O-3149-5-13ORDINANCE NO. 3149 -5-13
AN ORDINANCE authorizing the issuance of "CITY OF ALLEN, TEXAS,
GENERAL OBLIGATION BONDS, SERIES 2013"; specifying the terms
and features of said bonds; levying a continuing direct annual ad valorem
tax for the payment of said bonds; resolving other matters incident and
related to the issuance, sale, payment and delivery of said bonds, including
the approval and execution of a Paying Agent/Registrar Agreement and a
Bond Purchase Agreement, and the approval and distribution of an
Official Statement pertaining thereto; and providing an effective date.
WHEREAS, the City Council of the City of Allen, Texas (the "City") hereby fords and
determines that general obligation bonds in the principal amount of $5,065,000 approved and
authorized to be issued at an election held May 12, 2007 should be issued and sold at this time; a
summary of the general obligation bonds authorized at said election, as well as an election held
November 5, 2002, the principal amounts authorized, amounts heretofore issued and being
issued pursuant to this ordinance and amounts remaining to be issued subsequent hereto being as
follows:
Election
Previously
Date
Purpose
11-5-02
Performing Arts Center
5-12-07
Service Center Facilities
19,500,000
Municipal Public
5-12-07
Buildings
5-12-07
Streets
5-12-07
Parks
5-12-07
Public Art Projects
5-12-07
Public Safety
Amount Amount
Amount
Previously
Being
Unissued
Authorized
Issued
Issued
Balance
19,500,000
2,815,000
-0-
16,685,000
14,500,000
12,500,000
-0-
2,000,000
1,700,000
475,000
550,000
675,000
27,200,000
19,085,000
*2,955,000
5,160,000
17,250,000
7,200,000
1,500,000
8,550,000
1,390,000
625,000
300,000
465,000
15,855,000
11,975,000
-0-
3,880,000
*includes original issue premium in the amount of $240,000 allocated to and applied against
voted authorization
AND WHEREAS, the Council hereby reserves and retains the right to issue the balance
of unissued bonds approved at said elections in one or more installments when, in the judgment
of the Council, funds are needed to accomplish the purposes for which such bonds were voted;
now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ALLEN, TEXAS:
SECTION 1: Authorization - Designation - Principal Amount - Purpose. General
obligation bonds of the City shall be and are hereby authorized to be issued in the aggregate
principal amount of $5,065,000, to be designated and bear the title "CITY OF ALLEN, TEXAS,
GENERAL OBLIGATION BONDS, SERIES 2013" (hereinafter referred to as the "Bonds"), for
57105303.2/I1301627
permanent public improvements and public purposes, to wit: $550,000 for renovating, repairing
and equipping existing municipal public buildings, $2,955,000 for acquiring, constructing,
improving and maintaining streets, thoroughfares, bridges, alleyways and sidewalks within the
City, including related storm drainage improvements, traffic signalization and signage,
streetscaping and median improvements, and utility relocations and the acquisition of land and
rights of way therefor, $1,500,000 for acquiring, constructing, improving and equipping park and
recreational facilities, including the acquisition of land therefor, and $300,000 for public art
projects, all in accordance with authority conferred by and in conformity with the Constitution
and laws of the State of Texas, including V.T.C.A., Government Code, Chapter 1331, as
amended.
SECTION 2: Fully Registered Obligations - Bond Date - Authorized Denominations -
Stated Maturities - Interest Rates. The Bonds shall be issued as fully registered obligations only,
shall be dated June 1, 2013 (the "Bond Date"), shall be in denominations of $5,000 or any
integral multiple (within a Stated Maturity) thereof, and shall become due and payable on
August 15 in each of the years and in principal amounts (the "Stated Maturities") and bear
interest at the rate(s) per annum in accordance with the following schedule:
YEAR OF
PRINCIPAL
INTEREST
MATURITY
AMOUNT
RATE
2014
$190,000
2.00%
2015
220,000
2.00%
2016
225,000
2.00%
2017
230,000
2.00%
2018
235,000
2.00%
2019
240,000
2.00%
2020
245,000
2.00%
2021
250,000
2.00%
2022
255,000
2.00%
2023
260,000
2.50%
2024
265,000
3.00%
2025
275,000
3.00%
2026
285,000
3.00%
2027
290,000
3.00%
2028
300,000
3.00%
2029
310,000
3.00%
2030
320,000
3.50%
2031
330,000
3.50%
2032
340,000
3.50%
The Bonds shall bear interest on the unpaid principal amounts from the date of delivery
to the initial purchasers, anticipated to be June 5, 2013 (the "Delivery Date"), at the rate(s) per
annum shown above (calculated on the basis of a 360 -day year of twelve 30 -day months).
57105303 2 /11301627
Interest on the Bonds shall be payable on February 15 and August 15 in each year, commencing
February 15, 2014, until maturity or prior redemption.
SECTION 3: Terms of Payment - Paying Aeent/Reaistraz. 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 The Bank of New York Mellon Trust Company, N.A.,
Dallas, Texas, to serve as Paying Agent/Registrar for the Bonds is hereby approved and
confirmed. Books and records relating to the registration, payment, exchange and transfer of the
Bonds (the "Security Register") shall at all times be kept and maintained on behalf of the City by
the Paying Agent/Registrar, all as provided herein, in accordance with the terns and provisions
of a "Paying Agent/Registrar Agreement", substantially in the form attached hereto as
Exhibit A, and such reasonable rules and regulations as the Paying Agent/Registrar and the City
may prescribe. The Mayor and City Secretary of the City are hereby authorized to execute and
deliver such Paying Agent/Registrar 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 commercial bank,
trust company, financial institution or other entity qualified and authorized to serve in such
capacity and perform the duties and services of Paying Agent/Registrar. Upon any change in the
Paying Agent/Registrar for the Bonds, the City agrees to promptly cause a written notice thereof
to be sent to each Holder by United States Mail, first class postage prepaid, which notice shall
also give the address of the new Paying Agent/Registrar.
Principal of and premium, if any, on the Bonds shall be payable at the Stated Maturities
or upon the earlier redemption thereof, only upon presentation and surrender of the Bonds to the
Paying Agent/Registrar at its designated offices, initially in East Syracuse, New York, or, with
respect to a successor Paying Agent/Registrar, at the designated offices of such successor (the
"Designated Payment/Transfer Office"). Interest on the Bonds shall be paid to the Holders
whose names appear in the Security Register at the close of business on the Record Date (the last
business day of the month next preceding each interest payment date) and shall be paid by the
Paying Agent/Registrar (i) by check sent United States Mail, first class postage prepaid, to the
address of the Holder recorded in the Security Register or (ii) by such other method, acceptable
to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder. If the
date for the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday,
legal holiday or a day when banking institutions in the city where the Designated
Payment/Transfer Offioe 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.
57105303,2 /11301617
In the event of a nonpayment of interest on a scheduled payment date, and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date") will be
established by the Paying AgentIRegistrar, 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 fifteen (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, fust class postage prepaid, to the address of each Holder appearing on the Security
Register at the close of business on the last business day next preceding the date of mailing of
such notice.
SECTION 4: Redemption.
(a) Optional Redemption. The Bonds having Stated Maturities on and after
August 15, 2024, 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 August 15, 2023, or on any date
thereafter, at the redemption price of par plus accruedinterest to the date of redemption.
(b) Exercise of Redemption Option. At least forty-five (45) days prior to a
redemption date for the Bonds (unless a shorter notification period shall be satisfactory to the
Paying Agent/Rcgistrar), the City shall notify the Paying Agent/Registrar of the decision to
redeem Bonds, the principal amount of each Stated Maturity to be redeemed, and the date of
redemption therefor. The decision of the City to exercise its right to redeem Bonds shall be
entered in the minutes of the governing body of the City.
(c) Selection of Bonds for Redemption. If less than all Outstanding Bonds of the
same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar shall
treat such Bonds as representing the number of Bonds Outstanding, which is obtained by
dividing the principal amount of such Bonds by $5,000, and shall select the Bonds to be
redeemed within such Stated Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date
for the Bonds, a notice of redemption shall be sent by United States Mail, first class postage
prepaid, in the name of the City and at the City's expense, to each Holder of a Bond to be
redeemed in whole or in part at the address of the Holder appearing on the Security Register at
the close of business on the business day next preceding the date of mailing such notice, and
any notice of redemption so mailed shall be conclusively presumed to have been duly given
irrespective of whether received by the Holder.
All notices of redemption shall (i) specify the date of redemption for the Bonds,
(ii) identify the Bonds to be redeemed and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price, (iv) state
that the Bonds, or the portion of the principal amount thereof to be redeemed, shall become due
and payable on the redemption date specified, and the interest thereon, or on the portion of the
principal amount thereof to be redeemed, shall cease to accrue from and after the redemption
date, and (v) specify that payment of the redemption price for the Bonds, or the principal amount
thereof to be redeemed, shall be made at the Designated Paymem/Transfer Office of the Paying
591053D3.2/11301629
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 as hereinabove provided, such Bond (or the principal amount thereof
to be redeemed) shall become due and payable and interest thereon shall cease to accrue from
and after the redemption date therefor; provided moneys sufficient for the payment of such Bond
(or of the principal amount thereof to be redeemed) at the then applicable redemption price are
held for the purpose of such payment by the Paying Agent/Registrar.
(e) Conditional Notice of Redemption. With respect to any optional redemption of
the Bonds, unless certain prerequisites to such redemption required by this Ordinance have been
met and moneys sufficient to pay the principal of and premium, if any, and interest on the
Bonds to be redeemed shall have been received by the Paying Agent/Registrar prior to the
giving of such notice of redemption, such notice may state that said redemption is conditional
upon the satisfaction of such prerequisites and receipt of such moneys by the Paying
Agent/Registrar on or prior to the date fixed for such redemption. If a conditional notice of
redemption is given and such prerequisites to the redemption me not satisfied or sufficient
moneys are not received, such notice shall be of no force and effect, the City shall not redeem
such Bonds and the Paying Agent/Registrar shall give notice, in the manner in which the notice
of redemption was given, to the effect that the Bonds have not been redeemed.
SECTION 5: Registration - Transfer - Exchange of Bonds - Predecessor Bonds. The
Paying Agent/Registrar shall obtain, record and maintain in the Security Register the name and
address of each and every owner of the Bonds issued under and pursuant to the provisions of this
Ordinance or, if appropriate, the nominee thereof. Any Bond may be transferred or exchanged
for Bonds of other authorized denominations by the Holder, in person or by his duly authorized
agent, upon surrender of such Bond to the 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 of any Bond (other than the Initial Bond(s) referenced in Section 8
hereof) for transfer at the Designated Payment/Transfar 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 Bond(s) referenced in Section 8
hereof) may be exchanged for other Bonds of authorized denominations and having the same
Stated Maturity, bearing the same rate of interest and of like aggregate principal amount as the
Bonds surrendered for exchange, upon surrender of the Bonds to be exchanged at the Designated
Payment/Transfer Office of the Paying Agent/Registrar. Whenever any Bonds are surrendered
for exchange, the Paying Agent/Registrar shall register and deliver new Bonds to the Holder
requesting the exchange.
All Bonds issued in any transfer or exchange of Bonds shall be delivered to the Holders
at the Designated Payment/Transfer Office of the Paying Agent/Registrar or sent by United
States Mail, first class postage prepaid, to the Holders, and, upon the registration and delivery
57105303.2/1130162]
thereof, the same shall be valid obligations of the City, evidencing the same obligation to pay,
and entitled to the same benefits under this Ordinance, as the Bonds surrendered in such transfer
or exchange.
All transfers or exchanges of Bonds pursuant to this Section shall be made without
expense or service charge to the Holder, except as otherwise herein provided, and except that the
Paying Agent/Registrar shall require payment by the Holder requesting such transfer or exchange
of any tax or other governmental charges required to be paid with respect to such transfer or
exchange.
Bonds cancelled by reason of an exchange or transfer pursuant to the provisions hereof
are hereby defined to be "Predecessor Bonds", evidencing all or a portion, as the case may be, of
the same obligation to pay evidenced by the new Bond or Bonds registered and delivered in the
exchange or transfer therefor. Additionally, the term "Predecessor Bonds" shall include any
mutilated, lost, destroyed or stolen Bond for which a replacement Bond has been issued,
registered and delivered in lieu thereof pursuant to the provisions of Section l l hereof, and such
new replacement Bond shall be deemed to evidence the same obligation as the mutilated, lost,
destroyed or stolen Bond.
Neither the City nor the Paying Agent/Registrar shall be required to issue or transfer to an
assignee of a Holder any Bond called for redemption, in whole or in part, within forty-five (45)
days of the date fixed for the redemption of such Bond; provided, however, such limitation on
transferability shall not be applicable to an exchange by the Holder of the unredeemed balance of
a Bond called for redemption in part.
SECTION 6: Book -Entry -Only Transfers and Transactions. Notwithstanding the
provisions contained herein relating to the payment of 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 Blanket Letter of Representations, by and
between the City and DTC (the "Depository Agreement').
Pursuant to the Depository Agreement and the rules of DTC, the Bonds shall be
deposited with DTC, who shall hold said Bonds for its participants (the "DTC Participants").
While the Bonds are held by DTC under the Depository Agreement, the Holder of the Bonds on
the Security Register for all purposes, including payment and notices, shall be Cede & Co., as
nominee of DTC, notwithstanding the ownership of each actual purchaser or owner of each Bond
(the `Beneficial Owners") being recorded in the records of DTC and DTC Participants.
In the event DTC determines to discontinue serving as securities depository for the Bonds
or otherwise ceases to provide book -entry clearance and settlement of securities transactions in
general or the City determines that DTC is incapable of properly discharging its duties as
securities depository for the Bonds, the City covenants and agrees with the Holders of the Bonds
to cause Bonds to be printed in definitive form and provide for the Bond certificates to be issued
and delivered to DTC Participants and Beneficial Owners, as the case may be. Thereafter, the
Bonds in definitive form shall be assigned, transferred and exchanged on the Security Register
59105303 2 /11301629
maintained by the Paying Agent/Registrar and payment of such Bonds shall be made in
accordance with the provisions of Sections 3, 4 and 5 hereof.
SECTION 7: Execution - Registration. The Bonds shall be executed on behalf of the
City by the Mayor or Mayor Pro Tem 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 dated of the adoption of this Ordinance shall be deemed to
be duly executed on behalf of the City, notwithstanding that one or more of the individuals
executing the same shall cease to hold such offices at the time of delivery of the Bonds to the
initial purchaser(s) and with respect to Bonds delivered in subsequent exchanges and transfers,
all as authorized and provided in V.T.C.A., Government Code, Chapter 1201, 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 9(c), 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 9(d), manually executed by an authorized officer,
employee or representative of the Paying Agent/Registrar, and either such certificate duly signed
upon any Bond shall be conclusive evidence, and the only evidence, that such Bond has been
duly certified, registered and delivered.
SECTION 8: Initial Bond(s). The Bonds herein authorized shall be initially issued
either (i) as a single fully registered bond in the aggregate principal amount stated in Section I
hereof in principal installments to become due and payable as provided in Section 2 hereof and
numbered T-1, or (ii) as multiple fully registered bonds, being one bond for each year of maturity
in the applicable principal amount and denomination and to be numbered consecutively from T-1
and upward (hereinafter called the "Initial Bonds)") and, in either case, the Initial Bond(s) shall
be registered in the name of the initial purchaser(s) or the designee thereof. The Initial Bond(s)
shall be the Bonds submitted to the Office of the Attorney General of the State of Texas for
approval, certified and registered by the Office of the Comptroller of Public Accounts of the
State of Texas and delivered to the initial purchaser(s). Any time after the delivery of the Initial
Bond(s), the Paying Agent/Registrar, pursuant to written instructions from the initial
purchaser(s), or the designee thereof, shall cancel the Initial Bond(s) delivered hereunder and
exchange therefor definitive Bonds of authorized denominations, Stated Maturities, principal
amounts and bearing applicable interest rates for transfer and delivery to the Holders named at
the addresses identified therefor; all pursuant to and in accordance with such written instructions
from the initial purchaser(s), or the designee thereof, and such other information and
documentation as the Paying Agent/Registrar may reasonably require.
SECTION 9: Forms.
(a) Forms Generallv. The Bonds, the Registration Certificate of the Comptroller of
Public Accounts of the State of Texas, the Registration Certificate of Paying Agent/Registrar
and the form of Assignment to be printed on each of the Bonds, shall be substantially in the
forms set forth in this Section with such appropriate insertions, omissions, substitutions and
other variations as are permitted or required by this Ordinance, and may have such letters,
57105303 2/11301627
numbers or other marks of identification (including identifying numbers and letters of the
Committee on Uniform Securities Identification Procedures of the American Bankers
Association) and such legends and endorsements (including insurance legends on insured Bonds
and any reproduction of an opinion of counsel) thereon as may, consistently herewith, be
established by the City or determined by the officers executing such Bonds as evidenced by
their execution. Any portion of the text of any Bonds may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Bond.
The definitive Bonds and the Initial Bond(s) shall be printed, lithographed, 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
GENERAL OBLIGATION BOND
SERIES 2013
Bond Date: Interest Rate: Stated Maturity: CUSIP NO: Delivery Date:
June 1, 2013 % August 15, 20 June 5, 2013
Registered Owner:
Principal Amount:
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, acknowledges itself
indebted to and hereby promises to pay to the Registered Owner named above (the "Registered
Owner"), or the registered assigns thereof, on the Stated Maturity date specified above, the
Principal Amount hereinabove stated (or so much thereof as shall not have been paid upon prior
redemption) and to pay interest on the unpaid principal amount hereof from the interest payment
date next preceding the "Registration Date" of this Bond appearing below (unless this Bond
bears a "Registration Date" as of an interest payment date, in which case it shall bear interest
from such date, or unless the "Registration Date" of this Bond is prior to the initial interest from
such date in which case it shall bear interest from the Delivery Date) at the per annum rate of
interest specified above computed on the basis of a 360 -day year of twelve 30 -day months; such
interest being payable on February 15 and August 15 in each year, commencing February 15,
2014. Principal of this Bond is payable at its Stated Maturity or upon its prior redemption to the
Registered Owner hereof, upon presentation and surrender, at the Designated Payment/Transfer
Office of the Paying Agent/Registrar executing the registration certificate appearing hereon, or
its successor; provided, however, while this Bond is registered to Cede & Co., the payment of
principal upon a partial redemption of the principal amount hereof may be accomplished without
presentation and surrender of this Bond. Interest is payable to the Registered Owner of this
57105303.2/11301627
Bond (or one or more Predecessor Bonds, as defined in the Ordinance hereinafter referenced)
whose name appears on the "Security Register" maintained by the Paying Agent/Registrar at the
close of business on the "Record Date", which is the last business day of the month next
preceding each interest payment date, and interest shall be paid by the Paying Agent/Registrar by
check sent United States Mail, first class postage prepaid, to the address of the Registered Owner
recorded in the Security Register or by such other method, acceptable to the Paying
Agent/Registrar, requested by, and at the risk and expense of, the Registered Owner. If the date
for the payment of the principal of or interest on the Bonds shall be a Saturday, Sunday, legal
holiday or a day when banking institutions in the city where the Designated PaymenuTransfer
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.
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 $5,065,000 (herein referred to as the "Bonds") for permanent public improvements
and public purposes, to wit: $550,000 for renovating, repairing and equipping existing municipal
public buildings, $2,955,000 for acquiring, constructing, improving and maintaining streets,
thoroughfares, bridges, alleyways and sidewalks within the City, including related storm
drainage improvements, traffic signalization and signage, streetscaping and median
improvements, and utility relocations and the acquisition of land and rights of way therefor,
$1,500,000 for acquiring, constructing, improving and equipping park and recreational facilities,
including the acquisition of land therefor, and $300,000 for public art projects, all in accordance
with authority conferred by and in conformity with the Constitution and laws of the State of
Texas, including V.T.C.A., Govemment Code, Chapter 1331, as amended, and pursuant to an
Ordinance adopted by the City Council of the City (herein referred to as the "Ordinance"),
The Bonds maturing on and after August 15, 2024, may be redeemed prior to their Stated
Maturities, at the option of the City, in whole or in part in principal amounts of $5,000 or any
integral multiple thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar),
on August 15, 2023, or on any date thereafter, at the redemption price of par, together with
accrued interest to the date of redemption.
At least thirty (30) days prior to a redemption date, 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 its principal sum) shall have been duly called for redemption and notice of such
redemption duly given, then upon the redemption date this Bond (or the portion of its principal
sum to be redeemed) shall become due and payable, and interest hereon shall cease to accrue
from and after the redemption date herefor, provided moneys for the payment of the redemption
price and the interest on the principal amount to be redeemed to the date of redemption are held
for the purpose of such payment by the Paying Agent/Registrar.
571053032/11301627
In the event a portion of the principal amount of this Bond is to be redeemed and the
Registered Owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the Registered Owner only upon presentation and surrender of
this Bond to the Designated Payment/Transfer Office of the Paying Agent/Registrar, and a new
Bond or Bonds of like maturity and interest rate in any authorized denominations provided by
the Ordinance for the then unredeemed balance of the principal sum thereof will be issued to the
Registered Owner, without charge. If this Bond is selected for redemption, in whole or in part,
the City and the Paying Agent/Registrar shall not be required to transfer this Bond to an assignee
of the Registered Owner within forty-five (45) days of the redemption date therefor; provided,
however, such limitation on transferability shall not be applicable to an exchange by the
Registered Owner of the unredeemed balance hereof in the event of its redemption in part.
With respect to any optional redemption of the Bonds, unless certain prerequisites to such
redemption required by the Ordinance have been met and moneys sufficient to pay the principal
of and premium, if any, and interest on the Bonds to be redeemed shall have been received by the
Paying Agem/Registrar prior to the giving of such notice of redemption, such notice may state
that said redemption is conditional upon the satisfaction of such prerequisites and receipt of such
moneys by the Paying Agent/Registrar on or prior to the date fixed for such redemption. If a
conditional notice of redemption is given and such prerequisites to the redemption are not
satisfied or sufficient moneys are not received, such notice shall be of no force and effect, the
City shall not redeem such Bonds and the Paying Agent/Registrar shall give notice, in the
manner in which the notice of redemption was given, to the effect that the Bonds have not been
redeemed.
The Bonds are payable from the proceeds of an ad valorem tax levied, within the
limitations prescribed by law, upon all taxable property in the City. Reference is hereby made to
the Ordinance, a copy of which is on file in the Designated Payment/Transfer Office of the
Paying Agent/Registrar, and to all of the provisions of which the Registered Owner of this Bond
by the acceptance hereof hereby assents, for definitions of terms; the description of and the
nature and extent of the tax levied for the payment of the Bonds; the terms and conditions
relating to the transfer or exchange of this Bond; the conditions upon which the Ordinance may
be amended or supplemented with or without the consent of the Registered Owners; the rights,
duties and obligations of the City and the Paying Agent/Registrar; the terms and provisions upon
which this Bond may be discharged at or prior to its maturity or redemption, and deemed to be
no longer Outstanding thereunder; and for other terms and provisions contained therein.
Capitalized terms used herein and not otherwise defined have the meanings assigned in the
Ordinance.
This Bond, subject to certain limitations contained in the Ordinance, may be transferred
on the Security Register only upon its presentation and surrender at the Designated
Payment/Transfer Office of the Paying Agent/Registrar, with the Assignment hereon duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the
Paying Agent/Registrar duly executed by, the Registered Owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or more new fully registered Bonds
of the same Stated Maturity, of authorized denominations, bearing the same rate of interest and
of the same aggregate principal amount will be issued by the Paying Agent/Registrar to the
designated transferee or transferees.
57105303 2 /11301627 10
The City and the Paying Agent/Registrar, and any agent of either, shall treat the
Registered Owner whose name appears on the Security Register (i) on the Record Date as the
owner entitled to payment of interest hereon, (ii) on the date of surrender of this Bond as the
owner entitled to payment of principal hereof at its Stated Maturity or upon its prior 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 nonpayment of interest on a scheduled payment date and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date") will be
established by the Paying Agent/Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be fifteen (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 declared that the City is a body corporate
and political subdivision duly organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the issuance of the Bonds is duly authorized by
law; that all acts, conditions and things required to exist and be done precedent to and in the
issuance of the Bonds to render the same lawful and valid obligations of the City have been
properly done, have happened and have been performed in regular and due time, form and
manner as required by the Constitution and laws of the State of Texas, and the Ordinance; that
the Bonds do not exceed any Constitutional or statutory limitation; and that due provision has
been made for the payment of the principal of and interest on the Bonds by the levy of a tax as
aforestated. In case any provision in this Bond shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby. The terns and provisions of this Bond and the Ordinance shall be
construed in accordance with and shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the City Council of the City has caused this Bond to be duly
executed under the official seal of the City.
CITY OF ALLEN, TEXAS
Mayor
COUNTERSIGNED:
City Secretary
(SEAL)
57105303.2 A 1301627 11
(c) Form of Registration Certificate of Comptroller of Public Accounts to appear on
Initial Bond(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
THE STATE OF TEXAS §
OFFICE OF THE COMPTROLLER § REGISTER NO.
OF PUBLIC ACCOUNTS §
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
(SEAL)
only.
Comptroller of Public Accounts
of the State of Texas
(d) Form of Certificate of Paving Agent/Registrar to appear on Definitive Bonds
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Bond has been duly issued and registered under the provisions of the
within -mentioned Ordinance; the bond or bonds of the above entitled and designated series
originally delivered having been approved by the Attorney General of the State of Texas and
registered by the Comptroller of Public Accounts, as shown by the records of the Paying
Agent/Registrar.
The designated offices of the Paying Agent/Registrar in East Syracuse, New York is the
"Designated Payment/Transfer Office" for this Bond.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas,
as Paying Agent/Registrar
Authorized Signature
Registration Date:
59105303.2/1130162/ 12
(e) Form of Assignment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto (Print
or typewrite name, address and zip code of transferee):
(Social Security or other identifying number: )
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
NOTICE: The signature on this assignment
must correspond with the name of the
Signature guaranteed: registered owner as it appears on the face of
the within Bond in every particular.
(0 The Initial Bond(s) shall be in the form set forth in paragraph (b) of this Section,
except that the form of the single fully registered Initial Bond shall be modified as follows:
Heading and paragraph one shall be amended to read as follows:
NO. T-1
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF ALLEN, TEXAS
GENERAL OBLIGATION BOND
SERIES 2013
Bond Date:
June 1, 2013
Registered Owner: Stifel, Nicolaus & Company, Incorporated
Principal Amount: FIVE MILLION SIXTY-FIVE THOUSAND DOLLARS
$5,065,000
Delivery Date:
June 5, 2013
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, acknowledges itself
indebted to and hereby promises to pay to the Registered Owner named above (the "Registered
Owner"), or the registered assigns thereof, the Principal Amount hereinabove stated on
August 15 in the years and in principal installments in accordance with the following schedule:
YEAR OF PRINCIPAL INTEREST
MATURITY INSTALLMENTS RATES
5/1053032/1130162] 13
(information to be inserted from schedule in Section 2 hereof)
(or so much thereof as shall not have been paid upon prior redemption) and to pay interest on the
unpaid Principal Amount hereof from the Delivery Date at the per annum rates of interest
specified above computed on the basis of a 360 -day year of twelve 30 -day months; such interest
being payable on February 15 and August 15 in each year until maturity or prior redemption,
commencing February 15, 2014. Principal installments of this Bond are payable at the year of
maturity or on a redemption date to the Registered Owner hereof by The Bank of New York
Mellon Trust Company, N.A., Dallas, Texas (the "Paying Agent/Registrar"), upon presentation
and surrender, at its designated offices in East Syracuse, New York (the "Designated
Payment/Transfer Office"). Interest is payable to the Registered Owner of this Bond (or one or
more Predecessor Bonds, as defined in the Ordinance hereinafter referenced) whose name
appears on the "Security Register" maintained by the Paying Agent/Registrar at the close of
business on the "Record Date", which is the last business day of the month next preceding each
interest payment date, and interest shall be paid by the Paying Agent/Registrar by check sent
United States Mail, first class postage prepaid, to the address of the Registered Owner recorded
in the Security Register or by such other method, acceptable to the Paying Agent/Registrar,
requested by, and at the risk and expense of, the Registered Owner. If the date for the payment
of the principal of or interest on the Bonds shall be a Saturday, Sunday, 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. 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 win or currency of the United States of America, which
at the time of payment is legal tender for the payment of public and private debts.
SECTION 10: Levy of Taxes. To provide for the payment of the "Debt Service
Requirements" of the Bonds, being (i) the interest on the Bonds and (ii) a sinking fund for their
redemption at maturity or a sinking fund of 2% (whichever amount is the greater), there is
hereby levied, and there shall be annually assessed and collected in due time, form and manner, a
tax on all taxable property in the City, within the limitations prescribed by law, and such tax
hereby levied on each one hundred dollars' valuation of taxable property in the City for the Debt
Service Requirements of the Bonds shall be at a rate from year to year as will be sufficient to
provide funds each year to pay the Debt Service Requirements of said Bonds while Outstanding;
full allowance being made for delinquencies and costs of collection; separate books and records
relating to the receipt and, disbursement of taxes levied, assessed and collected for and on
account of the Bonds shall be kept and maintained by the City at all times while the Bonds are
Outstanding, and the taxes collected for the payment of the Debt Service Requirements on the
Bonds shall be deposited to the credit of a "Special 2013 Bond Account" (the "Interest and
Sinking Fund") maintained on the records of the City and deposited in a special fund maintained
at an official depository of the City's funds; and such tax hereby levied and to be assessed and
collected annually, is hereby pledged to the payment of the Bonds.
591053032/1130162] 14
The Mayor, Mayor Pro Tem, City Manager, City Secretary, Chief Financial Officer and
Assistant Finance Director of the City, individually or collectively, are hereby authorized and
directed to cause to be transferred to the Paying Agent/Registrar for the Bonds, from funds on
deposit in the Interest and Sinking Fund, amounts sufficient to fully pay and discharge promptly
each installment of principal of and interest on the Bonds as the same accrues or matures or
comes due by reason of redemption prior to maturity; such transfers of funds to be made in such
manner as will cause collected funds to be deposited with the Paying Agent/Registrar on or
before each principal and interest payment date for the Bonds.
SECTION 11: Mutilated, Destroyed, Lost and Stolen Bonds. In case any Bond shall be
mutilated, 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 home by the Holder of the Bond
mutilated, destroyed, lost or stolen.
Every replacement Bond issued pursuant to this Section shall be a valid and binding
obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably with all
other Outstanding Bonds; notwithstanding the enforceability of payment by anyone of the
destroyed, lost or stolen Bonds.
The provisions of this Section me exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement and payment of mutilated, destroyed,
lost or stolen Bonds.
SECTION 12: Satisfaction of Obligations of City. If the City shall pay or cause to be
paid, or there shall otherwise be paid to the Holders, the principal of, premium, if any, and
interest on the Bonds, at the times and in the manner stipulated in this Ordinance, then the pledge
of taxes levied under this Ordinance and all covenants, agreements and other obligations of the
City to the Holders shall thereupon cease, terminate and be discharged and satisfied.
Bonds or any principal amount(s) thereof shall be deemed to have been paid within the
meaning and with the effect expressed above in this Section when (i) money sufficient to pay in
full such Bonds or the principal amount(s) thereof at maturity or to the redemption date therefor,
together with all interest due thereon, shall have been irrevocably deposited with and held in trust
by the Paying Agent/Registrar, or an authorized escrow agent, or (ii) Government Securities
shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized
escrow agent, which Government Securities have been certified by an independent accounting
firm to mature as to principal and interest in such amounts and at such times as will insure the
availability, without reinvestment, of sufficient money, together with any moneys deposited
therewith, if any, to pay when due the principal of and interest on such Bonds, or the principal
$71053032/11301627 15
amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of redemption has
been duly given or waived or if irrevocable arrangements therefor acceptable to the Paying
Agent/Registrar have been made) the redemption date thereof. The City covenants that no
deposit of moneys or Government Securities will be made under this Section and no use made of
any such deposit which would cause the Bonds to be treated as "arbitrage bonds" within the
meaning of section 148 of the Internal Revenue Code of 1986, as amended, or regulations
adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/Registrar, or an authorized escrow
agent, and all income from Government Securities held intrust by the Paying Agent/Registrar, or
an authorized escrow agent, pursuant to this Section which is not required for the payment of the
Bonds, or any principal amount(s) thereof, or interest thereon with respect to which such moneys
have been so deposited, shall be remitted to the City or deposited as directed by the City.
Furthermore, any money held by the Paying Agent/Registrar for the payment of the principal of
and interest on the Bonds and remaining unclaimed for a period of three (3) years after the Stated
Maturity, or applicable redemption date, of the Bonds such moneys were deposited and me held
in trust to pay shall, upon the request of the City, be remitted to the City against a written receipt
therefor. Notwithstanding the above and foregoing, any remittance of funds from the Paying
Agent/Registrar to the City shall be subject to any applicable unclaimed property laws of the
State of Texas.
The tern "Government Securities", as used herein, means (i) direct noncallable
obligations of the United States of America, including obligations the principal of and interest on
which are unconditionally guaranteed by the United States of America, (ii) noncallable
obligations of an agency or instrumentality of the United States, including obligations
unconditionally guaranteed or insured by the agency or instrumentality and, on the date of their
acquisition or purchase by the City, are rated as to investment quality by a nationally recognized
investment rating firm not less than AAA or its equivalent, (iii) noncallable obligations of a state
or an agency or a county, municipality or other political subdivision of a state that have been
refunded and that, on the date of their acquisition or purchase by the City, are rated as to
investment quality by a nationally recognized investment rating firm not less than AAA or its
equivalent and (iv) any other then authorized securities or obligations that may be used to
defease obligations such as the Bonds under the then applicable laws of the State of Texas.
SECTION 13: Ordinance a Contract - Amendments - Outstanding Bonds. This
Ordinance shall constitute a contract with the Holders from time to time, be binding on the City,
and shall not be amended or repealed by the City so long as any Bond remains Outstanding
except as permitted in this Section and Section 21 hereof. The City may, without the consent of
or notice to any Holders, from time to time and at any time, amend this Ordinance in any manner
not detrimental to the interests of the Holders, including the curing of any ambiguity,
inconsistency or formal defect or omission herein. In addition, the City may, with the consent of
Holders holding a majority in aggregate principal amount of the Bonds then Outstanding affected
thereby, amend, add to or rescind any of the provisions of this Ordinance; provided that, without
the consent of all Holders of Outstanding Bonds, no such amendment, addition or rescission shall
(1) extend the time or times of payment of the principal of, premium, if any, and interest on the
Bonds, reduce the principal amount thereof, the redemption price therefor, or the rate of interest
thereon, or in any other way modify the terns of payment of the principal of, premium, if any, or
5]1053032/11301629 16
interest on the Bonds, (2) give any preference to any Bond over any other Bond, or (3) reduce the
aggregate principal amount of Bonds required to be held by Holders for consent to any such
amendment, addition or rescission.
The term "Outstanding", when used in this Ordinance with respect to Bonds, means, as of
the date of determination, all Bonds theretofore issued and delivered under this Ordinance,
except:
(1) those Bonds cancelled by the Paying Agent/Registrar or delivered
to the Paying Agent/Registrar for cancellation;
(2) those Bonds deemed to be duly paid by the City in accordance with
the provisions of Section 12 hereof; and
(3) those mutilated, destroyed, lost or stolen Bonds which have been
replaced with Bonds registered and delivered in lieu thereof as provided in
Section I1 hereof.
SECTION 14: Covenants to Maintain Tax -Exempt Status.
(a) Definitions. When used in this Section, the following terms shall have the
following meanings:
"Closing Date" means the date on which the Bonds we first authenticated
and delivered to the initial purchasers against payment therefor.
"Code" means the Internal Revenue Code of 1986, as amended by all
legislation, if any, effective on or before the Closing Date.
"Computation Date "bas the meaning set forth in section 1.148-1(b) of the
Regulations.
"Gross Proceeds " means any proceeds as defined in section 1.148-1(b) of
the Regulations, and any replacement proceeds as defined in section 1.148-1(c) of
the Regulations, of the Bonds.
"Investment" has the meaning set forth in section 1.148-1(b) of the
Regulations.
"Nonpurpose Investment" means any investment property, as defined in
section 148(b) of the Code, in which Gross Proceeds of the Bonds are invested
and which is not acquired to carry out the governmental purposes of the Bonds.
"Rebate Amount" has the meaning set forth in section 1.148-1(b) of the
Regulations.
"Regulations" means any proposed, temporary or final Income Tax
Regulations issued pursuant to sections 103 and 141 through 150 of the Code, and
57105303.2 /11301627 17
103 of the Internal Revenue Code of 1954, which are applicable to the Bonds.
Any reference to any specific Regulation shall also mean, as appropriate, any
proposed, temporary or final Income Tax Regulation designed to supplement,
amend or replace the specific Regulation referenced.
"Yield" of (1) any Investment has the meaning set forth in section 1.148-5
of the Regulations; and (2) the Bonds has the meaning set forth in section 1.148-4
of the Regulations.
(b) Not to Cause Interest to Become Taxable. The City shall not use, permit the use
of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition,
construction or improvement of which is to be financed directly or indirectly with Gross
Proceeds) in a manner which if made or omitted, respectively, would cause the interest on any
Bond to become includable in the gross income, as defined in section 61 of the Code, of the
owner thereof for federal income tax purposes. Without limiting the generality of the foregoing,
unless and until the City receives a written opinion of counsel nationally recognized in the field
of municipal bond law to the effect that failure to comply with such covenant will not adversely
affect the exemption from federal income tax of the interest on any Bond, the City shall comply
with each of the specific covenants in this Section.
(c) No Private Use or Private Payments. Except as permitted by section 141 of the
Code and the Regulations and rulings thereunder, the City shall at all times prior to the last
Stated Maturity of Bonds:
(1) exclusively own, operate and possess all property the acquisition,
construction or improvement of which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Bonds, and not use or permit the use of such
Gross Proceeds (including all contractual arrangements with terms different than
those applicable to the general public) or any property acquired, constructed or
improved with such Gross Proceeds in any activity carried on by any person or
entity (including the United States or any agency, department and instrumentality
thereof) other than a state or local government, unless such use is solely as a
member of the general public; and
(2) not directly or indirectly impose or accept any charge or other
payment by any person or entity who is treated as using Gross Proceeds of the
Bonds or any property the acquisition, construction or improvement of which is to
be financed or refinanced directly or indirectly with such Gross Proceeds, other
than taxes of general application within the City or interest earned on investments
acquired with such Gross Proceeds pending application for their intended
purposes.
(d) No Private Loan. Except to the extent permitted by section 141 of the Code and
the Regulations and rulings thereunder, the City shall not use Gross Proceeds of the Bonds to
make or finance loans to any person or entity other than a state or local government. For
purposes of the foregoing covenant, such Gross Proceeds are considered to be `loaned" to a
person or entity if: (1) property acquired, constructed or improved with such Gross Proceeds is
57105303.2/11301627 18
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 me otherwise transferred in a transaction
which is the economic equivalent of a loan.
(e) Not to Invest at Higher Yield. Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the City shall not at any time prior to the
final Stated Maturity of the Bonds directly or indirectly invest Gross Proceeds in any
Investment (or use Gross Proceeds to replace money so invested) if, as a result of such
investment, the Yield from the Closing Date of all Investments acquired with Gross Proceeds
(or with money replaced thereby), whether then held or previously disposed of, exceeds the
Yield of the Bonds.
(f) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of
the Code and the Regulations and rulings thereunder, the City shall not take or omit to take any
action which would cause the Bonds to be federally guaranteed within the meaning of section
149(b) of the Code and the Regulations and rulings thereunder.
(g) Information Renort. The City shall timely file the information required by
section 149(e) of the Code with the Secretary of the Treasury on Form 8038-G or such other
form and in such place as the Secretary may prescribe.
(h) Rebate of Arbitrage Profits. Except to the extent otherwise provided in section
148(f) of the Code and the Regulations and rulings thereunder:
(1) The City shall account for all Gross Proceeds (including all
receipts, expenditures and investments thereof) on its books of account separately
and apart from all other funds (and receipts, expenditures and investments
thereof) and shall retain all records of accounting for at least six years after the
day on which the last outstanding Bond is discharged. However, to the extent
permitted by law, the City may commingle Gross Proceeds of the Bonds with
other money of the City, provided that the City separately accounts for each
receipt and expenditure of Gross Proceeds and the obligations acquired therewith.
(2) Not less frequently than each Computation Date, the City shall
calculate the Rebate Amount in accordance with rules set forth in section 148(f)
of the Code and the Regulations and rulings thereunder. The City shall maintain
such calculations with its official transcript of proceedings relating to the issuance
of the Bonds until six years after the final Computation Date.
(3) As additional consideration for the purchase of the Bonds by the
Purchasers and the loan of the money represented thereby and in order to induce
such purchase by measures designed to insure the excludability of the interest
thereon from the gross income of the owners thereof for federal income tax
purposes, the City shall pay to the United States from the construction fund, the
571053032 /11301627 19
general fund, or other appropriate fund or, if permitted by applicable Texas
statute, regulation or opinion of the Attorney General of the State of Texas, the
Interest and Sinking Fund, the amount that when added to the future value of
previous rebate payments made for the Bonds equals (i) in the case of a Final
Computation Date as defined in Section 1.148-3(e)(2) of the Regulations, one
hundred percent (100%) of the Rebate Amount on such date; and (ii) in the case
of any other Computation Date, ninety percent (90%) of the Rebate Amount on
such date. In all cases, the rebate payments shall be made at the times, in the
installments, to the place and in the manner as is or may be required by section
148(f) of the Code and the Regulations and rulings thereunder, and shall be
accompanied by Form 8038-T or such other forms and information as is or may
be required by Section 148(1) of the Code and the Regulations and rulings
thereunder.
(4) The City shall exercise reasonable diligence to assure that no errors
are made in the calculations and payments required by paragraphs (2) and (3), and
if an error is made, to discover and promptly correct such error within a
reasonable amount of time thereafter (and in all events within one hundred eighty
(180) days after discovery of the error), including payment to the United States of
any additional Rebate Amount owed to it, interest thereon, and any penalty
imposed under Section 1.148 3(h) of the Regulations.
(i) Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the Bonds, enter into any transaction that
reduces the amount required to be paid to the United States pursuant to Subsection H of this
Section because such transaction results in a smaller profit or a larger loss than would have
resulted if the transaction had been at arm's length and had the Yield of the Bonds not been
relevant to either party.
0) Elections. The City hereby directs and authorizes the Mayor, Mayor Pro Tem,
City Manager, Chief Financial Officer, Assistant Finance Director, or City Secretary,
individually or jointly, to make elections permitted or required pursuant to the provisions of the
Code or the Regulations, as they deem necessary or appropriate in connection with the Bonds,
in the Certificate as to Tax Exemption or similar or other appropriate certificate, form or
document.
(k) Qualified Tax Exempt Obligations. In accordance with the provisions of
paragraph (3) of subsection (b) of Section 265 of the Code, the 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
calendar year 2013 will not exceed $10,000,000.
SECTION 15: Sale of Bonds Official Statement Approval. The Bonds authorized by
this Ordinance are hereby sold by the City to Stifel, Nicolaus & Company, Incorporated (herein
referred to as the "Underwriter") in accordance with the Bond Purchase Agreement, dated
51105303.2/11301627 20
May 14, 2013 attached hereto as Exhibit B and incorporated herein by reference as a part of this
Ordinance for all purposes, which terms of sale are declared to be in the best interests of the City.
The City Manager is hereby authorized and directed to execute said Bond Purchase Agreement
for and on behalf of the City and as the act and deed of this City Council, and in regard to the
approval and execution of the Bond Purchase Agreement, the City Council hereby finds,
determines and declares that the representations, warranties and agreements of the City contained
in the Bond Purchase Agreement are true and correct in all material respects and shall be
honored and performed by the City.
Furthermore, the use of the Preliminary Official Statement, dated May 3, 2013, by the
Underwriter in connection with the public offering and sale of the Bonds is hereby ratified,
confirmed and approved in all respects. The final Official Statement, which reflects the terms of
sale (together with such changes approved by the Mayor, Mayor Pro Tem, City Secretary, City
Manager, Chief Financial Officer and Assistant Finance Director, one or more of said officials),
shall be and is hereby in all respects approved and the Underwriter are hereby authorized to use
and distribute said final Official Statement, dated May 14, 2013, in the reoffering, sale and
delivery of the Bonds to the public. The Mayor and City Secretary are further authorized and
directed to manually execute and deliver for and on behalf of the City copies of said Official
Statement in final form as may be required by the Underwriter, and such final Official Statement
in the form and content manually executed by said officials shall be deemed to be approved by
the City Council and constitute the Official Statement authorized for distribution and use by the
Underwriter.
SECTION 16: Control and Custody of Bonds. The Mayor of the City shall be and is
hereby authorized to take and have charge of all necessary orders and records pending
investigation by the Attorney General of the State of Texas, including the printing and supply of
definitive Bonds, and shall take and have charge and control of the Initial Bond(s) pending the
approval thereof by the Attorney General, the registration thereof by the Comptroller of Public
Accounts and the delivery thereof to the Underwriter.
SECTION 17: Proceeds of Sale. The proceeds of sale of the Bonds, excluding amounts
to pay costs of issuance, shall be deposited in a construction fund maintained at a City
depository. Pending expenditure for authorized projects and purposes, such proceeds of sale
may be invested in authorized investments in accordance with the provisions of V.T.C.A.,
Government Code, Chapter 2256, as amended, and the City's investment policies and guidelines,
and any investment earnings realized shall be expended for such authorized projects and
purposes or deposited in the Interest and Sinking Fund as shall be determined by the City
Council. Premium in the above amount received from the Underwriter as well as any 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 Interest and Sinking Fund.
SECTION 18: Notices to Holders - Waiver. Wherever this Ordinance provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to
the address of each Holder appearing in the Security Register at the close of business on the
business day next preceding the mailing of such notice.
57105303.2/11301627 21
In any case where notice to Holders is given by mail, neither the failure to mail such
notice to any particular Holders, nor any defect in any notice so mailed, shall affect the
sufficiency of such notice with respect to all other Bonds. Where this Ordinance provides for
notice in any manner, such notice may be waived in writing by the Holder entitled to receive
such notice, either before or after the event with respect to which such notice is given, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 19: Cancellation. All Bonds surrendered for payment, redemption, transfer,
exchange or replacement, if surrendered to the Paying Agent/Registrar, shall be promptly
cancelled by it and, if surrendered to the City, shall be delivered to the Paying Agent/Registrar
and, if not already cancelled, shall be promptly cancelled by the Paying Agent/Registrar. The
City may at any time deliver to the Paying Agmt/Registrar for cancellation any Bonds
previously certified or registered and delivered which the City may have acquired in any manner
whatsoever, and all Bonds so delivered shall be promptly cancelled by the Paying
Agent/Registrar. All cancelled Bonds held by the Paying Agent/Registrar shall be returned to
the City.
SECTION 20: Legal Opinion. The Underwriter's obligation to accept delivery of the
Bonds is subject to being furnished a final opinion of Fulbright & Jaworski L.L.P., Dallas,
Texas, approving the Bonds as to their validity, said opinion to be dated and delivered as of the
date of delivery and payment for the Bonds. A true and correct reproduction of said opinion or
an executed counterpart thereof shall accompany the global Bonds deposited with DTC or a
reproduction thereof shall be printed on the definitive Bonds in the event the book -entry -only
system shall be discontinued.
SECTION 21: Continuing Disclosure Undertaking.
(a) Definitions. As used in this Section, the following terns have the meanings
ascribed to such terms below:
"MSRB" means the Municipal Securities Rulemaking Board.
"Rule" means SEC Rule 15c2-12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
(b) Annual Reports. The City shall provide annually to the MSRB (1) within six
months after the end of each fiscal year, beginning in or after 2013, financial information and
operating data with respect to the City of the general type included in the final Official
Statement, being the information described in Exhibit C hereto, and (2) if not provided as part
of such financial infomlation and operating data, audited financial statements of the City. If
audited financial statements me not available by the required time, the City will provide
unaudited financial information of the type described in the official statement and audited
financial statement when and if an audit report becomes available Any financial statements so
provided shall be prepared in accordance with the accounting principles described in Exhibit C
hereto, or such other accounting principles as the City may be required to employ from time to
57105303.2/1130162] 22
time pursuant to state law or regulation, and 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 the City changes its fiscal year, it will notify the MSRB of the change (and of the date
of the new fiscal year end) prior to the next date by which the City otherwise would be required
to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section may
be set forth in full in one or more documents or may be included by specific reference to any
document available to the public on the MSRB's Internet Web site or filed with the SEC.
(c) Notice of Certain Events. The City shall provide notice of any of the following
events with respect to the Bonds to the MSRB in a timely manner and not more than ten (10)
business days after occurrence of the event:
(1) Principal and interest payment delinquencies;
(2) Non-payment related defaults, if material;
(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, the issuance by the Internal Revenue Service
of proposed or final determinations of taxability, Notices of Proposed Issue (IRS
Form 5701-TEB), or other material notices or determinations with respect to the
tax status of the Bonds, or other material events affecting the tax status of the
Bonds;
(7) Modifications to rights of holders of the Bonds, if material;
(8) Bond calls, if material, and tender offers;
(9) Defeasances;
(10) Release, substitution, or sale of property securing repayment of the
Bonds, if material;
(11) Rating changes;
(12) Bankruptcy, insolvency, receivership, or similar event of the City,
which shall occur as described below;
57105303.2/11301627 23
(13) The consummation of a merger, consolidation, or acquisition
involving the City or the sale of all or substantially all of its assets, other than in
the ordinary course of business, the entry into of a definitive agreement to
undertake such an action or the termination of a definitive agreement relating to
any such actions, other than pursuant to its terms, if material; and
(14) Appointment of a successor or additional trustee or the change of
name of a trustee, if material.
For these purposes, any event described in the immediately preceding subsection (c)12 is
considered to occur when any of the following occur: the appointment of a receiver, fiscal agent,
or similar officer for the City in a proceeding under the United States Bankruptcy Code or in any
other proceeding under state or federal law in which a court or governmental authority has
assumed jurisdiction over substantially all of the assets or business of the City, or if such
jurisdiction has been assumed by leaving the existing governing body and officials or officers in
possession but subject to the supervision and orders of a court or governmental authority, or the
entry of an order confining a plan of reorganization, arrangement, or liquidation by a court or
governmental authority having supervision or jurisdiction over substantially all of the assets or
business of the City.
The City shall notify 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) Filings with the MSRB. All financial information, operating data, financial
statements, notices and other documents provided to the MSRB in accordance with this Section
shall be provided in an electronic format prescribed by the MSRB and shall be accompanied by
identifying information as prescribed by the MSRB.
(e) Limitations. Disclaimers. and Amendments. The City shall be obligated to
observe and perform the covenants specified in this Section while, but only while, the City
remains an `obligated person" with respect to the Bonds within the meaning of the Rule, except
that the City in any event will give the notice required by subsection (c) hereof of any Bond
calls and defeasance that cause the City to be no longer such an `obligated person."
The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or
any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the City's financial results, condition, or prospects or hereby undertake to update
any information provided in accordance with this Section or otherwise, except as expressly
provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Bonds at any future date.
51105303 2 /11301627 24
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER
OR BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR
TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY
THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY
COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF
ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH
BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC
PERFORMANCE.
No default by the City in observing or performing its obligations under this Section shall
constitute a breach of or default under this Ordinance for purposes of any other provision of this
Ordinance.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
Notwithstanding anything to the contrary in this Ordinance, 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 (b) a Person that is unaffiliated with the City (such as nationally
recognized bond counsel) determines that such amendment will not materially impair the
interests of the Holders and beneficial owners of the Bonds. The provisions of this Section may
also be amended from time to time or repealed by the City if the SEC amends or repeals the
applicable provisions of the Rule or a court of final jurisdiction determines that such provisions
are invalid, but only if and to the extent that reservation of the City's right to do so would not
prevent underwriters of the initial public offering of the Bonds from lawfully purchasing or
selling Bonds in such offering. If the City so amends the provisions of this Section, it shall
include with any amended financial information or operating data next provided pursuant to
subsection (b) hereof 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 22: 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 the Bonds as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds.
SECTION 23: Benefits of Ordinance. Nothing in this Ordinance, expressed or implied, is
intended or shall be constmed 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
57105303 2 /1/301629 25
intended to be and being for the sole and exclusive benefit of the City, the Paying
Agent/Registrar and the Holders.
SECTION 24: 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 25: 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 26: Effect of Headings. The Section headings herein are for convenience of
referenced only and shall not affect the construction hereof.
SECTION 27: 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 28: Severability. If any provision of this Ordinance or the application thereof
to any circumstance shall be held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be valid, and the City Council
hereby declares that this Ordinance would have been enacted without such invalid provision.
SECTION 29: Incorporation of Findings and Determinations. The findings and
determinations of the City Council contained in the preamble hereof are hereby incorporated by
reference and made a part of this Ordinance for all purposes as if the same were restated in full in
this Section.
SECTION 30: Further Procedures. Any one or more of the Mayor, Mayor Pro Tem, City
Secretary, City Manager, Chief Financial Officer and Assistant Finance Director are hereby
expressly authorized, empowered and directed from time to time and at any time to do and
perform all such acts and things and to execute, acknowledge and deliver in the name and on
behalf of the City all agreements, instruments, certificates or other documents, whether
mentioned herein or not, m may be necessary or desirable in order to carry out the terms and
provisions of this Ordinance and the issuance, sale and delivery of the Bonds. In addition, prior
to the initial delivery of the Bonds, the Mayor, Mayor Pro Tem, City Secretary, City Manager,
Chief Financial Officer, Assistant Finance Director or Bond Counsel to the City are each hereby
authorized and directed to approve any changes or corrections to this Ordinance or to any of the
documents authorized and approved by this Ordinance: (i) in order to cure any ambiguity, formal
defect, or omission in the Ordinance or such other document; or (ii) as requested by the Attorney
General of the State of Texas or his representative to obtain the approval of the Bonds by the
Attorney General. In the event that any officer of the City whose signature shall appear on any
document shall cease to be such officer before the delivery of such document, such signature
nevertheless shall be valid and sufficient for all purposes the same as if such officer had
remained in office until such delivery.
57105303.2111301627 26
SECTION 31: Public Meetine. 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., Govemment Code, Chapter 551, as amended.
SECTION 32: Effective Date. In accordance with the provisions of V.T.C.A.,
Government Code, Section 1201.028, as amended, this Ordinance shall be in force and effect
from and after its passage on the date shown below and it is so ordained.
[remainder ofpage left blank intentionally]
57105303.2/11301627 27
PASSED AND ADOPTED, this May 14, 2013.
CITY OF ALLEN, TEXAS
Ik' 442a
STEP EN TERRELL
Mayor
ATTEST:
SHELLEY B. G RGE
City Secretary
(City Seal)
57105303.2/11301627 [signature page of Bond Ordinance]
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
57105303 2/11301627 A-1
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT is entered into m of May 14, 2013 (this "Agreement"), by and
between The Bank of New York Mellon Trust Company, N.A., Dallas, Texas, a banking
association duly organized and existing under the laws of the United States of America, or its
successors or assigns (the `Bank") and the City of Allen, Texas (the "Issuer',
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the issuance of its "City of
Allen, Texas, General Obligation Bonds, Series 2013" (the "Securities"), dated June 1, 2013,
such Securities scheduled to he delivered to the initial purchasers thereof on or about June 5,
2013; 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 "Authorizing Document" (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 Authorizing Document.
The Bank hereby accepts its appointment, and agrees to serve as the Paying Agent and
Registrar for the Securities.
Section 1.02 Compensation. As compensation for the Bank's services as Paying
Agent/Registrar, the Issuer hereby agrees to pay the Bank the fees and amounts set forth in
Annex A attached hereto.
In addition, the Issuer agrees to reimburse the Bank upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Bank in accordance with any of
57105304 U11301627
the provisions hereof (including the reasonable compensation and the expenses and
disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01 Dermitions. 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.
"Authorizing Document" means the resolution, order, or ordinance of the
governing body of the Issuer pursuant to which the Securities are issued, as the
same may be amended or modified, including any pricing certificate related
thereto, certified by the secretary or any other officer of the Issuer and delivered
to the Bank.
"Bank Office" means the designated office of the Bank at the address
shown in Section 3.01 hereof. The Bank will notify the Issuer in writing of any
change in location of the Bank Office.
"Financial Advisor" — means Estrada Hincjosa & Company, Inc.
"Holder" and "Security Holder" each means the Person in whose name a
Security is registered in the Security Register.
"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 defrtition, 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
Authorizing Document).
"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
Authorizing Document.
"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
57105309 1/11301627
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 Authorizing Document
the principal of a Security is scheduled to be due and payable.
Section 2.02 Other Definitions. The terms `Bank," "Issuer," and "Securities
(Security)" have the meanings assigned to them in the recital paragraphs of this Agreement.
The term "Paying Agent/Registrar" refers to the Bank in the performance of the duties
and functions of this Agreement.
ARTICLE THREE
PAYING AGENT
Section 3.01 Duties of Pavine Aeent. As Paying Agent, the Bank shall pay, provided
adequate collected funds have been provided to it for such purpose by or on behalf of the Issuer,
on behalf of the Issuer the principal of each Security at its Stated Maturity, Redemption Date or
Acceleration Date, to the Holder upon surrender of the Security to the Bank at the following
address:
First Class/Registered/Certified Exoress Delivery/Courier By Hand Only
The Bank of New York Mellon The Bank of New York Mellon The Bank of New York Mellon Trust
Trust Company, N.A. Trust Company, N.A. Company, N.A.
Global Corporate Trust Global Corporate Trust Global Corporate Trust
P.O. Box 396 111 Sanders Creek Pkwy. Corporate Trust Window
East Syracuse, NY 13057 East Syracuse, NY 13057 101 Barclay Street, 1 st Floor East
New York NY 10286
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 (as defined in the Authorizing Document). 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 paying agent 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 on the dates specified in the Authorizing Document.
57105309.1/11301627
ARTICLE FOUR
REGISTRAR
Section 4.01 Security Register - Transfers and Exchanges. The Bank agrees to keep
and maintain for and on behalf of the Issuer at the Bank Office books and records (herein
sometimes referred to as the "Security Register") for recording the names and addresses of the
Holders of the Securities, the transfer, exchange and replacement of the Securities and the
payment of the principal of and interest on the Securities to the Holders and containing such
other information as may be reasonably required by the Issuer and subject to such reasonable
regulations as the Issuer and the Bank may prescribe. All transfers, exchanges and replacements
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, such written instrument to be in a form satisfactory to the Bank and 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 Securities. The Issuer shall provide additional Securities when needed to
facilitate transfers or exchanges thereof The Bank covenants that such additional Securities, if
and when provided, will be kept in safekeeping pending their use and reasonable care will be
exercised by the Bank in maintaining such Securities in safekeeping, which shall be not less than
the care maintained by the Bank for debt securities of other governments or corporations for
which it serves as registrar, or that is maintained for its own securities.
Section 4.03 Form of Security Register. The Bank, as Registrar, will maintain the
Security Register relating to the registration, payment, transfer and exchange of the Securities in
accordance with the Bank's general practices and procedures in effect from time to time. The
Bank shall not be obligated to maintain such Security Register in any form other than those
which the Bank has currently available and currently utilizes at the time.
The Security Register may be maintained in written form or in any other form capable of
being converted into written form within a reasonable time.
Section 4.04 List of Security Holders. The Bank will provide the Issuer at any time
requested by the Issuer, upon payment of the required fee, a copy of the information contained in
the Security Register. The Issuer may also inspect the information contained in the Security
57105304 1/11301627 4
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 Securities. The Bank will, at such reasonable
intervals as it determines, surrender to the Issuer, all Securities in lieu of which or in exchange
for which other Securities have been issued, or which have been paid.
Section 4.06 Mutilated, Destroyed, Lost or Stolen Securities. The Issuer hereby
instructs the Bank, subject to the provisions of the Authorizing Document, 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, 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 mutilated, 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 home by the Holder of the Security mutilated,
destroyed, lost or stolen.
Section 4.07 Transaction Information to Issuer. The Bank will, within a reasonable
time after receipt of written request from the Issuer, furnish the Issuer information as to the
Securities it has paid pursuant to Section 3.01, Securities it has delivered upon the transfer or
exchange of any Securities pursuant to Section 4.01, and Securities it has delivered in exchange
for or in lieu of mutilated, destroyed, lost, or stolen Securities pursuant to Section 4.06.
ARTICLE FIVE
THE BANK
Section 5.01 Duties of Bank. The Bank undertakes to perform the duties set forth
herein and agrees to use reasonable care in the performance thereof.
Section 5.02 Reliance on Documents, Etc.
(a) The Bank may conclusively rely, as to the truth of the statements and correctness
of the opinions expressed therein, on certificates or opinions furnished to the Bank.
5]105304.1/1130162]
(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 the Issuer.
(e) The Bank may consult with counsel, and the written advice of such counsel or any
opinion of counsel shall be full and complete authorization and protection with respect to any
action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon.
(f) The Bank may exercise any of the powers hereunder and perform any duties
hereunder either directly or by or through agents or attorneys of the Bank.
(g) The Bank is also authorized to transfer funds relating to the closing and initial
delivery of the Securities in the manner disclosed in the closing memorandum or letter as
prepared by the Issuer, the Financial Advisor or other agent. The Bank may act on a facsimile or
e-mail transmission of the closing memorandum or letter acknowledged by the Issuer, the
Issuer's financial advisor or other agent as the final closing memorandum or letter. The Bank
shall not be liable for any losses, costs or expenses arising directly or indirectly from the Bank's
reliance upon and compliance with such instructions.
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.
57105304 1/11301627 6
Section 5.05 Moneys Held by Bank - Paving Agent Account/Collateralization. A
paying agent account shall at all times be kept and maintained by the Bank for the receipt,
safekeeping, and disbursement of moneys received from the Issuer under this Agreement 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 paying agent accounts to the extent
such money is not insured by the Federal Deposit Insurance Corporation. Payments made from
such paying agent account shall be made by check drawn on such account unless the owner of
the Securities shall, at its own expense and risk, request an alternative method of payment.
Subject to the applicable unclaimed property laws of the State of Texas, any money
deposited with the Bank for the payment of the principal of, premium (if any), or interest on any
Security and remaining unclaimed for three years after final maturity of the Security has become
due and payable will be held by the Bank and disposed of only in accordance with Title 6 of the
Texas Property Code, as amended. The Bank shall have no liability by virtue of actions taken in
compliance with this provision.
The Bank is not obligated to pay interest on any money received by it under this
Agreement.
This Agreement relates solely to money deposited for the purposes described herein, and
the parties agree that the Bank may serve as depository for other funds of the Issuer, act as
trustee under indentures authorizing other bond transactions of the Issuer, or act in any other
capacity not in conflict with its duties hereunder.
Section 5.06 Indemnification. To the extent permitted by law, the Issuer agrees to
indemnify the Bank for, and hold it harmless against, any loss, liability, or expense incurred
without negligence or bad faith on its part, arising out of or in connection with its acceptance or
administration of its duties hereunder, including the cost and expense against any claim or
liability in connection with the exercise or performance of any of its powers or duties under this
Agreement.
Section 5.07 Interpleader. The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over its person as well as funds on
deposit, in either a Federal or State District Court located in the state and county where the
administrative office of the Issuer is located, and agree that service of process by certified or
registered mail, return receipt requested, to the address referred to in Section 6.03 of this
Agreement shall constitute adequate service. The Issuer and the Bank further agree that the
Bank has the right to file a Bill of Interpleader in any court of competent jurisdiction in the State
of Texas to determine the rights of any Person claiming any interest herein.
In the event the Bank becomes involved in litigation in connection with this Section, the
Issuer, to the extent permitted by law, agrees to indemnify and save the Bank harmless from all
loss, cost, damages, expenses, and attorney fees suffered or incurred by the Bank as a result. The
obligations of the Bank under this Agreement shall be performable at the principal corporate
office of the Bank in the City of Dallas, Texas.
57105304.1/11301637 7
Section 5.08 DTC Services. It is hereby represented and warranted that, in the event
the Securities are otherwise qualified and accepted for "Depository Trust Company" services or
equivalent depository trust services by other organizations, the Bank has the capability and, to
the extent within its control, will comply with the "Operational Arrangements", which
establishes requirements for securities to be eligible for such type depository trust services,
including, but not limited to, requirements for the timeliness of payments and funds availability,
transfer turnaround time, and notification of redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment. This Agreement may be amended only by an agreement in
writing signed by both of the parties hereto.
Section 6.02 Assignment. This Agreement may not be assigned by either party without
the prior written consent of the other.
Section 6.03 Notices. Any request, demand, authorization, direction, notice, consent,
waiver, or other document provided or permitted hereby to be given or furnished to the Issuer or
the Bank shall be mailed or delivered to the Issuer or the Bank, respectively, at the addresses
shown on the signature page hereof.
Section 6.04 Effect of Headings. The Article and Section headings herein are for
convenience of reference only and shall not affect the construction hereof.
Section 6.05 Successors and Assigns. All covenants and agreements herein by the
Issuer shall bind its successors and assigns, whether so expressed or not.
Section 6.06 Severability. In case any provision herein shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 6.07 Mercer, Conversion, Consolidation, or Succession. Any corporation or
association into which the Bank may be merged or converted or with which it may be
consolidated, or any corporation or association resulting from any merger, conversion, or
consolidation to which the Bank shall be a party, or any corporation or association succeeding to
all or substantially all of the corporate trust business of the Bank shall be the successor of the
Bank as Paying Agent under this Agreement without the execution or filing of any paper or any
further act on the part of either parties hereto.
Section 6.08 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 6.09 Entire Agreement. This Agreement and the Authorizing Document
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 Authorizing
Document, the Authorizing Document shall govern.
57105304.1/11301627 8
Section 6.10 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 6.11 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 has been given to the Holders of the Securities of the appointment of a successor Paying
Agent/Registrar. However, if the Issuer fails to appoint a successor Paying Agent/Registrar
within a reasonable time, the Bank may petition a court of competent jurisdiction within the State
of Texas to appoint a successor. Furthermore, the Bank and the 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 the other pertinent books and
records relating to the Securities, to the successor Paying Agent/Regisuar designated and
appointed by the Issuer.
The provisions of Section 1.02 and of Article Five shall survive and remain in full force
and effect following the termination of this Agreement.
Section 6.12 Governing Law, This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas.
[Remainder ojpage left blank intentionally.]
57105304.1/11301627
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year fust above written.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas
Address: 2001 Bryan Street, I I" Floor
Dallas, Texas 75201
Attest:
CITY OF ALLEN, TEXAS
By:
STEPHEN TERRELL, Mayor
Address: One Allen Civic Plaza
Allen, Texas 75013
Attest:
SHELLEY B. GEORGE, City Secretary
571053" 1/113 01627 [signature page to Paying Agent/Registrar Agreement]
57105304 1/11301627 A-1
EXHIBIT B
BOND PURCHASE AGREEMENT
57105303 2/11301627 B'1
Bond Purchase Agreement
City of Allen, Texas
$5,065,000
General Obligation Bonds, Series 2013
City of Allen, Texas
305 Century Parkway
Allen, Texas 75013-8042
May 14, 2013
Ladies and Gentlemen:
The undersigned, Stifel, Nicolaus & Company, Incorporated (the "Underwriterl, acting
solely as the Underwriter, offers to enter into the following agreement (this "AgreemenfI with the
City of Allen, Texas (the "Issuer'l which, upon the Issuer's written acceptance of this offer, will be
binding upon the Issuer and upon the Underwriter. This offer is made subject to the Issuer's written
acceptance hereof on or before 11:00 p.m., Dallas, Texas time, on May 14, 2013, and, if not so
accepted, will be subject to withdrawal by the Underwriter upon written notice delivered to the
Issuer at any time prior to the acceptance hereof by the Issuer. Terms not otherwise defined in this
Agreement shall have the same meanings set forth in the Ordinance (as defined herein) or in the
Official Statement (as defined herein).
1. Purchase and Sale of the Bonds. Subject to the terms and conditions and in
reliance upon the representations, warranties and agreements set forth herein, the Underwriter
hereby agrees to purchase from the Issuer, and the Issuer hereby agrees to sell and deliver to the
Underwriters, all, but not less than all, of the Issuer's $5,065,000 General Obligation Bonds, Series
2013 (the "Bonds"). Inasmuch as this purchase and sale represents a negotiated transaction, the
Issuer acknowledges and agrees that: (i) the transaction described in this Agreement is an arm's
length, commercial transaction between the Issuer and the Underwriter in which the Underwriter is
acting solely as a principal and is not acting as a financial advisor or fiduciary to the Issuer, (ii) the
Underwriter has not assumed any advisory or fiduciary responsibility to the Issuer with respect to
the transaction described herein and the discussions, undertakings and procedures leading thereto
(irrespective of whether the Underwriter has.provided other services or are currently providing other
services to the Issuer on other matters); (iii) the Underwriter is acting solely in its capacity as
underwriter for its own accounts, (iv) the only obligations the Underwriter has to the Issuer with
respect to the transaction described herein expressly are set forth in this Agreement; and (v) the
Issuer has consulted its own legal, accounting, tax, financial and other advisors, as applicable, to the
extent it has deemed appropriate.
The principal amount of the Bonds to be issued, the dated date therefor,- the maturities,
sinking fund and optional redemption provisions, prices or yields' and interest rates per annum are
set forth is attached as Schedule I hereto. The Bonds shall be as described in, and shall be issued
and secured under and pursuant to the provisions of, the Ordinance adopted by the City Council of
the Issuer on May 14, 2013 (the "Ordinance'o.
The purchase price for the Bonds shall be $5,380,583.55 (which reflects the principal
amount of the Bonds, less anunderwriting discount of $34,487.40, plus a premium of $350,070.95).
Delivered to the Issuer herewith as a good faith deposit is a corporate check of the
Underwriter payable to the order of the Issuer in clearing house funds in the amount of $50,650.00.
In the event the Issuer accepts this Agreement, such check shall be held uncashed by the Issuer until
the time of Closing, at which time such check shall be returned uncashed to the Underwriter. In the
event that the Issuer does not accept.this Agreement, such check will be immediately returned to the
Underwriter. Should the Issuer fail to deliver the Bonds at the Closing, or should the Issuer be
unable to satisfy the conditions of the obligations of the Underwriter to purchase, accept delivery of
and pay for the Bonds, as set forth in this Agreement (unless waived by the Underwriter), or should
such obligations of the Underwriter be terminated for any reason permitted by this Agreement, such
check shall immediately be returned to the Underwriter. In the event that the Underwriter fails
(other than for a reason permitted hereunder) to purchase, accept delivery of and pay for the Bonds
at the Closing as herein provided, such check shall be cashed and the amount thereof retained by the
Issuer as and for fully liquidated damages for such failure of the Underwriter, and, except as set
forth in Sections 8 and 10 hereof, no party shall have any further rights against the other hereunder.
The Underwriter and the Issuer understand that in such event the Issuer's actual damages may be
greater or may be less than such amount. Accordjngly, the Underwriter hereby waives any right to
claim that the Issuer's actual damages are less than such amount, and the Issuer's acceptance of this
Agreement shall constitute a waiver of any right the Issuer may have to additional damages from
the Underwriter. The Underwriter hereby agrees not to stop or cause payment on such check to be
stopped unless the Issuer has breached any material term of this Agreement.
2. Public Offering. The Underwriter agrees to make a bona fide public offering of all
of the Bonds at a price not to exceed the public offering price set forth on the inside cover of the
Official Statement and may subsequently change such offering price without any requirement of
prior notice. The Underwriter may offer and sell Bonds to certain dealers (including dealers
depositing Bonds into investment trusts) and others at prices lower than the public offering price
stated on the inside cover of the Official Statement, provided that on or before the Closing, the
Underwriter shall execute and deliver to Bond Counsel an issue price certificate prepared by Bond
Counsel verifying the initial offering prices to the public at which the Underwriter reasonably
expected to sell or in fact sold a substantial amount of each stated maturity of the Bonds to the
public.
3. The O,Tzeial Statement.
(a) The Issuer previously has delivered, or caused to be delivered, copies in a
"designated electronic format" as defined in and specified by Rule G-32 of the Muncipal
Securities Rulemaking Board .(the "MSRB'D of the Preliminary Official Statement dated
May 3, 2013 (the "Preliminary Oficial Statement"), to the Underwriter. The Issuer will
prepare or cause to be prepared a final Official Statement relating to the Bonds, which will
be (1) dated the date of this Agreement, (2) complete within the meaning of the United
States Securities and Exchange Commission's Rule 15c2-12, as amended (the "Rule"), and
(3) substantially in the form of the most recent version of the Preliminary Official Statement
provided to the Underwriter before the execution hereof. Such final Official Statement,
including the cover page thereto, all exhibits, appendices, maps, charts, pictures, diagrams,
reports, and statements included or incorporated therein or attached thereto, and' all
amendments and supplements thereto that may be authorized for use with respect to the
Bonds, is herein referred to as the "Official Statement." Until the Official Statement has
been prepared and is available for distribution, the Issuer shall provide, or cause to be
provided to the Underwriter the Preliminary Official Statement in a "designated electronic
format" so that the Underwriter may satisfy its obligations under the Rule with respect to
distribution to each potential customer, upon request, of a copy of the Preliminary Official
Statement.
(b) The Preliminary Official Statement has been prepared for use by the
Underwriter in connection with the public offering, sale and distribution of the Bonds. The
Issuer hereby represents and warrants that the Preliminary Official Statement was deemed
final by the Issuer as of its date, except for the omission of such information which is
dependent upon the final pricing of the Bonds for completion, all as permitted to be
excluded by Section (b)(1) of the Rule.
(c) The Issuer hereby authorizes the Official Statement and the information
therein contained to be used by the Underwriter in connection with the public offering and
the sale of the Bonds. The Issuer consents to the use by the Underwriter prior to the date
hereof of the Preliminary Official Statement in connection with the public offering of the
Bonds. The Issuer shall provide, or cause to be provided, to the Underwriter as soon as
practicable after the date of the Issuer's acceptance of this Agreement (but, in any event, not
later than within seven business days after the Issuer's acceptance of this Agreement and in
sufficient time to accompany any confirmation that requests payment from any customer)
copies of the Official Statement which is complete as of the date of its delivery to the
Underwriter in such quantity as the Underwriter shall reasonably request in order for the
Underwriter to comply with Section (b)(4) of the Rule and the rules of the MSRB. The
Issuer hereby confirms that it does not object to the distribution of the Preliminary Official
Statement or Official Statement in electronic form.
(d) If, after the date of this Agreement to and including the date the Underwriter
is no longer required to provide an Official Statement to potential customers who request the
same pursuant to the Rule (the earlier of (i) 90 days from the "end of the underwriting
period" (as defined in the Rule) and (ii) the time when the Official Statement is available to
any person from the MSRB, but in no case less than 25 days after the "end of the
underwriting period" for the Bonds), the Issuer becomes aware of any fact or event which
might or would cause the Official Statement, as then supplemented or amended, to contain
any untrue statement of a material fact or to omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or if it is necessary to amend or supplement the
Official Statement to comply with law, the Issuer will notify the Underwriter (and for the
purposes of this clause provide the Underwriter with such information as it may from time to
time reasonably request), and if, in the reasonable opinion of the Underwriter, such fact or
event requires preparation and publication of a supplement or amendment to the Official
Statement, the Issuer will forthwith prepare and furnish, at the Issuer's own expense (in a
form and manner approved by the Underwriter, such approval not to be unreasonably
withheld), a reasonable number of copies of either amendments or supplements to the
Official Statement so that the statements in the Official Statement as so amended and
supplemented will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or so that the
Official Statement will comply with law provided, however, that for all purposes of this
Agreement and any certificate delivered by the Issuer in accordance herewith, the Issuer
makes no representations with respect to the descriptions in the Preliminary Official
Statement or the Official Statement of The Depository Trust Company, New York, New
York ("DTC"), or its book -entry -only system. If such notification shall be subsequent to the
Closing, the Issuer shall famish such legal opinions, certificates, instruments and other
documents as the Underwriter may deem reasonably necessary to evidence the truth and
accuracy of such supplement or amendment to the Official Statement.
(e) The Underwriter hereby agrees to timely file or cause to be filed, the Official
Statement (and any amendment or supplement to the Official Statement prepared in
accordance with Section 3(d) above) with (i) the MSRB or its designee (including the
MSRB's Electronic Municipal Market Access System) or (ii) other repositories required
from time to time by the SEC (either in addition to or in lieu of the filing referred to in
clause (i) above) with the MSRB. Unless otherwise notified in writing by the Underwriter,
the Issuer can assume that the "end of the underwriting period" for purposes of the Rule is,
the date of the Closing.
4. Representations, Warranties and Covenants of the Issuer. The Issuer hereby
represents and warrants to and covenants with the Underwriter that:
(a) The Issuer is a political subdivision of the State of Texas (the "State") duly
created, organized and existing under the laws of the State, and has full legal right, power
and authority under the Texas Government Code, Chapter 1207 (the "Act"), and the Issuer's
Home Rule Charter and at the date of the Closing will have full legal right, power and
authority under the Act and the Ordinance (i) to adopt the Ordinance and to enter into,
execute and deliver this Agreement and all documents required hereunder and thereunder to
be executed and delivered by the Issuer (this Agreement, the Ordinance and the other
documents referred to in this clause (i) are hereinafter referred to as the "Issuer
Documents"), (ii) to sell, issue and deliver the Bonds to the Underwriter as provided herein,
and (iii) to carry out and consummate the transactions described in the Issuer Documents
and the Official Statement and (iv) to utilize the proceeds from the sale of the Bonds for the
purposes as described in the Official Statement, and the Issuer has complied, and will at the
Closing be in compliance, in all material respects, with the terms of the applicable state law
(including the Act), the Issuer's Home Rule Charter and the Issuer Documents as they
pertain to such transactions;
(b) By all necessary official action of the Issuer prior to or concurrently with the
acceptance hereof, the Issuer has duly authorized all necessary action to be taken by it for (i)
the adoption of the Ordinance and the issuance and sale of the Bonds, (ii) the approval,
execution and delivery of, and the performance by the Issuer of the obligations on its part,
contained in the Bonds and the Issuer Documents and (iii) the consummation by it of all
other transactions described in the Official Statement, the Issuer Documents and any and all
such other agreements and documents as may be required to be executed, delivered and/or
received by the Issuer in order to carry out, give effect to, and consummate the transactions
described herein and in the Official Statement;
(c) The Issuer Documents constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their respective terms, subject to
principles of sovereign immunity, bankruptcy, insolvency, reorganization, moratorium and
other similar laws and principles of equity relating to or affecting the enforcement of
creditors' rights; the Bonds, when issued, delivered and paid for, in accordance with the
Ordinance and this Agreement, will constitute legal, valid and binding obligations of the
Issuer entitled to the benefits of the Ordinance and enforceable in accordance with their
terms, subject to municipal sovereign immunity, bankruptcy, insolvency, reorganization,
moratorium and other similar laws and principles of equity relating to or affecting the
enforcement of creditors' rights; upon the issuance, authentication and delivery of the Bonds
as aforesaid, the Ordinance will provide, for the benefit of the holders, from time to time, of
the Bonds, the legally valid and binding pledge of and lien it purports to create as set forth in
the Ordinance;
(d) To the best of its knowledge, the Issuer is not in breach of or default in any
material respect under any applicable constitutional provision, law or administrative
regulation of the State or the United States or any applicable judgment or decree or any loan
agreement, indenture, bond, note, resolution, agreement or other instrument to which the
Issuer is a party or to which the Issuer is otherwise subject, and no event has occurred and is
continuing which constitutes or with the passage of time or the giving of notice, or both,
would constitute a default or event of default by the Issuer under any of the foregoing; and
the execution and delivery., of the Bonds, the Issuer Documents and the adoption of the
Ordinance and compliance with the provisions on the Issuer's part contained therein, will
not conflict with or constitute a breach of or default under any constitutional provision, law
or administrative regulation, judgment, decree, loan agreement, indenture, bond, note,
resolution, agreement or other instrument to which the Issuer is a party or to which the
Issuer is otherwise subject or under the terms of any such law, regulation or instrument,
except as provided by the Bonds and the Ordinance;
(e) All authorizations, approvals, licenses, permits, consents and orders of any
governmental authority, legislative body, board, agency or commission having jurisdiction
of the matter which are required for the due authorization of, which would constitute a
condition precedent to, or the absence of which would materially adversely affect the due
performance by the Issuer of its obligations under the Issuer Documents and the Bonds have
been duly obtained, except for (i) the approval of the Bonds by the Attorney General of the
State of Texas (and registration of the Bonds by the Comptroller of Public Accounts of the
State of Texas); and (ii) such approvals, consents and orders as may be required under the
Blue Sky or securities laws of any jurisdiction in connection with the offering and sale of the
Bonds;
(i) The Bonds and the Ordinance conform to the descriptions thereof contained
in the Official Statement under the caption "The Bonds"; and the proceeds of the sale of the
Bonds will be applied generally as described in the Official Statement under the caption
"Plan of Financing".
(g) There is no litigation, action, suit, proceeding, inquiry or investigation, at law
or in equity, before or by any court, government agency, public board or body, pending or,
to the best knowledge of the Issuer, threatened against the Issuer, affecting the existence of
the Issuer or the titles of its officers to their respective offices, or affecting or seeking to
prohibit, restrain or enjoin the sale, issuance or delivery of the Bonds or the pledge, levy and
collection of the ad valorem taxes pursuant to the Ordinance or in any way contesting or
affecting the validity or enforceability of the Bonds or the Issuer Documents, or contesting
the exclusion from gross income of interest on the Bonds for federal income tax purposes, or
contesting in any way the completeness or accuracy of the Preliminary Official Statement or
the Official Statement or any supplement or amendment thereto, or contesting the powers of
the Issuer or any authority for the issuance of the Bonds, the adoption of the Ordinance or
the execution and delivery of the Issuer Documents, nor, to the best knowledge of the Issuer,
is there any basis therefor, wherein an unfavorable decision, ruling or finding would
materially adversely affect the validity or enforceability of the Bonds or the Issuer
Documents;
(h) As of the date thereof, the Preliminary Official Statement did not contain any
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(i) At the time of the Issuer's acceptance hereof and (unless the Official
Statement is amended or supplemented pursuant to paragraph (d) of Section 3 of this
Agreement) at all times subsequent thereto during the period up to and including the date of
Closing, the Official Statement does not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading;
0) If the Official Statement is supplemented or amended pursuant to paragraph
(d) of Section 3 of this Agreement, at the time of each supplement or amendment thereto and
(unless subsequently again supplemented or amended pursuant to such paragraph) at all
times subsequent thereto during the period up to and including the date of Closing the
Official Statement as so supplemented or amended will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which there were made, not
misleading;
(k) The Issuer will apply, or cause to be applied, the proceeds from the sale of
the Bonds as provided in and subject to all of the terms and provisions of the Ordinance and
will not take or omit to take any action which action or omission will adversely affect the
exclusion from gross income for federal income tax purposes of the interest on the Bonds;
(1) The Issuer will famish such information and execute such instruments and
take such action in cooperation with the Underwriter as the Underwriter may reasonably
request, at no expense to the Issuer, (A) to (y) qualify the Bonds for offer and sale ander the
Blue Sky or other securities laws and regulations of such states and other jurisdictions in the
United States as the Underwriter may designate and (z) determine the eligibility of the
Bonds for investment under the laws of such states and other jurisdictions and (B) to
continue such qualifications in effect so long as required for the distribution of the Bonds
(provided, however, that the Issuer will not be required to qualify as a foreign corporation or
to file any general or special consents to service' of process under the laws of any
jurisdiction) and will advise the Underwriter immediately of receipt by the Issuer of any
notification with respect to the suspension of the qualification of the Bonds for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose;
(m) The financial statements of, and other financial information regarding, the
Issuer in the Official Statement fairly present the financial position and results of operations
and condition of the Issuer as of the dates and for the periods therein set forth. Prior to the
Closing, the Issuer will not take any action within or under its control that will cause any
adverse change of a material nature in such financial position, results of operations or
condition, financial or otherwise, of the Issuer since the dates of such statements and
information. The Issuer is not a party to any litigation or other proceeding pending or, to its
knowledge, threatened which, if decided adversely to the Issuer, would have a materially
adverse effect on the financial condition of the Issuer;
(n) Prior to the Closing, and except in the ordinary course of business, the Issuer
will not offer or issue any bonds, notes or other obligations for borrowed money or incur any
material liabilities (except in the ordinary course of business), direct or contingent, payable
from or secured by any of the ad valorem tax revenues which will secure the Bonds without
the prior approval of the Underwriter, such approval not to be unreasonably withheld;
(o) Any certificate,signed by any official of the Issuer authorized to do so in
connection with the. transactions described in this Agreement, shall be deemed a
representation and warranty by the Issuer to the Underwriter as to the statements made
therein;
(p) The Issuer covenants that between the date hereof and the Closing it will take
no actions within or under its control which will cause the representations and warranties
made in this Section to be untrue as of the Closing; and
(q) During the past five years; the Issuer has complied in all material respects
with all previous undertakings required pursuant to Rule 15c2-12 promulgated by the United
States Securities Exchange Commission under the Securities Exchange Act of 1934, as
amended.
By delivering the Official Statement to the Underwriter, the Issuer shall be deemed
to have reaffirmed, with respect to the Official Statement, the representations, warranties
and covenants set forth above with respect to the Preliminary Official Statement.
5. Closing.
(a) At 10:00 a.m., Dallas, Texas time, on June 5, 2013, or at such other time and
date as shall have been mutually agreed upon by the Issuer and the Underwriter (the
"Closing Date"), the Issuer will, subject to the terms and conditions hereof, deliver to the
Underwriter the initial Bond registered in the name of the Underwriter, in temporary form,
together with the other documents hereinafter mentioned, and will have available for
immediate exchange definitive Bonds deposited with DTC, or deposited with the Paying
Agent/Registrar, if the Bonds are to be held in safekeeping for DTC by the Paying
Agent/Registrar pursuant to DTC's FAST system and the Ordinance, duly executed and
authenticated in the form and manner described below, and the Underwriter will, subject to
the terms and conditions hereof, accept such delivery and pay the purchase price of the
Bonds as set forth in Section I hereof in immediately available funds (such events being
referred to herein as the "Closing"). Immediately following such payment by the
Underwriter, the Issuer shall return to the Underwriter, the check referred to in Section 1
hereof. Payment for the Bonds as aforesaid shall be made at the offices of the paying
agent/registrar or such other place as shall have been mutually agreed upon by the Issuer and
the Underwriter.
(b) Delivery of the definitive Bonds in exchange for the initial Bond shall be
made through DTC, utilizing the book -entry only form of issuance, and the Issuer agrees to
enter into such agreement, including a "Letter of Representations," as may be required to
allow for the use of such book -entry only system. The definitive Bonds shall be delivered in
fully registered form bearing CUSIP numbers without coupons with one Bond for each
maturity registered in the name of CEDE & CO. and shall be made available to the
Underwriter at least one business day before the Closing Date for purposes of inspection,
except that the failure to include CUSIP numbers or the printing of an incorrect CUSIP
number on any Bond shall not be a default under this Agreement.
6. Closing Conditions. The Underwriter has entered into this Agreement in reliance
upon the representations, warranties and agreements of the Issuer contained herein, and in reliance
upon the representations, warranties and agreements to be contained in the documents and
instruments to be delivered at the Closing and upon the performance by the Issuer of its obligations
hereunder, both as of the date hereof and as of the date of the Closing. Accordingly, the
Underwriter's obligations under this Agreement to purchase, to accept delivery of and to pay for the
Bonds shall be conditioned upon the performance by the Issuer of its obligations to be performed
hereunder and under such documents and instruments at or prior to the Closing, and shall also be
subject to the following additional conditions, including the delivery by the Issuer of such
documents as are enumerated herein, in form and substance reasonably satisfactory to the
Underwriter:
(a) The representations and warranties of the Issuer contained herein shall be
true, complete and correct in all material respects on the date hereof and on and as of the
date of the Closing, as if made on the date of the Closing;
(b) The Issuer shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by it prior to or at
the Closing;
(c) At the time of the Closing, (i) the Issuer Documents and the Bonds shall be
in full force and effect and shall not have been amended, modified or supplemented, and the
Official Statement shall not have been supplemented or amended, except in any such case as
may have been agreed to by the Underwriter or as required by the Attorney General of
Texas, which amendments, modifications or supplements shall not require Underwriter
approval; and (ii) all actions of the Issuer required to be taken by the Issuer shall be
performed in order for Bond Counsel to deliver its opinions referred to hereafter;
(d) At the time of the Closing, all official action of the Issuer relating to the
Bonds and the Issuer Documents shall be in full force and effect and shall not have been
amended, modified or supplemented except in any such case as may have been agreed to by
the Underwriter;
(e) At or prior to the Closing, the Ordinance shall have been duly adopted by the
City Council in accordance with law, and the Issuer shall have duly executed and delivered
and the Paying Agent/Registrar shall have duly authenticated the Bonds;
(f) At the time of the Closing, there shall not have occurred any change or any
development involving a prospective change in the condition, financial or otherwise, or in
the revenues or operations of the Issuer, from that set forth in the Official Statement that in
the reasonable judgment of the Underwriter, is material and adverse and that makes it, in the
reasonable judgment of the Underwriter, impracticable to market the Bonds on the terms and
in the manner described in the Official Statement;
(g) The Issuer shall not have failed to pay principal or interest when due on any
of its outstanding obligations for borrowed money;
(h) All steps to be taken and all instruments and other documents to be executed,
and all other legal matters in connection with the transactions described in this Agreement
shall be reasonably satisfactory in legal form and effect to the Underwriter;
(i) At or prior to the Closing, the Underwriter shall have received one copy of
each of the following documents:
(1) the Official Statement, and each supplement or amendment thereto, if
any, approved by the City Council in the Ordinance;
(2) the Ordinance with such supplements or amendments as may have
been agreed to by the Underwriter or required by the Attorney General of Texas;
(3) the approving opinion of Bond Counsel with respect to the Bonds, in
substantially the form attached to the Official Statement;
(4) a supplemental opinion of Bond Counsel addressed to the
Underwriter, substantially to the effect that:
(i) the Ordinance has been duly adopted by the Issuer and is in
full force and effect;
(ii) the Bonds are exempted securities under the Securities Act of
1933, as amended (the "1933 Act"), and the Trust Indenture -Act of 1939, as
amended (the "Trust Indenture Act') and it is not necessary, in connection
with the offering and sale of the Bonds, to register the Bonds under the 1933
Act or to qualify the Ordinance under the Trust Indenture Act; and
(iii) except to the extent therein, said firm has not verified and is
not passing upon, and does not assume any responsibility for the accuracy,
completeness or fairness of the statements and information contained in the
Official Statement but that said firm has reviewed the statements and
information contained in the Official Statement under the captions and
subcaptions "Plan of Financing" (except the subcaption "Use of Proceeds"),
"The Bonds" (except under the subcaptions "Book -Entry -Only System,"
"Bondholders' Remedies" and the last sentence under "Tax Rate
Limitation"), "Tax Matters," "Continuing Disclosure of Information" (except
for the information under the suboaption "Compliance with Prior
Undertakings"), "Other Information — Legal Investments and Eligibility to
Secure Public Funds in Texas," "Other Information — Registration and
Qualification of Bonds for Sale" and "Other Information — Legal Matters"
(except for the last two sentences of the first paragraph thereof), and such
firm is of the opinion that the information relating to the Bonds and the legal
matters contained under such captions and subcaptions is an accurate and fair
description of the laws and legal issues addressed therein and, with respect to
the Bonds, such information conforms to the Ordinance;
(5) An opinion, dated the date of the Closing and addressed to the
Underwriter, of counsel for the Underwriter, to the effect that:
(i) the Bonds are exempted securities under the 1933 Act and the
Trust Indenture Actand it is not necessary, in connection with the offering
and sale of the Bonds, to register the Bonds under the 1933 Act and the
Ordinance need not be qualified under the Trust Indenture Act; and
10
(ii) based upon their participation in the preparation of the Official
Statement as counsel for the Underwriter and their participation at
conferences at which the Official Statement was discussed, but without
having undertaken to determine independently the accuracy, completeness or
fairness of the statements contained in the Official Statement, such counsel
has no reason to believe that the Official Statement contains any untrue
statementofa material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading (except for any financial, forecast, technical and
statistical statements and data included in the Official Statement and the
information regarding the Depository and its book -entry system as to which
no view need be expressed);
(6) A certificate, dated the date of Closing, of an appropriate official of
the Issuer to the effect that (i) the representations and warranties of the Issuer
contained herein are true and correct in all material respects on and as of the date of
Closing as if made on the date of Closing; (ii) no litigation or proceeding or material
tax challenge against the Issuer is pending or, to their knowledge, threatened in any
court or administrative body nor is there a basis for litigation which would (a)
contest the right of 'the members, officers or officials of the Issuer to hold dad
exercise their respective positions, (b) contest the due organization and valid
existence of the Issuer, (c) contest the validity, due authorization and execution of
the Bonds or the Issuer Documents or (d) attempt to limit, prohibit, restrain or enjoin
or otherwise restrict or prevent the Issuer from functioning and levying and
collecting ad valorem tax revenues, pledged to pay principal of and interest on the
Bonds, or the pledge thereof; (iii) the Ordinance has been duly adopted by the Issuer,
is in full force and effect and has not been modified, amended or repealed; (iv) to the
best of their knowledge, no event affecting the Issuer has occurred since the date of
the Official Statement which should be disclosed in the Official Statement for the
purpose for which it is to be used or which it is necessary to disclose therein in order
to make the statements and information therein, in light of the circumstances under
which they were made, not misleading in any material respect as of the time of
Closing, and the information contained in the Official Statement is correct in all
material respects and, as of the date of the Official Statement did not, and as of the
date of the Closing does not, contain any untrue statement of a material fact or omit
to - state a material fact required to be stated therein or necessary to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading; and (v) the Issuer is authorized to include the audited financial
statements for fiscal year ended September 30, 2012, prepared by Weaver and
Tidwell, L.L.P., and their report thereon, in the Official Statement; and (vi) there has
not been any material adverse change in the financial condition of the Issuer since
September 30, 2012, the latest date as of which audited financial information is
available;
(7) A certificate of the Issuer in form and substance satisfactory to Bond
Counsel and counsel to the Underwriter setting forth the facts, estimates and
Il
circumstances in existence on the date of the Closing, which establish that it is not
expected that the proceeds of the Bonds will be used in a manner that would cause
the Bonds. to be "arbitrage bonds" within the meaning of Section 148 of the Internal
Revenue Code of 1986, as amended (the "Code', and any applicable regulations
(whether final, temporary or proposed) issued pursuant to the Code;
(8) Any other certificates and opinions required by the Ordinance for the
issuance thereunder of the Bonds;
(9) The approving opinion of the Attorney General of the State of Texas
and the registration certificate of the Comptroller of Public Accounts of the State of
Texas in respect of the Bonds;
(10) Evidence satisfactory to the Underwriter that the Bonds have been
rated "Aal" and "AAA" by Moody's Investors Service, Inc. and Standard & Poor's
Ratings Services, a Standard & Poor's Financial Services LLC business,
respectively, without regard to credit enhancements and that both such ratings are in
effect as of the date of Closing;
(11) [Intentionally omitted];
(12) [Intentionally omitted]; and
(13) Such additional legal opinions, certificates, instruments and other
documents as the Underwriter or counsel to the Underwriter may reasonably request
to evidence the truth and accuracy, as of the date hereof and as of the date of the
Closing, of the Issuer's representations and warranties contained herein and of the
statements and information contained in the Official Statement and the due
performance or satisfaction by the Issuer on or prior to the date of the Closing of all
the respective agreements then to be performed and conditions then to be satisfied by
the Issuer.
All of the opinions, letters, certificates, instruments and other documents mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof if, but
only if, they are in form and substance reasonably satisfactory to Bond Counsel and the
Underwriter.
If the Issuer shall be unable to satisfy the conditions to the obligations of the Underwriter to
purchase, to accept delivery of and to pay for the Bonds contained in this Agreement, or if the
obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds shall be
terminated for any reason permitted by this Agreement, this Agreement shall terminate and neither
the Underwriter nor the Issuer shall be under any further obligation hereunder, except that the
respective obligations of the Issuer and the Underwriter set forth in Section 8 hereof shall continue
in full force and effect.
12
7. Termination. The Underwriter shall have the right to cancel its obligation to
purchase the Bonds if, between the date of this Agreement and the Closing, the market price or
marketability of the Bonds shall be materially adversely affected, in the sole judgment of the
Underwriter, reasonably exercised, as evidenced by a written notice to the Issuer terminating the
obligation of the Underwriter to accept delivery of and pay for the Bonds, by the occurrence of any
of the following:
(a) legislation shall be enacted by or introduced in the Congress of the United
States or recommended to the Congress for passage by the President of the United States, or
the Treasury Department of the United States or the Internal Revenue Service or any
member of the Congress or the State legislature or favorably reported for passage to either
House of the Congress by any committee of such House to which such legislation has been
referred'for consideration, a decision by a court of the United States or of the State or the
United States Tax Court shall be rendered, or an order, ruling, regulation (final, temporary
or proposed), press release, statement or other form of notice by or on behalf of the Treasury
Department of the United States, the Internal Revenue Service or other governmental agency
shall be made or proposed, the effect of any or all of which would be to impose, directly or
indirectly, federal income taxation upon revenues or other income of the general character to
be derived by the Issuer pursuant to the Ordinance, or upon interest received on obligations
of the general character of the Bonds of the interest on the Bonds as described in the Official
Statement, or other action or events shall have transpired which may have the purpose or
effect, directly or indirectly, of changing the federal income tax consequences of any of the
transactions described herein;
(b) legislation introduced in or enacted (or resolution passed) by the Congress or
an order, decree, or injunction issued by any court of competent jurisdiction, or an order,
ruling, regulation (final, temporary, or proposed), press release or other form of notice
issued or made by or on behalf of the Securities and Exchange Commission, or any other
governmental agency having jurisdiction of the subject matter, to the effect that obligations
of the general character of the Bonds, including any or all underlying arrangements, are not
exempt from registration under or other requirements of the 1933 Act, or that the Ordinance
is not exempt from qualification under or other requirements of the Trust Indenture Act, or
that the issuance, offering, or sale of obligations of the general character of the Bonds,
including any or all underlying arrangements, as described herein or in the Official
Statement or otherwise, is or would be in violation of the federal securities law as amended
and then in effect;
(c) any state blue sky or securities commission or other governmental agency or
body in any jurisdiction in which at least 10% of the principal amount of the Bonds have
been offered and sold shall have withheld registration, exemption or clearance of the
offering of the Bonds as described herein, or issued a stop order or similar ruling relating
thereto, provided that such withholding or stop order is not due to the malfeasance,
misfeasance or nonfeasance of the Underwriter;
(d) a general suspension of trading in securities on the New York Stock
Exchange,. the establishment of minimum prices on such exchange, the establishment of
13
material restrictions (not in force as of the date hereof) upon trading securities generally by
any governmental authority or any national securities exchange, a general banking
moratorium declared by federal, State of New York, or State officials authorized to do so;
(e) the New York Stock Exchange or other national securities exchange or any
governmental authority, shall impose, as to the Bonds or as to obligations of the general
character of the Bonds, any material restrictions not now in force, or increase materially
those now in force, with respect to the extension of credit by, or the charge to the net capital
requirements of, the Underwriter;
(f) any amendment to the federal or state Constitution or action by any federal or
state court, legislative body, regulatory body, or other authority materially adversely
affecting the tax status of the Issuer, its property, income, securities (or interest thereon), or
the validity or enforceability of the assessments or the levy of taxes pledged to pay principal
of and interest on the Bonds;
(g) any event occurring, or information becoming known which, in the
reasonable judgment of the Underwriter, makes untrue in any material respect any statement
or information contained in the Official Statement, or has the effect that the Official
Statement contains any untrue statement of material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(h) there shall have occurred since the date of this Agreement any materially
adverse change in the affairs or financial condition of the Issuer, except for any changes
which the Official Statement discloses are expected to occur;
(i) since the date of this Agreement the United States shall have become
engaged in hostilities which have resulted in a declaration of war or a national emergency or
there shall have occurred any other outbreak or escalation of hostilities or a national or
international calamity or crisis, financial or otherwise;
0) any material fact or event shall exist or have existed that, in the Underwriter's
reasonable judgment, requires or has required an amendment of or supplement to the
Official Statement and the Issuer has failed to amend or supplement the Official Statement
in compliance with this Agreement;
(lc) there shall have occurred any downgrading, or any published notice shall
have been given of (A) any intended or potential downgrading or (B) any review or possible
change that does not indicate a possible upgrade, in the rating accorded any of the Issuer's
obligations secured in a like manner as the Bonds (including the rating to be accorded the
Bonds), except any such notice or occurrence that is disclosed in the Official Statement;
(1) the purchase of and payment for the Bonds by the Underwriter, or the resale
of the Bonds by the Underwriter, on the terms and conditions herein provided shall be
14
prohibited by any applicable law, governmental authority, board, agency or commission and
such prohibition is not the result of the Underwriter's acts or failure to act; provided,
however, that such prohibition occurs after the date of this Agreement; and
(m) a material disruption in commercial banking or securities settlement or
clearance services shall have occurred and shall be continuing on the Closing Date.
With respect to the condition described in subparagraph (1) above, the Underwriter is not aware of
any current, pending or proposed law or government inquiry or investigation as of the date of
execution of this Agreement which would permit the Underwriter to invoke its termination rights
hereunder.
8. Expenses
(a) The Underwriter shall be under no obligation to pay, and the Issuer shall pay,
any expenses incident to the performance of the Issuer's obligations hereunder, including,
but not limited to (i) the cost of preparation and printing of the Bonds; (ii) the fees and
disbursements of Bond Counsel to the Issuer; (iii) the fees and disbursements of the
Financial Advisor to the Issuer; (iv) the fees and disbursements of any other engineers,
accountants, and other experts, consultants or advisers retained by the Issuer; (v) the fees for
bond ratings; (vi) the costs of preparing, printing and mailing the Preliminary Official
Statement and the Official Statement; (vii) the fees and expenses of the Paying
Agent/Registrar; (viii) the Attorney General's examination fee; (ix) advertising expenses
(except any advertising expenses of the Underwriter as set forth below); (x) the out-of-
pocket, miscellaneous and closing expenses, including the cost of travel, of the officers and
members of the Issuer; and (xi) any other expenses mutually agreed to by the Issuer and the
Underwriter to be reasonably considered expenses of the Issuer which are incident to the
transactions described herein.
(b) The Issuer acknowledges that it has had an opportunity, in consultation with
such advisors as it may deem appropriate, if any, to evaluate and consider the fees and
expenses being incurred as part of the issuance of the Bonds.
(c) The Underwriter shall pay (i) the cost of preparation and printing of this
Agreement, the Blue Sky Survey and Legal Investment Memorandum (if any); (ii) all
advertising expenses in connection with the public offering of the Bonds; and (iii) all other
expenses incurred by them in connection with the public offering of the Bonds, including the
fees and disbursements of counsel retained by the Underwriter.
9. Notices. Any notice or other communication to be given to the Issuer under this
Agreement may be given by delivering the same in writing at City of Allen, Texas, 305 Century
Parkway, Allen, Texas 75013-8042, Attention: City. Manager, and any notice or other
communication to be given to the Underwriter under this Agreement may be given by delivering the
same in writing to Stifel, Nicolaus & Company, Incorporated, 70 NE Loop 410, Suite 295, San
Antonio, Texas 78216, Attention: Nora Chavez.
15
10. Parties in Interest. This Agreement as heretofore specified shall constitute the entire
agreement between us and is made solely for the benefit of the Issuer and the Underwriter
(including successors or assigns of the Underwriter) and no other person shall acquire or have any
right hereunder or by virtue hereof. This Agreement may not be assigned by the Issuer. All of the
Issuer's representations, warranties and agreements contained in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigations made by or on behalf of
the Underwriter; (ii) delivery of and payment for the Bonds pursuant to this Agreement; and (iii)
any termination of this Agreement.
11. Effectiveness. This Agreement shall become effective upon the acceptance hereof by
the Issuer and shall be valid and enforceable at the time of such acceptance.
12. Choice of Law. This Agreement shall be governed by and construed in accordance
with the law of the State.
13. Severability. If any provision of this Agreement shall be held or deemed to be or
shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any
Constitution, statute, rule of public policy, or any other reason, such circumstances shall not have
the effect of rendering the provision in question invalid, inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions of this Agreement invalid,
inoperative or unenforceable to any extent whatever.
14. Business Day. For purposes of this Agreement, "business day" means any day on
which the New York Stock Exchange is open for trading.
15. Section Headings. Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings are not a part of
this Agreement and will not be used in the interpretation of any provisions of this Agreement.
16. Counterparts, This Agreement may be executed in several counterparts each of
which shall be regarded as an original (with the same effect as if the signatures thereto and hereto
were upon the same document) and all of which shall constitute one and the same document.
17. No Personal Liability. None of the members of the City Council, nor any officer,
agent or employee of the Issuer, shall be charged personally by the Underwriter with any liability,
or be held liable to the Underwriter under any term or provision of this Agreement or any other
document described herein, or because of execution or attempted execution, or because of any
breach or attempted or alleged breach of this Agreement or any other document described herein.
18. Entire Agreement. This Agreement represents the entire agreement between the
Issuer and the Underwriters with respect to the preparation of the Preliminary Official Statement
and the Official Statement, the'conduct of the offering, and the purchase and sale of the Bonds.
16
If you agree with the foregoing, please sign the enclosed counterpart of this Agreement and
return it to the Underwriter. This Agreement shall become a binding agreement between you and
the Underwriter when at least the counterpart of this letter shall have been signed by or on behalf of
each of the parties hereto.
Very truly yours,
STIFEL, NICOLAus & COMPANY,
INCORPORATED
Authorized Officer
Accepted and agreed to as of the date first set forth above, at—:— _.m. Central Time
CITY OF ALLEN, Texas
By
Name: Peter H. Vargas
Title: City Manager
CITY OF ALLEN
GENERAL OBLIGATION BONDS, SERIES 2013
Signature Page
SCHEDULEI
The dated date of the Bonds is June 1, 2013.
THE BONDS
Maturity
220,000
2015
2.00
0.40
275,000
2025
3.00
1.900
225,000
2016
2.00
0.56
285,000
2026
3.00
2.000
230,000
2017
2.00
0.72
290,000
2027
3.00
2.100
235,000
2018
2.00
0.88
300,000
2028
3.00
2.22`
240,000
2019
2.00
1.09
310,000
2029
3.00
2.350
245,000
2020
2.00
1.25
320,000
2030
3.50
2.40`
250,000
2021
2.00
1.40
330,000
2031
3.50
2.50'
255,000
2022
2.00
1.53
340,000
2032
3.50
2.600
260,000
2023
2.50
1.68
(Interest Accrues from Date of Delivery)
t`1 Yield to the first call date of August 15, 2023.
Optional Redemption of Bonds. The Issuer reserves the right, at its option, to redeem Bonds
having stated maturities on and after August 15, 2024, in whole or in part in principal amounts of
$5,000 or any integral multiple thereof, on August 15, 2023, or any date thereafter, at the par value
-thereof plus accrued interest to the date of redemption.
[Attach Official Statement]
DAL:O 102289100003:2192286v3
EXHIBIT C
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 21 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:
I. The financial statements of the City, portions of which are appended to the
Official Statement as Appendix B for the most recently concluded fiscal year.
2. The information included under Tables 1 through 6 and 8 through 14 in the
Official Statement.
Accounting Principles
The accounting principles referred to in such Section are generally those described in
Appendix B to the Official Statement, as such principles may be changed from time to time to
comply with state law or regulation.
57105303.1/11301627 C-1