters
contained herein.
SECTION 43: Governing Law. This Ordinance shall be
construed and enforced in accordance with the laws of the State of
Texas and the United States of America.
SECTION 44: Severability. If any provision of this
Ordinance or the application thereof to any circumstance shall be
held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be
valid, and the Council hereby declares that this Ordinance would
have been enacted without such invalid provision.
OVON2 -37-
ORDINANCE 140. 1362-9-95
SECTION 45: Construction of Terms. If appropriate in the
context of this Ordinance, words of the singular number shall be
considered to include the plural, words of the plural number shall
be considered to include the singular, and words of the masculine,
feminine or neuter gender shall be considered to include the other
genders.
SECTION 46: 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.
time. "Rule" means SEC Rule 15c2-12, as amended from time to
"SEC" means the United States Securities and Exchange
Commission.
"SID" means any person designated by the State of Texas
or an authorized department, officer, or agency thereof as, and
determined by the SEC or its staff to be, a state information
depository within the meaning of the Rule from time to time.
(b) Annual Reports: The City shall provide annually to each
NRMSIR and any SID, within six months after the end of each fiscal
year (beginning with the fiscal year ending September 30, 1996)
financial information and operating data with respect to the City
of the general type included in the final Official Statement
approved by Section 37 of this Ordinance, being the information
described in Exhibit B hereto. Financial statements to be
provided shall be (1) prepared in accordance with the accounting
principles described in Exhibit B hereto and (2) audited, if the
City commissions an audit of such statements and the audit is
completed within the period during which they must be provided.
If audited financial statements are not so provided, then the City
shall provide audited financial statements for the applicable
fiscal year to each NRMSIR and any SID, when and if audited
financial statements become available.
If the City changes its fiscal year, it will notify each
NRMSIR and any SID of the change (and of the date of the new
fiscal year end) prior to the next date by which the City
otherwise would be required to provide financial information and
operating data pursuant to this Section.
0T70662 -38-
OP.DII��iCE NO. 1362-9-95
The financial information and operating data to be
provided pursuant to this Section may be set forth in full in one
or more documents or may be included by specific reference to any
document (including an official statement or other offering
document, if it is available from the MSRB) that theretofore has
been provided to each NRMSIR and any SID or filed with the SEC.
(c) Material Event Notices. The City shall notify any SID
and either each NRMSIR or the MSRB, in a timely manner, of any of
the following events with respect to the Bonds, if such event is
material within the meaning of the federal securities laws:
1. Principal and interest payment delinquencies;
2. Non-payment related defaults;
3. Unscheduled draws on debt service reserves
reflecting financial difficulties;
4. Unscheduled draws on credit enhancements reflecting
financial difficulties;
5. Substitution of credit or liquidity providers, or
their failure to perform;
6. Adverse'tax.opinions or events affecting the tax-
exempt status of the Bonds;
7. Modifications to rights of holders of the Bonds;
8. Bond calls;
9. Defeasances;
10. Release, substitution, or sale of property securing
repayment of the Bonds; and
11. Rating changes.
The City shall notify any SID and either each NRMSIR or
the MSRB, in a timely manner, of any failure by the City to
provide financial information or operating data in accordance with
subsection (b) of this Section by the time required by such
Section.
(d) Limitations, Disclaimers, and Amendments. The City
shall be obligated to observe and perform the covenants specified
in this Section while, but only while, the City remains an
"obligated person" with respect to the Bonds within the meaning of
the Rule, except that the City in any event will give the notice
OVO"2 -39-
0 DINANCE NO. 1362-9-95
required by subsection (c) hereof of any Bond calls and defeasance
that cause the City to be no longer such an "obligated person."
The provisions of this Section are for the sole benefit
of the Holders and beneficial owners of the Bonds, and nothing in
this Section, express or implied, shall give any benefit or any
legal or equitable right, remedy, or claim hereunder to any other
person. The City undertakes to provide only the financial
information, operating data, financial statements, and notices
which it has expressly agreed to provide pursuant to this Section
and does not hereby undertake to provide any other information
that may be relevant or material to a complete presentation of the
City's financial results, condition, or prospects or hereby
undertake to update any information provided in accordance with
this Section or otherwise, except as expressly provided herein.
The City does not make any representation or warranty concerning
such information or its usefulness to a decision to invest in or
sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE
HOLDER OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN
CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM
ANY BREACH BY THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS
PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT
AND REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON
ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED TO. AN ACTION FOR
MANDAMUS OR SPECIFIC PERFORMANCE.
No default by the City in observing or performing its
obligations under this Section shall constitute a breach of or
default under this Ordinance for purposes of any other provision
of this Ordinance.
Nothing in this Section is intended or shall act to
disclaim, waive, or otherwise limit the duties of the City under
federal and state securities laws.
The provisions of this Section may be amended by the
City from time to time to adapt to changed circumstances resulting
from a change in legal requirements, a change in law, or a change
in the identity, nature, status, or type of operations of the
City, but only if (1) the provisions of this Section, as so
amended, would have permitted an underwriter to purchase or sell
Bonds in the primary offering of the Bonds in compliance with the
Rule, taking into account any amendments or interpretations of. the
Rule to the date of such amendment, as well as such changed
circumstances, and (2) either (a) the Holders of a majority in
aggregate principal amount (or any greater amount required by any
other provision of this Ordinance that authorizes such an
amendment) of the Outstanding Bonds consent to such amendment or
M0662 -40-
ORDINANCE NO. 1362-9-95
(b) a Person that is unaffiliated with the City (such as
nationally recognized bond counsel) determines that such amendment
will not materially impair the interests of the Holders and
beneficial owners of the Bonds. If the City so amends the
provisions of this Section, it shall include with any amended
financial information or operating data next provided in
accordance with subsection (b) 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 47: Public Meeting. It is officially found,
determined, and declared that the meeting at which this Ordinance
is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered
at such meeting, including this Ordinance, was given, all as
required by V.T.C.A., Government Code, Chapter 551, as amended.
SECTION 48: Effective Date. This Ordinance shall take
effective immediately upon its passage and adoption on the date
shown below.
PASSED AND ADOPTED, this September 21, 1995.
ATTEST:
MM'.4 -11,
(City Seal)
CITY OF ALLEN, TEXAS
4(`
i1-9
A
-
ORDINANCE NO. 1362-9-95
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
V THIS AGREEMENT entered into as of September 21, 1995 (this
"Agreement"), by and between the City of Allen, Texas (the
"Issuer"), and Texas Commerce Bank National Association, a banking
association duly organized and existing under the laws of the
United States of America, (the "Bank").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the
execution and delivery of its "City of Allen, Texas, Waterworks
and Sewer System Revenue Bonds, Series 1995" (the "Securities"),
dated September 1, 1995, and such Securities are to be delivered
to the initial purchasers on or about October 26, 1995; 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.
0276902
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 for the first year of this Agreement and thereafter the
fees and amounts set forth in the Bank's current fee schedule then
in effect for services as Paying Agent/Registrar for
municipalities, which shall be supplied to the Issuer on or before
90 days prior to the close of the Fiscal Year of the Issuer, and
shall be effective upon the first day of the following Fiscal
Year.
In addition, the Issuer agrees to reimburse the Bank upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Bank in accordance with any of the
provisions hereof (including the reasonable compensation and the
expenses and disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
"Acceleration Date" on any Security means the date on
and after which the principal or any or all installments of
interest, or both, are due and payable on any Security which
has become accelerated pursuant to the terms of the Security.
"Bank Office" means the principal offices of the Bank
located at the address appearing on page 11 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.
-2-
"Issuer Request" and "Issuer Order" means a written
request or order signed in the name of the Issuer by the
Mayor, City Secretary, City Manager or Finance Director, any
one or more of said officials, and delivered to the Bank.
"Legal Holiday" means a day on which the Bank is
required or authorized to be closed.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision of a government.
"Predecessor Securities" of any particular Security
means every previous Security evidencing all or a portion of
the same obligation as that evidenced by such particular
Security (and, for the purposes of this definition, any
mutilated, lost, destroyed, or stolen Security for which a
replacement Security has been registered and delivered in
lieu thereof pursuant to Section 4.06 hereof and the
Resolution).
"Redemption Date" when used with respect to any Security
to be redeemed means the date fixed for such redemption
pursuant to the terms of the Bond Resolution.
"Responsible Officer" when used with respect to the Bank
means the Chairman or Vice -Chairman of the Board of
Directors, the Chairman or Vice -Chairman of the Executive
Committee of the Board of Directors, the President, any Vice
President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any
Assistant Cashier, any Trust Officer or Assistant Trust
Officer, or any other officer of the Bank customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Security Register" means a register maintained by the
Bank on behalf of the Issuer providing for the registration
and transfers of Securities.
"Stated Maturity" means the date specified in the Bond
Resolution the principal of a Security is scheduled to be due
and payable.
0278402 -$
Section 2.02. Other Definitions. The terms "Bank,"
"Issuer," and "Securities (Security)" have the meanings assigned
to them in the recital paragraphs of this Agreement.
The term "Paying Agent/Registrar" refers to the Bank in the
performance of the duties and functions of this Agreement.
ARTICLE THREE
PAYING AGENT
Section 3.01. Duties of Paying Agent. As Paying Agent, the
Bank shall, provided adequate collected funds have been provided
to it for such purpose by or on behalf of the Issuer, pay on
behalf of the Issuer the principal of each Security at its Stated
Maturity, Redemption Date, or Acceleration Date, to the Holder
upon surrender of the Security to the Bank Office.
As Paying Agent, the Bank shall, provided adequate collected
funds have' been provided to it for such purpose by or on behalf of
the Issuer, pay on behalf of the Issuer 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
0278402 -4-
Issuer and Bank may prescribe. All transfers, exchanges and
replacement of Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of
transfer, the signature on which has been guaranteed by an officer
of a federal or state bank or a member of the National Association
of Securities Dealers, in form satisfactory to the Bank, duly
executed by the Holder thereof or his agent duly authorized in
writing.
The Bank may request any supporting documentation it feels
necessary to effect a re -registration, transfer or exchange of the
Securities.
To the extent possible and under reasonable circumstances,
the Bank agrees that, in relation to an exchange or transfer of
Securities, the exchange or transfer by the Holders thereof will
be completed and new Securities delivered to the Holder or the
assignee of the Holder in not more than three (3) business days
after the receipt of the Securities to be cancelled in an exchange
or transfer and the written instrument of transfer or request for
exchange duly executed by the Holder, or his duly authorized
agent, in form and manner satisfactory to the Paying
Agent/Registrar.
Section 4.02. Certificates. The Issuer shall provide an
adequate inventory of printed Securities to facilitate transfers
or exchanges thereof. The Bank covenants that the inventory of
printed Securities will be kept in safekeeping pending their use
and reasonable care will be exercised by the Bank in maintaining
such Securities in safekeeping, which shall be not less than the
care maintained by the Bank for debt securities of other
governments or corporations for which it serves as registrar, or
that is maintained for its own securities.
Section 4.03. Form of Security Register. The Bank, as
Registrar, will maintain the Security Register relating to the
registration, payment, transfer and exchange of the Securities in
accordance with the Bank's general practices and procedures in
effect from time to time. The Bank shall not be 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.
0276402 -5-
Section 4.04. List of Security Holders. The Bank will
provide the Issuer at any time requested by the Issuer, upon
payment of the required fee, a copy of the information contained
in the Security Register. The Issuer may also inspect the
information contained in the Security Register at any time the
Bank is customarily open for business, provided that reasonable
time is allowed the Bank to provide an up-to-date listing or to
convert the information into written form.
The Bank will not release or disclose the contents of the
Security Register to any person other than to, or at the written
request of, an authorized officer or employee of the Issuer,
except upon receipt of a court order or as otherwise required by
law. Upon receipt of a court order and prior to the release or
disclosure of the contents of the Security Register, the Bank will
notify the Issuer so that the Issuer may contest the court order
or such release or disclosure of the contents of the Security
Register.
Section 4.05. Return of Cancelled Certificates. The Bank
will, at such reasonable intervals as it determines, surrender to
the Issuer, Securities in lieu of which or in exchange for which
other Securities have been issued, or which have been paid.
Section 4.06. Mutilated, Destroyed, Lost or Stolen Securi-
ties. The Issuer hereby instructs the Bank, subject to the
provisions of Section 30 of the Bond Resolution, to deliver and
issue Securities in exchange for or in lieu of mutilated,
destroyed, lost, or stolen Securities as long as the same does not
result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost
or stolen, the Bank may execute and deliver a replacement Security
of like form and tenor, and in the same denomination and bearing
a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in
substitution for such destroyed, lost or stolen Security, only
upon the approval of the Issuer and after (i) the filing by the
Holder thereof with the Bank of evidence satisfactory to the Bank
of the destruction, loss or theft of such Security, and of the
authenticity of the ownership thereof and (ii) the furnishing to
the Bank of indemnification in an amount satisfactory to hold the
Issuer and the Bank harmless. All expenses and charges associated
with such indemnity and with the preparation, execution and
delivery of a replacement Security shall be borne by the Holder of
the Security mutilated, or destroyed, lost or stolen.
Section 4.07. Transaction Information to Issuer. The Bank
will, within a reasonable time after receipt of written request
from the Issuer, furnish the Issuer information as to the
0276402 -6-
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.
(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
0276402 -7'
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 fiduciary account shall be made by check
drawn on such fiduciary account unless the owner of such
Securities shall, at its own expense and risk, request such other
medium of payment.
The Bank shall be under no liability for interest on any
money received by it hereunder.
Subject to the applicable unclaimed property laws of the
State of Texas, any money deposited with the Bank for the payment
of the principal, premium (if any), or interest on any Security
and remaining unclaimed for four years after final maturity of the
Security has become due and payable will be paid by the Bank to
the Issuer, and the Holder of such Security shall thereafter look
only to the Issuer for payment thereof, and all liability of the
Bank with respect to such moneys shall thereupon cease.
0276402 'o'
Section 5.06. Indemnification. To the extent permitted by
law, the Issuer agrees to indemnify the Bank for, and hold it
harmless against, any loss, liability, or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with its acceptance or administration of its duties
hereunder, including the cost and expense against any claim or
liability in connection with the exercise or performance of any of
its powers or duties under this Agreement.
Section 5.07. Interpleader. The Issuer and the Bank agree
that the Bank may seek adjudication of any adverse claim, demand,
or controversy over its person as well as funds on deposit, in
either a Federal or State District Court located in the State and
County where 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 parties hereto.
Section 6.02. Assignment. This Agreement may not be
assigned by either party without the prior written consent of the
other.
Section 6.03. Notices. Any request, demand, authorization,
direction, notice, consent, waiver, or other document provided or
permitted hereby to be given or furnished to the Issuer or the
Bank shall be mailed or delivered to the Issuer or the Bank,
respectively, at the addresses shown on page 11.
0276402 -9-
Section 6.04.
headings herein are
construction hereof.
Effect of Headings. The Article and Section
for convenience only and shall not affect the
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.
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.
0278402 -10-
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.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
BY e�z� Z��-
Title:
[SEAL]
Attest:
Mailing Address:
Title: dip` Corporate Trust Department
P. 0. Box 660197
Dallas, Texas 75266-0197
(CITY SEAL)
Attest:
Delivery Address:
Corporate Trust Department
2200 Ross Avenue, 5th Floor
Dallas, Texas 75201
CITY OF ALLEN, TEXAS
BY - 7f
M yor
Address: One Butler Circle
Allen, Texas 75002
OVW2 -11-
ANNEX "A"
SCHEDULE OF FEES FOR
PAYING AGENT/REGISTRAR SERVICES
BOOK ENTRY ONLY ISSUES
SCHEDULE OF FEES
Texas Commerce Bank National Association offers you the expertise, strength, and support of a multi-
billion dollar bank holding company.
Through our commitment to excellence and controlled growth philosophy, we can assure you a
consistently high level of service and responsiveness.
ACCEPTANCE FEE:
This fee is based on the administrative time
utilized in meeting with parties involved,
reviewing and finalizing agreement, attending
closing and establishing records.
♦ Acceptance Fee: See
Below
ANNUAL ADMINISTRATION FEE:
Annual Fee
Below
$043,000,000
$3,000,00145,000,000
$5,000,001410,000,000
See
Chart
REIMBURSABLE CHARGES:
All out-of-pocket expense for professional
services (such as attorneys and accountants),
postage, courier services, insurance, stationery,
telephone, travel to closing, etc. will be billed at
cost.
EXTRAORDINARY SERVICES:
Services not anticipated, but deemed necessary
or desirable by the customer will be subject to
additional charges based on costs incurred and
Chart time spent.
Initial Annual
$150 $350
$150 $300
$150 $275
A $10.00 charge per check will be assessed for
disbursement of cost of issuance by the Paying
Agent.
$10,000,001 -Above $150 $200
♦ Payable at Closing
These fees assume retention by the Paying Agent of the float on uninvested funds held in
accounts by the Paying Agent.
Any revision of the scheduled fees shall be supplied to the Issuer on or before 90 days prior to
the close of the fiscal year of the Issuer, and shall be effective upon the first day of the following
fiscal year.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
P. O. Box 2320
Dallas, Tx 75221
(214) 712-3460
Effective 7/1/91
ORDRaNCE NO. 1362-9-95
Exhibit B
to
Ordinance
_DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 46
of this Ordinance.
Annual Financial statements and Operating Data
The financial information and operating data with
respect to the City to be provided annually in accordance with
such Section are as specified (and included in the Appendix or
under the headings of the Official Statement referred to) below:
1. The portions of the financial statements of the
City appended to the Official Statement as Appendix B, but
for the most recently concluded fiscal year.
2. The amount of gross and net bond debt outstanding
as of the end of the most recently concluded fiscal year,
presented under "Revenue Bond Debt Data".
3. "Selected Financial and System Information".
Accounting Principles
The accounting principles referred to in such Section
are the accounting principles descrit)ed in the notes to the
financial statements referred to in paragraph 1 above
0270662
AFFIDAVIT AND PROOF OF PUBLICATION
THE STATE OF TEXAS
COUNTY OF COLLIN
BEFORE ME, the undersigned authority, on this day personally
appeared DEBBIE TACKETT, who having been by me duly sworn,
on oath deposes and says:
That she is the General Manager of THE ALLEN AMERICAN, a
newspaper published in COLLIN COUNTY, TEXAS, not less frequently than
once a week, having a general circulation in said county, and having been
published regularly and continously for more than twelve (12) months
prior to publishing
$4,100.
of which the attached is a true and written copy, and which was published
in THE ALLEN AMERICAN on
September 2 & September 9, 1995
and which was issued on
September 2, 1995
by City of Allen of COLLIN COUNTY, TEXAS
A printed copy of said publication is attached hereto.
SUBSC IBED AN RN to before me this
day. A.D. 19_fS
NOTARY PUBLIC in and for COLLIN COUNTY, TEXAS
Publisher's fee S 3 6 . 0
V. A. TODD
W COLIMISSION EXNAES
Decomber 5, 1986
NOTICE OF INTENTION TO ISSUE
CITY OF ALLEN, TEXAS,
REVENUE BONDS
NOTICE IS HEREBY GIVEN that the City
Council of the City of Allen, Texas, shall
convene at 7:30 p.m. on the 21st day of
September, 1995, at its regular meeting
place in the City Hall, One Butler Circle,
Allen, Texas, and during such meeting, the
Council will consider the passage of an
ordinance authorizing the issuance of re-
venue bonds in a principal amount not to
exceed $4,100,000 for the purpose of mak-
ing improvements and extensions to the
City's combined Waterworks and Sewer
System. Such revenue bonds shall mature
not later than December 31, 2035 and bear
interest at such rate or rates (not to exceed
15% per annum) as determined by the City
Council. Such bonds shall be payable sol-
ely from and equally secured by a lien on
and pledge of the net revenues of the City's
combined Waterworks and Sewer System.
The holder of such bonds shall never have
the right to demand payment out of any
funds raised or to be raised by taxation.
This notice is issued pursuant to authority
and direction of the City Council of the City
of Allen, Texas, and in accordance with the
provisions of Article 2368a, V.A.T.C.S.
/s/ Judy Morisson, CMC, CITY SECRET-
ARY
NOTICE OF INTENTION TO ISSUE
CITY OF ALLEN, TEXAS,
REVENUE BONDS
NOTICE IS HEREBY GIVEN that the City
Council of the City of Allen, Texas, shall
convene at 7:30 p.m. on the 21st day of
September, 1995, at its regular meeting
place in the City Hall, One Butler Circle,
Allen, Texas, and during such meeting, the
Council will consider the passage of an
ordinance authorizing the issuance of re-
venue bonds in a principal amount not to
exceed $4,100,000 for the purpose of mak-
ing improvements and extensions to the
City's combined Waterworks and Sewer
System. Such revenue bonds shall mature
not later than December 31, 2035 and bear
interest at such rate or rates (not to exceed
15% per annum) as determined by the City
Council. Such bonds shall be payable sol-
ely from and equally secured by a lien on
and pledge of the net revenues of the City's
combined Waterworks and Sewer System.
The holder of such bonds shall never have
the right to demand payment out of any
funds raised or to be raised by taxation.
This notice is issued pursuant to authority
and direction of the City Council of the City
of Allen, Texas, and in accordance with the
provisions of Article 2368a, V.A.T.C.S.
/s/ Judy Morisson, CMC, CITY SECRET-
ARY
AFFIDAVIT AND PROOF OF PUBLICATION
THE STATE OF TEXAS
COUNTY OF COLLIN
BEFORE ME, the undersigned authority, on this day personally
appeared DEBBIE TACKETT, who having been by me duly sworn,
on oath deposes and says:
That she is the General Manager of THE ALLEN AMERICAN, a
newspaper published in COLLIN COUNTY, TEXAS, not less frequently than
once a week, having a general circulation in said county, and having been
published regularly and continously for more than twelve (12) months
prior to publishing
Ordinance #1362-9-95
of which the attached is a true and written copy, and which was published
in THE ALLEN AMERICAN on
September 27 & September 30, 1995
and which was issued on
September 27,1995
by City of Allen of COLLIN COUNTY, TEXAS
A printed copy of said publication is attached hereto.
0/ t1�;7 —/
SUB CRIBED A SN to before me this
day A.D. 19_?,S
NOTARY PUBLIC in and for COLLIN COUNTY. TEXAS
Publisher's fee $ 3 1 . 5 0
�°y V. A. TODD
MY COMMISSION EXPIRES
f ' E
Deco mber 5, 1996
CITY OF ALLEN
PUBLIC NOTICE
Notice is hereby given that the Allen City
Council adopted the following ordinance at
their regular meeting held on Thursday,
September 21, 1995 (Title only):
Ordinance No. 1362-9-95: An Ordinance
of the City of Allen, Collin County, Texas,
authorizing the issuance of "CITY OF AL-
LEN, TEXAS, WATERWORKS AND
SEWER SYSTEM REVENUE BONDS,
SERIES 1995"; pledging the net revenues
of the City's combined Waterworks and
Sewer System to the payment of the princi-
pal of and interest on said Bonds; enacting
provisions incident and related to the is-
suance, payment, security and delivery of
said bonds, including the approval and ex-
ecution of a Paying Agent/Registrar Agree-
ment and the approval and distribution of
an Official Statement pertaining thereto;
and providing an effective date. '" ' ;=µ"
A copy of this ordinance may be read or
purchased in the office of the City Secret-
ary, City of Allen, One Butler Circle, Allen,
Texas 75013.
/s/Judy Morrison
City Secretary
CITY OF ALLEN
PUBLIC NOTICE
Notice is hereby given that the Allen City
Council adopted the following ordinance at
their regular meeting held on Thursday,
September 21, 1995 (Title rnly):
Ordinance No. 1362-9-95: An Ordinance
of the City of Allen, Collin County, Texas,
authorizing the issuance of "CITY OF AL-
LEN, TEXAS, WATERWORKS AND
SEWER SYSTEM REVENUE BONDS,
SERIES 1995"; pledging the net revenues
of the City's combined Waterworks and
Sewer System to the payment of the princi-
pal of and interest on said Bonds; enacting
provisions incident and related to the is-
suance, payment, security and delivery of
said bonds, including the approval and ex-
ecution of a Paying Agent/Registrar Agree-
ment and the approval and distribution of
an Official Statement pertaining thereto;
and providing an effective date.
A copy of this ordinance may be read or
purchased in the office of the City Secret -t
ary, City of Allen, One Butler Circle, Allen,
Texas 75013.
/s/Judy Morrison
City Secretary