2005-136
ORDINANCE NO. 2005-J3.P
ORDINANCE AUTHORIZING THE ISSUANCE, SALE, AND DELIVERY OF CITY OF
DENTON UTILITY SYSTEM REVENUE REFUNDING BONDS, SERIES 2005, AND
APPROVING AND AUTHORIZING INSTRUMENTS AND PROCEDURES RELATING
THERETO; AND PROVIDING AN EFFECTIVE DATE
THE STATE OF TEXAS
COUNTY OF DENTON
CITY OF DENTON
WHEREAS, the City of Denton, Texas, heretofore has duly issued the foIIowing revenue bonds:
City of Denton Utility System Revenue Refunding Bonds, Taxable Series 1993-B, dated June I,
1993;
City of Denton Utility System Revenue Bonds, Series 1996, dated May t, 1996;
City of Denton Utility System Revenue Refunding Bonds, Series 1996-A, dated May I, 1996;
City of Denton Utility System Revenue Bonds, Series 1998, dated March 15, 1998;
City of Denton Utility System Revenue Refunding Bonds, Series 1998A, dated July 15, 1998;
City of Denton Utility System Revenue Refunding Bonds, Series 1998B, dated August I, 1998;
City of Denton Utility System Revenue Bonds, Series 2000A, dated April t5, 2000;
City of Denton Utility System Revenue Bonds, Taxable Series 2000B, dated April t5, 2000;
City of Denton Utility System Revenue Refunding and Improvement Bonds, Series 2001, dated
April 15,2001;
City of Denton Utility System Revenue Bonds, Series 2002A, dated April 1,2002;
City of Denton Utility System Revenue Bonds, Taxable Series 2002B, dated April I, 2002;
City of Denton Utility System Revenue Refunding and Improvement Bonds, Series 2003, dated
April 1,2003; and
City of Denton Utility System Revenue Refunding Bonds, Series 2004, dated September I, 2004;
WHEREAS, the City Council of the City of Denton deems it necessary and advisable to refund the
City's outstanding revenue bonds described in Schedule I hereto (the "Refunded Bonds"); and
WHEREAS, the City Council of the City deems it necessary and advisable to authorize, issue, and
deliver the additional Utility System Revenue Bonds hereinafter described to refund the Refunded Bonds;
and
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WHEREAS, the Series 2005 Bonds hereinafter authorized and described arc to be issued. sold and
delivered pursuant to Chapters 1207, Texas Government Code, the City's Home Rule Charter. and other
applicable laws, NOW, THEREFORE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
Section I. AMOUNT AND PURPOSE OFTHE BONDS The bond or bonds of the City of Denton,
Texas (the "Issuer") are hereby authorized to be issued and delivered in the aggregate principal amount of
$53,845,000, for the purpose of (a) refunding the Refunded Bonds in order to lower the overall debt service
requirements of the City's Combined Waterworks, Sewer and Electric Light and Power System (the "System")
and (b) paying costs of issuance associated with the sale of such bonds, and such bonds shall be designated
"City of Denton Utility System Revenue Refunding Bonds, Series 2005" (the "Bonds").
Section 2. DESCRIPTION OF THE BONDS. (a) With respect to the Series 2005 Bonds, initially
there shall be issued, sold, and delivered hereunder a single fully registered bond, without interest coupons,
payable in installments of principal (the "Initial Series 2005 Bond"), but the Initial Series 2005 Bond may
be assigned and transferred andlor converted into and exchanged for a like aggregate principal amount of
fully registered bonds, without interest coupons, having serial maturities, and in the denomination or
denominations of$5,000 or any integral multiple of$5,000, all in the manner hereinafter provided. The term
"Series 2005 Bonds" as used in this Ordinance shall mean and include collectively the Initial Series 2005
Bond and all substitute bonds exchanged therefor, as well as all other substitute bonds and replacement bonds
issued pursuant hereto, and the term "Series 2005 Bond" shall mean any of the Series 2005 Bonds.
(b) The term "Initial Bond" as used in this Ordinance shall mean and include collectively the
Initial Series 2005 Bond, the term "Bonds" as used in this Ordinance shall mean and include collectively the
Initial Bond and all substitute bonds exchanged therefor, as well as all other substitute bonds and replacement
bonds issued pursuant hereto, and the term "Bond" shall mean any of the Bonds.
Section 3. INITIAL DATE, DENOMINATION, NUMBER, MATURITIES, tNITIAL
REGISTERED OWNER, AND CHARACTERISTICS OF THE INITIAL BOND.
(a) The Initial Series 2005 Bond is hereby authorized to be issued, sold, and delivered hereunder
as a single fully registered Bond, without interest coupons, dated May 15,2005, in the denomination and
aggregate principal amountof$53,845,00O numbered R-t, payable in annual installments of principal to the
initial registered owner thereof, to-wit:
or to the registered assignee or assignees of said Bond or any portion or portions thereof (in each case, the
"registered owner"), with the annual installments of principal of the Initial Series 2005 Bond to be payable
on the dates, respectively, and in the principal amounts, respectively, stated in the FORM OF INITIAL
BOND set forth in this Ordinance.
RBC DAIN RAUSCHER INc., as representative
(b) The Initial Series 2005 Bond (i) may and shall be prepaid or redeemed prior to the respective
scheduled due dates of installments of principal thereof, (ii) may be assigned and transferred, (iii) may be
converted and exchanged for other Bonds, (iv) shall have the characteristics, and (v) shall be signed and
sealed, and the principal of and interest on the Initial Series 2005 Bond shall be payable, all as provided, and
in the manner required or indicated, in the FORM OF INITIAL SERIES 2005 BOND set forth in this
Ordinance.
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2
Section 4. INTEREST. The unpaid principal balance of the Initial Series 2005 Bond shall bear
interest from the date of each Initial Series 2005 Bond to the respective scheduled due dates, or to the
respective dates of prepayment or redemption, of the installments of principal of the Initial Series 2005 Bond,
and said interest shall be payable, all in the manner provided and at the rates and on the dates stated in the
FORM OF INITIAL SERIES 2005 BOND set forth in this Ordinance.
Section 5. FORM OF INITIAL SERIES 2005 BOND. The fonn of the Initial Series 2005 Bond,
including the fonn of Registration Certificate of the Comptroller of Public Accounts of the State of Texas to
be endorsed on the Initial Series 2005 Bond, shall be substantially as follows:
FORM OF INITIAL SERIES 2005 BOND
$53,845,000
NO.R-l
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTY OF DENTON
CITY OF DENTON UTILITY SYSTEM REVENUE
REFUNDING BOND
SERIES 2005
THE CITY OF DENTON, in Denton County, Texas (the "Issuer"), being a political subdivision of
the State of Texas, hereby promises to pay to
or to the registered assignee or assignees of this Bond or any portion or portions hereof (in each case. the
"registered owner") the aggregate principal amount of
$53,845,000
(FIFTY THREE MILLION EIGHT HUNDRED FORTY FIVE THOUSAND DOLLARS)
in annual installments of principal due and payable on December I in each of the years, and in the respective
principal amounts, as set forth in the following schedule, and to pay interest, from the date of this Bond
hereinafter stated, on the balance of each such installment of principal, respectively, from time to time
remaining unpaid, at the rates as follows:
PRINCIPAL INTEREST PRINCIPAL INTEREST
YEAR AMOUNT RATE(%ì YEAR AMOUNT RATE(%ì
2005 $ 55,000 3.000 20t4 $5,850,000 5.000
2006 tOO,OOO 3,250 20t5 5,705,000 5000
2007 105,000 3.250 2016 5,980,000 5.000
2008 t05,000 3.250 2017 6,270,000 5.000
2009 110,000 3.500 2018 6,240,000 5.000
2010 t 15,000 3.500 20t9 6,575,000 5000
20tl 1.805,000 5.000 2020 2.nO.OOO 5.000
2012 1.880,000 5.000 2021 2,875,000 5000
20t3 5,580,000 5.000 2022 t,775,000 4.250
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Interest shall first be due and payable on December t, 2005, and semiannually on each June 1 and
December I thereafter while this Bond or any portion hereof is outstanding and unpaid. Said interest shall
be calculated on the basis of a 360-day year composed of tWelve 30-day months.
THE INSTALLMENTS OF PRINCIPAL OF AND THE INTEREST ON this Bond are payable in
lawful money of the United States of America, without exchange or collection charges. The installments of
principal and the interest on this Bond are payable to the registered owner hereof through the services ofÙ1e
Dallas, Texas corporate trust office of JPMORGAN CHASE BANK, NATIONAL ASSOCIATION. which
is the "Paying Agent/Registrar" for this Bond. Payment of all principal of and interest on Ù1is Bond shall be
made by the Paying Agent/Registrar to the registered owner hereof on each principal and/or interest payment
date by check, dated as of such date, drawn by the Paying AgentlRegistrar on, and payable solely from, funds
of the Issuer required by the ordinance authorizing the issuance of this Bond (the "Bond Ordinance") to be
on deposit wiÙ1 the Paying Agent/Registrar for such purpose as hereinafter provided; and sueh check shall
be sent by the Paying Agent/Registrar by United States mail, first-class postage prepaid, on each such
principal and/or interest payment date, to the registered owner hereof, at Ù1e address of the registered owner,
as it appeared on the 15Ù1 day of the month next preceding each such date (the "Record Date") on the
Registration Books kept by the Paying AgentlRegistrar, as hereinafter described. The Issuer covenants wiÙ1
Ù1e registered owner of this Bond that on or before each principal and/or interest payment date for this Bond
it will make available to the Paying Agent/Registrar, from Ù1e "Interest and Sinking Fund" maintained
pursuant to the Bond Ordinance, the amounts required to provide for the payment, in immediately available
funds, of all principal of and interest on this Bond, when due. The provisions of Section 35(b) of the Bond
Ordinance are hereby incorporated by reference.
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 Ù1e
Paying Agent/Registrar, if and when funds for the payment of such interest have been received from the
Issuer Notice of the Special Record Date and of the scheduled payment date of the past due interest ("Special
Payment Date", which shall be fifteen (t 5) 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 Ù1e
address of each Holder of a Bond appearing on the registration books of the Paying Agent/Registrar at the
close of business on Ù1e 15th business day next preceding the date of mailing of such notice.
IF THE DATE for the payment of the principal of or interest on this Bond shall be a Saturday,
Sunday, a legal holiday, or a day on which banking institutions in Ù1e City where the Paying Agent/Registrar
is located are auÙ1orized 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 on which banking institutions are
authorized to close; and payment on such date shall have the same force and effect as if made on Ù1e original
date payment was due.
THIS BOND has been authorized in accordance with Ù1e Constitution and laws of the State of Texas
in Ù1e principal amount of$53,845.000 for the purpose of (a) refunding the City's outstanding revenue bonds
described in Schedule I to the Bond Ordinance (the "Refunded Bonds") in order to lower the overall debt
service requirements of the City's Combined Waterworks, Sewer and Electric Light and Power System (the
"System") and (b) paying costs of issuance associated wiÙ1 Ù1e sale of Ù1is Bond.
ON DECEMBER 1, 20t5, or on any date whatsoever thereafter, Ù1e unpaid installments of principal
of this Bond may be prepaid or redeemed prior to their scheduled due dates, at the option ofÙ1e Issuer, wiÙ1
funds derived from any available source, as a whole, or in part, and, if in part, the particular portion of this
Bond to be prepaid or redeemed shall be selected and designated by the Issuer (provided that a portion ofÙ1is
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Bond may be redeemed only in an integral multiple of$5,000), at the prepayment or redemption price of the
par or principal amount thereof, plus accrued interest to the date fixed for prepayment or redemption.
AT LEAST 30 days prior to the date fixed for any such prepayment or redemption a written notice
of such prepayment or redemption shall be mailed by the Paying AgentlRegistrar to the registered owner
hereof By the date fixed for any such prepayment or redemption due provision shall be made by the Issuer
with the Paying Agent/Registrar for the payment of the required prepayment or redemption price for this
Bond or the portion hereof which is to be so prepaid or redeemed, plus accrued interest thereon to the date
fixed for prepayment or redemption. If such written notice of prepayment or redemption is given, and if due
provision for such payment is made, all as provided above, this Bond, or the portion thereof which is to be
so prepaid or redeemed, thereby automatically shall be treated as prepaid or redeemed prior to its scheduled
due date, and shall not bear interest after the date [¡xed for its prepayment or redemption, and shall not be
regarded as being outstanding except for the right of the registered owner to receive the prepayment or
redemption price plus accrued interest to the date [¡xed for prepayment or redemption from the Paying
Agent/Registrar out of the funds provided for such payment. The Paying Agent/Registrar shall record in the
Registration Books all such prepayments or redemptions of principal of this Bond or any portion hereof.
THIS BOND, to the extent of the unpaid or unredeemed principal balance hereof, or any unpaid and
unredeemed portion hereof in any integral multiple of$5,000, may be assigned by the initial registered owner
hereof and shall be transferred only in the Registration Books of the Issuer kept by the Paying
Agent/Registrar acting in the capacity of registrar for the Bonds, upon the teffi1S and conditions set forth in
the Bond Ordinance. Among other requirements for such transfer, this Bond must be presented and
surrendered to the Paying Agent/Registrar for cancellation, together with proper instruments of assignment,
in fOnTI and with guarantee of signatures satisfactory to the Paying AgentIRegistrar, evidencing assignment
by the initial registered owner of this Bond, or any portion or portions hereof in any integral multiple of
$5,000. to the assignee or assignees in whose name or names this Bond or any such portion or portions hereof
is or are to be transferred and registered. Any instrument or instruments of assignment satisfactory to the
Paying Agent/Registrar may be used to evidence the assignment of this Bond or any such portion or portions
hereof by the initial registered owner hereof. A new bond or bonds payable to such assignee or assignees
(which then will be the new registered owner or owners of such new Bond or Bonds) or to the initial
registered owner as to any portion of this Bond which is not being assigned and transferred by the initial
registered owner, shall be delivered by the Paying AgentlRegistrar in conversion of and exchange for this
Bond or any portion or portions hereof, but solely in the fonTI and manner as provided in the next paragraph
hereoffor the conversion and exchange of this Bond or any portion hereof. The registered owner of this Bond
shall be deemed and treated by the Issuer and the Paying Agent/Registrar as the absolute owner hereof for
all purposes, including payment and discharge of liability upon this Bond to the extent of such payment, and
the Issuer and the Paying Agent/Registrar shall not be affected by any notice to the contrary.
AS PROVIDED above and in the Bond Ordinance, this Bond, to the extent of the unpaid or
unredeemed principal balance hereof, may be converted into and exchanged for a like aggregate principal
amount of fully registered bonds, without interest coupons, payable to the assignee or assignees duly
designated in writing by the initial registered owner hereof, or to the initial registered owner as to any portion
of this Bond which is not being assigned and transferred by the initial registered owner, in any denomination
or denominations in any integral multiple of$5,000 (subject to the requirement hereinafter stated that each
substitute bond issued in exchange for any portion of this Bond shall have a single stated principal maturity
date), upon surrender of this Bond to the Paying Agent/Registrar for cancellation, all in accordance with the
fOnTI and procedures set forth in the Bond Ordinance. If this Bond or any portion hereof is assigned and
transferred or converted each bond issued in exchange for any portion hereof shall have a single stated
principal maturity date corresponding to the due date of the installment of principal of this Bond or portion
hereof for which the substitute bond is being exchanged, and shall bear interest at the rate applicable to and
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borne by such installment of principal or portion thereof Such bonds, respectively, shall be subject to
redemption prior to maturity on the same dates and for the same prices as the corresponding installment of
principat of this Bond or portion hereof for which they are being exchanged. No such bond shall be payable
in installments, but shall have only one stated principal maturity date. AS PROVIDED IN THE BOND
ORDINANCE, THIS BOND IN ITS PRESENT FORM MAY BE ASSIGNED AND TRANSFERRED OR
CONVERTED ONCE ONLY, and to one or more assignees, but the bonds issued and delivered in exchange
for this Bond or any portion hereof may be assigned and transferred, and converted, subsequently, as provided
in the Bond Ordinance. The Issuer shall pay the Paying Agent/Registrar's standard or customary fees and
charges for transferring, converting, and exchanging this Bond or any portion thereof, but the one requesting
such transfer, conversion. and exchange shall pay any taxes or governmental charges required to be paid with
respect thereto. The Paying Agent/Registrar shall not be required to make any such assigIU11ent, conversion,
or exchange (i) during the period commencing with the close of business on any Record Date and ending with
the opening of business on the next following principal or interest payment date, or, (ii) with respect to any
Bond or portion thereof called for prepayment or redemption prior to maturity, within 45 days prior to its
prepayment or redemption date.
IN THE EVENT any Paying AgentlRegistrar for this Bond is changed by the Issuer, resigns, or
otherwise ceases to act as such, the Issuer has covenanted in the Bond Ordinance that it promptly will appoint
a competent and legally qualified substitute therefor, and promptly will cause written notice thereof to be
mailed to the registered owner of this Bond.
IT IS HEREBY certified, recited, and covenanted that this Bond has been duly and validly
authorized, issued, sold, and delivered; that all acts, conditions, and things required or proper to be performed,
exist, and be done precedent to or in the authorization, issuance, and delivery of this Bond have been
perfonTIed, existed, and been done in accordance with law; that this Bond is a special obligation of the Issuer,
secured by and payable, together with other bonds, from a first lien on and pledge ofthe "Pledged Revenues",
which include initially the "Net Revenues of the System" as such tenTIS are defined in the Bond Ordinance,
with the System consisting of the City's entire combined waterworks, sewer, and electric light and power
system.
THE ISSUER has reserved the right, subject to the restrictions stated in the Bond Ordinance, to issue
Additional Bonds payable from and secured by a first lien on and pledge of the "Pledged Revenues" on a
parity with this Bond.
THE ISSUER also has reserved the right, subject to the restrictions stated in the Bond Ordinance, to
amend the Bond Ordinance with the approval of the holders or owners of fifty-one percent in principal
amount of all outstanding bonds which are secured by and payable from a first lien on and pledge of the
Pledged Revenues.
THE REGISTERED OWNER hereof shall never have the right to demand payment of this Bond or
the interest hereon out of any funds raised or to be raised by taxation or from any souree whatsoever other
than specified in the Bond Ordinance.
BY BECOMING the registered owner of this Bond, the registered owner thereby acknowledges all
of the tenTIS and provisions of the Bond Ordinance, agrees to be bound by such terms and provisions,
acknowledges that the Bond Ordinance is duly recorded and available for inspection in the official minutes
and records of the governing body of the Issuer, and agrees that the terms and provisions of this Bond and
the Bond Ordinanee constitute a contract betWeen the registered owner hereof and the Issuer.
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IN WITNESS WHEREOF, the Issuer has caused this Bond to be signed with the manual or facsimile
signature of the Mayor of the Issuer and countersigned and attested with the manual signature or facsimile
of the City Secretary of the Issuer, has caused the official seal of the Issuer to be duly impressed on this Bond,
and has caused this Bond to be dated May t 5, 2005.
CITY OF DENTON, TEXAS
ATTEST:
By:
Euline Brock
Mayor, City of Denton, Texas
By:
Jennifer Walters
City Secretary, City of Denton, Texas
(CITY SEAL)
(BOND INSURANCE LEGEND, IF ANY)
FORM OF REGISTRATION CERTIFICATE OF THE
COMPTROLLER 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 that this Bond has been registered by the Comptroller of Public
Accounts of the State of Texas.
COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO.
Witness my signature and seal this
Comptroller of Public Accounts
of the State of Texas
(COMPTROLLER'S SEAL)
Section 6. ADDITIONAL CHARACTERISTICS OF THE BONDS Registration and Transfer. (a)
The Issuer shall keep or cause to be kept at the Dallas, Texas, corporate trust ofÍ1ce of JPMORGAN CHASE
BANK, NA TlONAL ASSOCIATION (the "Paying Agent/Registrar") books or records of the registration
and transfer of the Bonds (the "Registration Books"), and the Issuer hereby appoints the Paying
Agent/Registrar as its registrar and transfer agent to keep such books or records and make such transfers and
registrations under such reasonable regulations as the Issuer and Paying Agent/Registrar may prescribe; and
the Paying Agent/Registrar shall make such transfers and registrations as herein provided. The Paying
AgentlRegistrar shall obtain and record in the Registration Books the address of the registered owner of each
Bond to which payments with respect to the Bonds shall be mailed, as herein provided; but it shall be the duty
of each registered owner to notify the Paying Agent/Registrar in writing of the address to which payments
shall be mailed, and such interest payments shall not be mailed unless such notice has been given. The Issuer
shall have the right to inspect the Registration Books during regular business hours of the Paying
Agent/Registrar, but otherwise the Paying AgentlRegistrar shatt keep the Registration Books confidential and,
unless otherwise required by law, shall no! penn it their inspection by any other entity. Registration of each
Bond may be transferred in the Registration Books only upon presentation and surrender of such Bond to the
Paying Agent/Registrar for transfer of registration and cancellation, together with proper written instruments
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of assignment, in fonn and with guarantee of signatures satisfactory to the Paying Agent/Registrar,
evidencing (i) the assignment of the Bond, or any portion thereof in any integral multiple of $5,000, to the
assignee or assignees thereof, and (ii) the right of such assignee or assignees to have the Bond or any such
portion thereof registered in the name of such assignee or assignees. Upon the assignment and transfer of
any Bond or any portion thereof, a new substitute Bond or Bonds shall be issued in conversion and exchange
therefor in the manner herein provided. The Initial Bond, to the extent of the unpaid or unredeemed principal
balance thereof, may be assigned and transferred by the initial registered owner thereof once only, and to one
or more assignees designated in writing by the initial registered owner thereof. All Bonds issued and
delivered in conversion of and exchange for the Initial Bond shall be in any denomination or denominations
of any integral multiple of$5,000 (subject to the requirement hereinafter stated that each substitute Bond shall
have a single stated principal maturity date), shall be in the fonn prescribed in the FORM OF SUBSTITUTE
SERIES 20054 BOND set forth in this Ordinance, and shall have the characteristics, and may be assigned,
transferred, and converted as hereinafter provided. If the Initial Bond or any portion thereof is assigned and
transferred or converted the Initial Bond must be surrendered to the Paying AgentlRegistrar for cancellation,
and each Bond issued in exchange for any portion of the Initial Bond shall have a single stated principal
maturity date, and shall not be payable in installments; and each such Bond shall have a principal maturity
date corresponding to the due date of the installment of principal or ponion thereof for which the substitute
Bond is being exchanged; each such Bond shall bear interest at the single rate applicable to and borne by such
installment of principal or portion thereof for which it is being exchanged. If only a portion of the Initial
Bond is assigned and transferred, there shall be delivered to and registered in the name of the initial registered
owner substitute Bonds in exchange for the unassigned balance of the Initial Bond in the same manner as if
the initial registered owner were the assignee thereof. If any Bond or portion thereof other than the Initial
Bond is assigned and transferred or converted each Bond issued in exchange therefor shall have the same
principal maturity date and bear interest at the same rate as the Bond for which it is exchanged. A form of
assignment shall be printed or endorsed on each Bond, excepting the Initial Bond, which shall be executed
by the registered owner or its duly authorized attorney or representative to evidence an assignment thereof.
Upon surrender of any Bonds or any portion or portions thereof for transfer of registration, an authorized
representative of the Paying Agent/Registrar shall make such transfer in the Registration Books, and shall
deliver a new fully registered substitute Bond or Bonds, having the characteristics herein described, payable
to such assignee or assignees (which then will be the registered owner or owners of such new Bond or
Bonds), or to the previous registered owner in case only a portion ofa Bond is being assigned and transferred,
all in conversion of and exchange for said assigned Bond or Bonds or any portion or portions thereof, in the
same fonn and manner, and with the same effect, as provided in Section 6(d), below, for the conversion and
exchange of Bonds by any registered owner of a Bond. The Issuer shall pay the Paying Agent/Registrar's
standard or customary fees and charges for making such transfer and delivery of a substitute Bond or Bonds,
but the one requesting such transfer shall pay any taxes or other governmental charges required to be paid
with respect thereto. The Paying Agent/Registrar shall not be required to make transfers of registration of
any Bond or any portion thereof (i) during the period commencing with the close of business on any Record
Date and ending with the opening of business on the next following principal or interest payment date, or,
(ii) with respect to any Bond or any portion thereof called for redemption prior to maturity, within 45 days
prior to its redemption date.
(b) Ownershio of Bonds. The entity in whose name any Bond shall be registered in the
Registration Books at any time shall be deemed and treated as the absolute owner thereof for all purposes of
this Ordinance, whether or not such Bond shall be overdue, and the Issuer and the Paying AgentlRegistrar
shall not be affected by any notice to the contrary; and payment of, or on account of, the principal of,
premium, if any, and interest on any such Bond shall be made only to such registered owner. All such
payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of
the sum or sums so paid.
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(c) Pavment of Bonds and Interest. The Issuer hereby further appoints the Paying
AgentIRegistrar to act as the paying agent for paying the principal of and interest on the Bonds, and to act
as its agent to convert and exchange or replace Bonds, all as provided in this Ordinance. The Paying
Agent/Registrar shall keep proper records of all payments made by the Issuer and the Paying AgentIRegistrar
with respect to the Bonds, and of all conversions and exchanges of Bonds, and all replacements of Bonds,
as provided in this Ordinance. However, in the event of a nonpayment of interest on a scheduled payment
date, and for thirty (30) days thereafter, anew record datefor 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 Issuer. Notice of the Special Record Date and of the scheduled payment date of the
past due interest ("Special Payment Date", which shall be fifteen (15) days after the Special Record Date)
shall be sent at \east five (5) business days prior to the Special Record Date by United States mail, first class
postage prepaid, to the address of each Holder of a Bond appearing on the registration books of the Paying
Agent/Registrar at the close of business on the 15th business day next preceding the date of mailing of such
notice.
(d) Conversion and Exchange or Relllacement" Authentication. Each Bond issued and delivered
pursuant to this Ordinance, to the extent of the unpaid or unredeemed principal balance or principal amount
thereof, may, upon surrender of such Bond at the principal corporate trust office of the Paying
Agent/Registrar, together with a written request therefor duly executed by the registered owner or the
assignee or assignees thereof, or its or their duly authorized attorneys or representatives, with guarantee of
signatures satisfactory to the Paying Agent/Registrar, may, at the option of the registered owner or such
assignee or assignees, as appropriate, be converted into and exchanged for fully registered bonds, without
interest coupons, in the fonu prescribed in the FORM OF SUBSTITUTE SERIES 2005 BOND set forth in
this Ordinance, in the denomination of$5,000, or any integral multiple of$5,000 (subject to the requirement
hereinafter stated that each substitute Bond shall have a single stated maturity date), as requested in writing
by such registered owner or such assignee or assignees, in an aggregate principal amount equal to the unpaid
or umedeemed principal balance or principal amount of any Bond or Bonds so surrendered, and payable to
the appropriate registered owner, assignee, or assignees, as the case may be. If the Initial Bond is assigned
and transferred or converted each substitute Bond issued in exchange for any portion of the Initial Bond shall
have a single stated principal maturity date, and shall not be payable in installments; each such Bond shall
have a principal maturity date corresponding to the due date of the installment of principal or portion thereof
for which the substitute Bond is being exchanged; and each such Bond shall bear interest at the single rate
applicable to and borne by such installment of principal or portion thereof for which it is being exchanged.
If a portion of any Bond (other than the Initial Bond) shall be redeemed prior to its scheduled maturity as
provided herein, a substitute Bond or Bonds having the same maturity date, bearing interest at the same rate,
in the denomination or denominations of any integral multiple of $5,000 at the request of the registered
owner, and in aggregate principal amount equat to the unredeemed portion thereof, will be issued to the
registered owner upon surrender thereoffor cancellation. Ifany Bond or portion thereof (other than the Initial
Bond) is assigned and transferred or converted, each Bond issued in exchange therefor shall have the same
principal maturity date and bear interest at the same rate as the Bond for which it is being exchanged. Each
substitute Bond shall bear a letter and/or number to distinguish it from each other Bond. The Paying
Agent/Registrar shall convert and exchange or replace Bonds as provided herein, and each fully registered
bond delivered in conversion of and exchange for or replacement of any Bond or portion thereof as penuitted
or required by any provision of this Ordinance shall constitute one of the Bonds for all purposes of this
Ordinance. and may again be converted and exchanged or replaced. It is specifically provided that any Bond
authenticated in conversion of and exchange for or replacement of another Bond on or prior to the first
scheduled Record Date for the Initial Bond shall bear interest from the date of the Initial Bond, but each
substitute Bond so authenticated after such first scheduled Record Date shall bear interest from the interest
payment date next preceding the date on which such substitute Bond was so authenticated, unless such Bond
is authenticated after any Record Date but on or before the next following intercst payment date, in which
BRIZ: 0705.06715-23-2005-Refunding-O,dinance
9
case it shall bear interest from such next following interest payment date; provided, however, that if at the
time of delivery of any substitute Bond the interest on the Bond for which it is being exchanged is due but
has not been paid, then such Bond shall bear interest from the date to which such interest has been paid in
full. The Initial Bond issued and delivered pursuant to this Ordinance is not required to be, and shall not be,
authenticated by the Paying Agent/Registrar, but on each substitute Bond issued in conversion of and
exchange for or replacement of any Bond or Bonds issued Wlder this Ordinance there shall be printed a
certificate, in the form substantially as follows:
"PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE
It is hereby certified that this Bond has been issued Wlder the provisions of the Bond Ordinance
described in this Bond; and that this Bond has been issued in conversion of and exchange for or replacement
of a bond, bonds, or a portion of a bond or bonds of an issue which originally was approved by the Attorney
General of the State of Texas and registered by the Comptroller of Public Accounts of the State of Texas,
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, Paying Agent/Registrar
Dated
By
Authorized Representative"
An authorized representative of the Paying Agent/Registrar shall, before the delivery of any such Bond, date
and manually sign the above Certificate, and no such Bond shall be deemed to be issued or outstanding unless
such Certificate is so executed. The Paying Agent/Registrar promptly shall cancel all Bonds surrendered for
conversion and exchange or replacement No additional ordinances, orders, or resolutions need be passed
or adopted by the governing body of the Issuer or any other body or person so as to accomplish the foregoing
conversion and exchange or replacement of any Bond or portion thereof, and the Paying Agent/Registrar shall
provide for the printing, execution, and delivery of the substitute Bonds in the manner prescribed herein.
Pursuant to Chapter 1201, Texas Government Code, the duty of conversion and exchange or replacement of
Bonds as aforesaid is hereby imposed upon the Paying Agent/Registrar, and, upon the execution of the above
Paying Agent/Registrar's Authentication Certificate, the convened and exchanged or replaced Bond shall be
valid, incontestable, and enforceabte in the same manner and with the same effect as the Initial Bond which
originally was issued pursuant to this Ordinance, approved by the Attorney General, and registered by the
Comptroller of Public Accounts. The Issuer shall pay the Paying AgentIRegistrar's standard or customary
fees and charges for transferring, convening, and exchanging any Bond or any portion thereof, but the one
requesting any such transfer, conversion, and exchange shall pay any taxes or governmental charges required
to be paid with respect thereto as a condition precedent to the exercise of such privilege of conversion and
exchange. The Paying Agent/Registrar shall not be required to make any such conversion and exchange or
replacement of Bonds or any portion thereof (i) during the period commencing with the close of business on
any Record Date and ending with the opening of business on the next following principal or interest payment
date, or, (ii) with respect to any Bond or ponion thereof called for redemption prior to maturity, within 45
days prior to its redemption date.
(e) In General. All Bonds issued in conversion and exchange or replacement of any other Bond
or portion thereof, (i) shall be issued in fully registered form, without interest coupons, with the principal of
and interest on such Bonds to be payable only to the registered owners thereof, (ii) may and shall be redeemed
prior to their scheduled maturities, (iii) may be transferred and assigned, (iv) may be converted and
exchanged for other Bonds, (v) shall have the characteristics, (vi) shall be signed and sealed, and (vii) the
BRIZ: 070S.067\S-23-200S-Rofunding-Ordinance
10
principal of and interest on the Bonds shall be payable, all as provided, and in the manner required or
indicated, in the FORM OF SUBSTITUTE SERIES 2005 BOND set forth in this Ordinance.
(f) Pavment of Fees and Charges. The Issuer hereby covenants with the registered owners of
the Bonds that it will (i) pay the standard or customary fees and charges of the Paying Agent/Registrar for
its services with respect to the payment of the principal of and interest on the Bonds, when due, and (ii) pay
the fees and charges of the Paying AgentlRegistrar for services with respect to the transfer ofregistration of
Bonds, and with respect to the conversion and exchange of Bonds solely to the extent above provided in this
Ordinance.
(g) Substitute Paving AgentlRegistrar. The Issuer covenants with the registered owners of the
Bonds that at all times while the Bonds are outstanding the Issuer will provide a competent and legally
qualified bank, trust company, financial institution, or other agency to act as and perform the services of
Paying Agent/Registrar for the Bonds under this Ordinance, and that the Paying Agent/Registrar will be one
entity. The Issuer reserves the right to, and may, at its option, change the Paying Agent/Registrar upon not
less than 120 days written notice to the Paying Agent/Registrar, to be effective not later than 60 days prior
to the next principal or interest payment date after such notice. In the event that the entity at any time acting
as Paying Agent/Registrar (or its successor by merger, acquisition, or other method) should resign or
otherwise cease to act as such, the Issuer covenants that it will promptly appoint a competent and legally
qualified bank, trust company, financial institution, or other agency to act as Paying Agent/Registrar under
this Ordinance. Upon any change in the Paying AgentlRegistrar, the previous Paying AgentlRegistrar shall
promptly transfer and deliver the Registration Books (or a copy thereof), along with all other pertinent books
and records relating to the Bonds, to the new Paying Agent/Registrar designated and appointed by the Issuer.
Upon any change in the Paying Agent/Registrar, the Issuer promptly will cause a written notice thereof to
be sent by the new Paying Agent/Registrar to each registered owner of the Bonds, by United States mail,
first-class postage prepaid, which notice also shall give the address of the new Paying AgentlRegistrar. By
accepting the position and performing as such, each Paying AgentlRegistrar shall be deemed to have agreed
to the provisions of this Ordinance, and a certified copy of this Ordinance shall be delivered to each Paying
Agent/Registrar.
Section 7. FORM OF SUBSTITUTE SERIES 2005 BOND The form of all Series 2005 Bonds
issued in conversion and exchange or replacement of any other Series 2005 Bond or portion thereof, including
the form of Paying Agent/Registrar's Certificate to be printed on each of such Series 2005 Bonds, and the
Form of Assignment to be printed on each of the Series 2005 Bonds, shall be, respectively, substantially as
follows, with such appropriate variations, omissions, or insertions as are permitted or required by this
Ordinance.
FORM OF SUBSTITUTE SERIES 2005 BOND
NO.-
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTY OF DENTON
CITY OF DENTON UTILITY SYSTEM REVENUE
REFUNDING BOND
SERIES 2005
PRINCIPAL AMOUNT
$
INTEREST
~
MATURITY
DATE
ORIGINAL DATE
OF ISSUE
CUSIP NO.
BRIZ:: 0705.067\5-23-2005-Refunding-Ordinance
tl
_°/0
MAY 15, 2005
ON THE MATURITY DATE specified above the C1TY OF DENTON, in Denton County, Texas
(the "lssuer"), being a political subdivision of the State of Texas, hereby promises to pay to
, or to the registered assignee
hereof (either being hereinafter called the "registered owner") the principal amount of
and to pay interest thereon from May t5, 2005, to the maturity date specified above, or the date ofrcdemption
prior to maturity, at the intcrest rate per annum specified above; with interest being first due and payable on
December 1, 2005, and semiannually on each June 1 and December 1 thereafter, except that if the date of
authentication of this Bond is later than the first Record Date (hereinafter defined), such principal amount
shall bear interest from the interest payment date next preceding the date of authentication, unless such date
of authentication is after any Record Date (hereinafter defined) but on or before the next following interest
payment date, in which case such principal amount shall bear interest from such next following interest
payment date. Said interest shall be calculated on the basis of a 360-day year composed of twelve 30-day
months.
THE PRINCIPAL OF AND INTEREST ON this Bond are payable in lawful money of the United
States of America, without exchange or collection charges. The principal of this Bond shall be paid to the
registered owner hcreofupon presentation and surrender of this Bond at maturity or upon the date fixed for
its redemption prior to maturity, at the Dallas, Texas, corporate trust office of JPMORGAN CHASE BANK,
NA TlONAL ASSOC1A TION, which is the "Paying Agent/Registrar" for this Bond. The payment of interest
on this Bond shall be made by the Paying Agent/Registrar to the registered owner hereof on each interest
payment date by check, dated as of such interest payment date, drawn by the Paying Agent/Registrar on, and
payable solely from, funds of the Issuer required by the ordinance authorizing the issuance of the Bonds (the
"Bond Ordinance") to be on deposit with the Paying Agent/Registrar for such purpose as hereinafter provided;
and such check shall be sent by the Paying Agent/Registrar by United States mail, first-class postage prepaid,
on each such interest payment date, to the registered owner hereof, at the address of the registered owner, as
it appeared at the close of business on the 15th day of the month next preceding each such date (the "Record
Date") on the Registration Books kept by the Paying Agent/Registrar, as hereinafter described. However,
the payment of such interest may be made by any other method acceptable to the Paying Agent/Registrar and
requested by, and at the risk and expense of, the registered owner hereof. Any accrued interest due upon the
redemption of this Bond prior to maturity as provided herein shall be paid to the registered owner at the
principal corporate trust offke of the Paying Agent/Registrar upon presentation and surrender of this Bond
for redemption and payment at the principal corporate trust omce of the Paying Agent/Registrar. The Issuer
covenants with the registered owner of this Bond that on or before each principal payment date, interest
payment date, and accrued interest payment date for this Bond it will make available to the Paying
Agent/Registrar, from the "Interest and Sinking Fund" created by the Bond Ordinance, the amounts required
to provide for the payment, in immediately available funds, of all principal of and interest on the Bonds, when
due. The provisions of Section 35(h) of the Bond Ordinance are hereby incorporated by reference.
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 Agent/Registrar. if and when funds for the payment of such interest have been received from the
Issuer. Notice of the Special Record Date and of the scheduled payment date ofthe past due interest ("Special
Payment Date", 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
BRIZ, 0705.067\5-23-2005-Refunding.Ordinance
12
address of each Holder of a Bond appearing on the registration books of the Paying Agent/Registrar at the
close of business on the 15th business day next preceding the date of mailing of such notice.
IF THE DATE for the payment of the principal of or interest on this Bond shall be a Saturday,
Sunday, a legal holiday, or a day on which banking institutions in the City where the Paying AgentlRegistrar
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 on which 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.
THIS BOND is one of a series of Bonds initially dated May 15,2005, authorized in accordance with
the Constitution and laws of the State of Texas in the principal amount of$53,845,000 for the purpose of (a)
refunding the City's outstanding revenue bonds described in Sehedule I to the Bond Ordinance (the "Refunded
Bonds") in order to lower the overall debt service requirements of the City's Combined Waterworks, Sewer
and Electric Light and Power System (the "System") and (b) paying costs of issuance associated with the sale
of the Bonds.
ON DECEMBER 1, 2015, or on any date whatsoever thereafter, the Bonds of this Series may be
redeemed prior to their scheduled maturities, at the option of the Issuer, with funds derived from any available
and lawful source, as a whole, or in part, and, if in part, the particular Bonds, or portions thereof, to be
redeemed shall be selected and designated by the Issuer (provided that a portion of a Bond may be redeemed
only in an integral multiple of $5,000), at the redemption price of the par or principal amount thereof, plus
accrued interest to the date fixed for redemption.
AT LEAST 30 day s prior to the date fixed for any redemption of Bonds or portions thereof prior to
maturity a written notice of such redemption shall be sent by the Paying Agent/Registrar by United States
mail, firs!-Class postage prepaid, at least 30 days prior to the date fixed for any such redemption, to the
registered owner of each Bond to be redeemed at its address as it appeared on the 45th day prior to such
redemption date and to major securities depositories, national bond rating agencies and bond information
services; provided, however, that the failure of the registered owner to receive such notice, or any defect
therein or in the sending or mailing thereof, shall not affect the validity or effectiveness of the proceedings
for the redemption of any Bond. By the date fixed for any such redemption due provision shall be made with
the Paying Agent/Registrar for the payment of the required redemption price for the Bonds or portions thereof
that are to be so redeemed. If such written notice of redemption is sent and if due provision for such payment
is made, all as provided above, the Bonds or portions thereof that are to be so redeemed thereby automatically
shall be treated as redeemed prior to their scheduled maturities, and they shall not bear interest after the date
fixed for redemption, and they shall not be regarded as being outstanding except for the right of the registered
owner to receive the redemption price from the Paying Agent/Registrar out of the funds provided for such
payment. If a portion of any Bond shall be redeemed, a substitute Bond or Bonds having the same maturity
date, bearing interest at the same rate, in any denomination or denominations in any integral multiple of
$5,000, at the written request of the registered owner, and in aggregate principal amount equal to the
unredeemed portion thereof, will be issued to the registered owner upon the surrender thereof for cancellation,
at the expense of the Issuer, all as provided in the Bond Ordinance.
THIS BOND OR ANY PORTION OR PORTIONS HEREOF IN ANY INTEGRAL MULTIPLE OF
$5,000 may be assigned and shall be transferred only in the Registration Books of the Issuer kept by the
Paying Agent/Registrar acting in the capacity of registrar for the Bonds, upon the terms and conditions set
forth in the Bond Ordinance. Among other requirements for such assignment and transfer, this Bond must
be presented and surrendered to the Paying Agent/Registrar. together with proper instruments ofassignment,
in form and with guarantee of signatures satisfactory to the Paying Agent/Registrar, evidencing assignment
BRIZ: 070S.067\S-23-200S-Refunding-Ordinance
13
of this Bond or any portion or portions hereof in any integral multiple of$5,000 to the assignee or assignees
in whose name or names this Bond or any such portion or portions hereof is or are to be transferred and
registered. The foan of Assignment printed or endorsed on this Bond shall be executed by the registered
owner or its duly authorized attorney or representative, to evidence the assignment hereof. A new Bond or
Bonds payable to such assignee or assignees (which then will be the new registered owner or owners of such
new Bond or Bonds), or to the previous registered owner in the case of the assignment and transfer of only
a portion of this Bond, may be delivered by the Paying Agent/Registrar in conversion of and exchange for
this Bond, all in the foan and manner as provided in the next paragraph hereof for the conversion and
exchange of other Bonds. The Issuer shall pay the Paying AgentlRegistrar's standard or customary fees and
charges for making such transfer, but the one requesting such transfer shall pay any taxes or other
governmental charges required to be paid with respect thereto. The Paying AgentlRegistrar shall not be
required to make transfers of registration of this Bond or any portion hereof (i) during the period commencing
with the close of business on any Record Date and ending with the opening of business on the next following
principal or interest payment date, or, (it) with respect to any Bond or any portion thereof called for
redemption prior to maturity, within 45 days prior to its redemption date. The registered owner of this Bond
shall be deemed and treated by the Issuer and the Paying AgentlRegistrar as the absolute owner hereof for
all purposes, including payment and discharge of liability upon this Bond to the extent of such payment, and
the Issuer and the Paying Agent/Registrar shall not be affected by any notice to the contrary.
ALL BONDS OF THIS SERIES are issuable solely as fully registered bonds, without interest
coupons, in the denomination of any integral multiple of$5,000. As provided in the Bond Ordinance, this
Bond, or any unredeemed portion hereof, may, at the request of the registered owner or the assignee or
assignees hereof, be converted into and exchanged for a like aggregate principal amount of fully registered
bonds, without interest coupons, payable to the appropriate registered owner, assignee, or assignees, as the
case may be, having the same maturity date, and bearing interest at the same rate, in any denomination or
denominations in any integral multiple of$5,000 as requested in writing by the appropriate registered owner,
assignee, or assignees, as the case may be, upon surrender of this Bond to the Paying AgentlRegistrar for
cancellation, all in accordance with the foan and procedures set forth in the Bond Ordinance. The Issuer shall
pay the Paying Agent/Registrar's standard or customary fees and charges for transferring, converting, and
exchanging any Bond or any portion thereof, but the one requesting such transfer, conversion, and exchange
shall pay any taxes or governmental charges required to be paid with respect thereto as a condition precedent
to the exercise of such privilege of conversion and exchange. The Paying Agent/Registrar shall not be
required to make any such conversion and exchange (i) during the period commencing with the close of
business on any Record Date and ending with the opening of business on the next following principal or
interest payment date, or, (ii) with respect to any Bond or portion thereof called for redemption prior to
maturity, within 45 days prior to its redemption date.
IN THE EVENT any Paying Agent/Registrar for the Bonds is changed by the Issuer, resigns, or
otherwise ceases to act as such, the Issuer has covenanted in the Bond Ordinance that it promptly will appoint
a competent and legally qualified substitute therefor, and will promptly cause written notice thereof to be
mailed to the registered owners of the Bonds.
IT IS HEREBY certified, recited, and covenanted that this Bond has been duly and validly
authorized, issued, sold, and delivered; that all acts, conditions, and things required or proper to be performed,
exist. and be done precedent to or in the authorization, issuance, and delivery of this Bond have been
perfoaned, existed, and been done in accordance with law; that this Bond is a special obligation of the Issuer,
secured by and payable, together with other bonds, from a first lien on and pledge of the "Pledged Revenues",
which include initially the "Net Revenues of the System", as such teans arc defined in the Bond Ordinance,
with the System consisting of the City's entire combined waterworks, sewer, and electric light and power
system.
BRIZ: 0705.067\5-23-2005-Refunding-Ordinance
14
THE ISSUER has reserved the right, subject to the restrictions stated in the Bond Ordinance, to issue
Additional Bonds payable from and secured by a first lien on and pledge of the "Pledged Revenues" on a
parity with this Bond and series of which it is a part.
THE ISSUER also has reserved the right, subject to the restrictions stated in the Bond Ordinance, to
amend the Bond Ordinance with the approval of the holders or owners of fifty-one percent in principal
amount of all outstanding bonds which are secured by and payable from a first lien on and pledge of the
Pledged Revenues.
THE REGISTERED OWNER hereof shall never have the right to demand payment of this Bond or
the interest hereon out of any funds raised or to be raised by taxation or from any source whatsoever other
than specified in the Bond Ordinance.
BY BECOMING the registered owner of this Bond, the registered owner thereby acknowledges all
of the tenns and provisions of the Bond Ordinance, agrees to be bound by such tenns and provisions,
acknowledges that the Bond Ordinance is duly recorded and available for inspection in the official minutes
and records of the governing body of the Issuer, and agrees that the tenns and provisions of this Bond and
the Bond Ordinance constitute a contract between each registered owner hereof and the Issuer.
IN WITNESS WHEREOF, the Issuer has caused this Bond to be signed with the manual or facsimile
signature of the Mayor of the Issuer and countersigned and attested with the manual or facsimile signature
of the City Secretary of the Issuer, and has caused the official seal of the Issuer to be duly impressed, or
placed in facsimile, on this Bond.
ATIEST:
CITY OF DENTON. TEXAS
By:
Euline Brock
Mayor, City of Denton, Texas
By:
Jennifer Walters
City Secretary, City of Denton, Texas
(CITY SEAL)
FORM OF PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE
PAYING AGENT/REGISTRAR'S AUTHENTICATION CERTIFICATE
It is hereby certified that this Bond has been issued under the provisions of the Bond Ordinance
described in mis Bond: and that this Bond has been issued in conversion of and exchange for or replacement
of a bond, bonds, or a portion of a bond or bonds of an issue which originally was approved by the Attorney
General of the State of Texas and registered by the Comptroller of Public Accounts of me State of Texas.
JPMORGAN CHASE BANK. NATIONAL ASSOCIATION
Paying Agent/Registrar
Dated
By
Authorized Representative
BRIZ: 070S.067IS-23-200S-Refunding-O,dinance
t5
(BOND INSURANCE LEGEND, IF ANY)
FORM OF ASSIGNMENT
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned registered owner of this Bond, or duly authorized
representative or attorney thereof, hereby assigns this Bond to
/ /
(Assignee's Social
Security or Taxpayer
Identification Number)
(print or typewrite Assignee's name and
address, including zip code)
and hereby irrevocably constitutes and appoints
attorney to transfer the registration of this Bond on the Paying Agent/Registrar's Registration Books with full
power of substitution in the premises.
Dated:
Signature Guaranteed:
Registered Owner
NOTICE: This signature must correspond with
the name of the Registered Owner appearing on
the face of this Bond in every particular without
alteration or enlargement or any change whatsoever.
NOTICE: Signature(s) must be guaranteed by
an eligible guarantor institution participating in
a securities transfer association recognized
signature guarantee program.
Section 8. DEFINITIONS. As used in this Ordinance the following terms shall have the meanings
set fonh below, unless the text hereof specifically indicates otherwise:
(a)
The terms "City" and "Issuer" shall mean the City of Denton, in Denton County, Texas.
(b)
The term "City Council" or "Council" shall mean the governing body of the City.
(c) The term "Bonds" shall mean collectively the Initial Bond as defined and described in Section
2 of this Ordinance and all substitute bonds exchanged therefor, and all other substitute bonds and
replacement bonds, issued pursuant to and as provided in this Ordinance.
(d) The term "Parity Bonds" shall mean collectively (i) the outstanding City of Denton Utility
System Revenue Refunding Bonds, Taxable Series 1993-B, authorized by ordinance passed on June 8, 1993
(the "Series 1993-B Bonds"), (ii) the outstanding City of Denton Utility System Revenue Bonds, Series 1996,
authorized by an ordinance passed on May 7, t996 (the "Series 1996 Bonds"), (iii) the outstanding City of
Denton Utility System Revenue Refunding Bonds, Series t 996-A, authorized by an ordinance passed on May
7, 1996 (the "Series t 996-A Bonds"), (iv) the outstanding City of Denton Utility System Revenue Bonds,
BRIZ: 070S.067\5-23-2005-Rcfunding-Ordinance
16
Series 1998, authorized by an ordinance passed on March 24, 1998 (the "Series 1998 Bonds"), (v) the
outstanding City of Denton Utility System Revenue Refunding Bonds, Series 1998A, authorized by an
ordinance passed on July 21, 1998 (the "Series 1998A Bonds"), (vi) the outstanding City of Denton Utility
System Revenue Refunding Bonds, Series t998B, authorized by an ordinanee passed on August 4, t 998 (the
"Series 1998B Bonds"), (vii) the outstanding City of Denton Utility System Revenue Bonds, Series 2000A,
authorized by an ordinanee passed on April 25, 2000 (the "Series 2000A Bonds"), (viii) the outstanding City
of Denton Utility System Revenue Bonds, Taxable Series 2000B, authorized by an ordinance passed on April
25,2000 (the "Taxable Series 2000B Bonds"), (ix) the outstanding City of Denton Utility System Revenue
Refunding and Improvement Bonds, Series 20Ot, authorized by an ordinance passed on April t 7,2001 (the
"Series 200t Bonds"), (x) the outstanding City of Denton Utility System Revenue Bonds, Series 2002A,
authorized by an ordinance passed on April 9, 2002 (the "Series 2002A Bonds"), (xi) the outstanding City
of Denton Utility System Revenue Bonds, Taxable Series 2002B, authorized by an ordinance passed on
April 9, 2002 (the "Taxable Series 2002B Bonds") (xii) the outstanding City of Denton Utility System
Revenue Refunding and Improvement Bonds, Series 2003, authorized by an ordinance passed on April I,
2003 (the "Series 2003 Bonds"), (xiii) the outstanding City of Denton Utility System Revenue Refunding
Bonds, Series 2004, authorized by an ordinance passed on September 7, 2004 (the "Series 2004 Bonds"), and
(xiv) the Bonds.
(e) The tenu "Additional Bonds" shall mean the additional parity revenue bonds which the City
reserves the right to issue in the future, in accordance with Section 26 of this Ordinance.
(f) The tcrm "System" shall mean (I) the City's entire existing waterworks and sewer system and
the City's entire existing electric light and power system, together with all future extensions, improvements,
enlargements, and additions thereto, and all replacements thereof, and (2) any other related facilities, all or
any part of the revenues or income from which do, in the future. at the option of the City, and in accordance
with law, become "Pledged Revenues" as hereinafter defined; provided that, notwithstanding the foregoing,
and to the extent now or hereafter authorized orpenuitted by law, the tenu System shall not mean any water,
sewer, electric, or other facilities of any kind which are declared not to be a part of the System, and which
are acquired or constructed by the City with the proceeds from the issuance of "Special Facilities Bonds",
which are hereby defmed as being special revenue obligations of the City which are not payable from or
secured by any Pledged Revenues, but which are secured by and payable from liens on and pledges of any
other revenues, sources, or payments, including, but not limited to, special contract revenues or payments
received from any other legal entity in connection with such facilities; and such revenues, sources, or
payments shall not be considered as or constitute Gross Revenues of the System, untess and to the extent
otherwise provided in the ordinance or ordinances authorizing the issuance of such "Special Facilities Bonds"
(g) The tenus "Gross Revenues of the System" and "Gross Revenues" shall mean all revenues
and income of every nature derived or received by the City from the operation and ownership of the System,
including the interest income from the investment or deposit of money in any Fund created by this Ordinance.
(Ii) The tenus "Net Revenues of the System", and "Net Revenues" shall mean all Gross Revenues
after deducting therefrom an amount equal to the current expenses of operation and maintenance of the
System, including all salaries, labor, materials, repairs, and extensions necessary to render efficient service,
provided, however, that only such repairs and extensions, as in the judgment of the City Council, reasonably
and fairly exercised by the adoption of appropriate resolutions, are necessary to keep the System in operation
and render adequate service to said City and the inhabitants thereof, or such as might be necessary to meet
some physical accident or condition which would otherwise impair the Bonds or Additional Bonds, shall be
deducted in detenuining "Net Revenues". Payments required to be made by the City for water supply or
water facilities, sewer services or sewer facilities, fuel supply, and for the purchase of electric power, which
payments under law constitute operation and maintenance expenses of any part of the System, shall constitute
BRIZ: 0705.067\5-23-2005-Refunding-O,dinance
17
and be regarded as expenses of operation and maintenance of the System nnder this Ordinance. Depreciation
and amortization shall not constitute or be regarded as expenses of operation and maintenance of the System.
(i)
The term "Pledged Revenues" shall mean
(1) the Net Revenues, plus
(2) the net revenues of the Drainage System, which shall be calculated on the same basis as
the Net Revenues of the System, plus
(3) any additional revenues, income, or other resources relating to the System which are
expected to be available to the City on a regular periodic basis, including, without limitation, any grants,
donations, or income received or to be received from the United States Government, or any other public or
private source, whether pursuant to an agreement or otherwise, which in the future may, at the option of the
City, be pledged to the payment of the Parity Bonds or Additional Bonds.
(ì) The term "year" or "fiscal year" shall mean the fiscal year used by the City in connection with
the operation of the System.
(1<) The term "Government Obligations" shall mean direct 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, which may be United States Treasury obligations such as its State and Local
Government Series, and which may be in book-enny form.
(1)
"Drainage System" means the City's entire existing drainage system and all facilities related
thereto.
(m) "Rate Stabilization Fnnd" means the City's separate Rate Stabilization Fund established for
the purpose of stabilizing rates for ratepayers.
Section 9. PLEDGE. (a) The Bonds are "Additional Bonds" as permitted by Sections 24 and 25 of
the ordinance passed on March 10, 1983, authorizing the City of Denton Revenue Refnnding Bonds, Series
1983 (the "Series 1983 Bonds"); and it is hereby determined, declared, and resolved that all of the Parity
Bonds (including the Bonds) are secured and payable equally and ratably on a parity, and that Sections 8
through 28, of this Ordinance are supplemental to and cumulative of Sections 7 through 27 of the aforesaid
ordinance passed on March 10, t983, with Sections 8 through 29 of this Ordinance being applicable to all
of the Parity Bonds.
(b) The Parity Bonds and any Additional Bonds, and the interest thereon, including any interest
coupons appertaining thereto, are and shall be secured by and payable from a first lien on and pledge of the
Pledged Revenues, and the Pledged Revenues are further pledged to the establishment and maintenance of
the Funds created by this Ordinance, and any Funds created by any ordinance authorizing the issuance of any
Additional Bonds. The Parity Bonds and any Additional Bonds arc not and will not be secured by or payable
from a mortgage or deed of trust on any real, personal, or mixed properties constituting the System.
Section 10. SYSTEM FUND. There heretofore has been and is hereby created and there shall be
established and maintained on the books of the City, and accounted for separate and apart from all other funds
of the City, a special fund to be entitled the "City of Denton Utility System Fund" (the "System Fund"). All
Gross Revenues shall be credited to the System Fund immediately upon receipt, nnless otherwise provided
in this Ordinance. All current expenses of operation and maintenance of the System shall be paid from such
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Gross Revenues credited to the System Fund as a first charge against same. Before making any deposits
hereinafter required to be made from the System Fund, the City shall retain in the System Fund at all times
an amount at least equal to one-sixth of the amount budgeted for the then current fiscal year for the current
operation and maintenance expenses of the System.
Section I t. INTEREST AND SINKING FUND. For the sole purpose of paying the principal of and
interest on all Parity Bonds and Additional Bonds, there heretofore has been and is hereby created and there
shall be established and maintained on the books of the City, and accounted for separate and apan from all
other funds of the City, a separate fund to be entitled the "City of Denton Utility System Revenue Bonds
Interest and Sinking Fund" (the "Interest and Sinking Fund").
Section 12. RESERVE FUND. There heretofore has been, and is hereby, created, and there shall
be established and maintained at IPMorgan Chase Bank, National Association, and hereafter, at the option
of the City, established and maintained at any time at any national bank having a capital and surplus in excess
of$25,000,000, a separate fund to be entitled the "City of Denton Utility System Bonds and Additional Bonds
Reserve Fund" (the "Reserve Fund"). The Reserve Fund shall be used to pay the principal of and interest on
any Parity Bonds or Additional Bonds when and to the extent the amounts in the Interest and Sinking Fund
available for such payment arc insufficient for such purpose, and may be used for the purpose of finally
retiring the last of any Parity Bonds or Additional Bonds.
Section 13. EXTENSION AND IMPROVEMENT FUND. There heretofore has been and is hereby
created and there shall be established and maintained on the books of the City, and accounted for separate
and apan from all other funds of the City, a separate fund to be entitled the "City of Denton Utility System
Extension and Improvement Fund" (the "Extension and Improvement Fund"). The Extension and
Improvement Fund shall be used for the purpose of paying the costs of improvements, enlargements,
extensions, additions, replacements, or other capital expenditures related to the System, or for paying the costs
of unexpected or extraordinary repairs or replacements of the System for which System funds arc not
available, or for paying unexpected or extraordinary expenses of operation and maintenance of the System
for which System funds are not otherwise available, or for any other lawful purpose.
Section 14. EMERGENCY FUND. There is hereby created and there shall be established and
maintained on the books of the City, and accounted for separate and apart from all other funds of the City,
a separate fund to be entitled the "City of Denton Utility System Emergency Fund" (the "Emergency Fund").
The Emergency Fund shall be used for the purpose of paying unexpected or extraordinary expenses of repair,
replacement, operation, and maintenance of the System for which neither System funds nor the moneys in
the Extension and Improvement Fund arc available. There was deposited in the Emergency Fund
simultaneously with the delivery of the Series t 983 Bonds to the initial purchasers thereof from lawfully
available funds of the City the amount of $250,000. All investment mterest income from the Emergency
Fund shall be transferred to the System Fund as received.
Section 15. DEPOSITS OF PLEDGED REVENUES. Pledged Revenues shall be credited to or
deposited in the Interest and Sinking Fund, the Reserve Fund, the Extension and Improvement Fund, and
other funds when and as required by this Ordinance and any ordinance authorizing the issuance of Additional
Bonds.
Section 16. INVESTMENTS. Money in any Fund established pursuant to this Ordinance or any
ordinance authorizing the issuance of Additional Bonds, may, at the option of the City, be placed in time
deposits or certificates of deposit secured by obligations of the type hereinafter described, or be invested in
Government Obligations (as defined in Section 8 hereof) or obligations guaranteed or insured by the United
States of America, which, in the opinion of the Attorney General of the United States, arc backed by its full
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faith and credit or represent its general obligations, or invested in obligations of instrumentalities of the
United States of America, including, but not limited to, evidences of indebtedness issued, insured, or
guaranteed by such governmental agencies as the Federal Land Banks, Federal Intenuediate Credit Banks,
Banks for Cooperatives, Federal Home Loan Banks, Government National Mongage Association, United
States Postal Service, Fanuers Home Administration, Federal Home Loan Mortgage Association, Small
Business Administration, Federal Housing Association, or Panicipation Certificates in the Federal Assets
Financing Trust; provided that all such deposits and invesnnents shall be made in such manner as will, in the
opinion of the City, penuit the money required to be expended from any Fund to be available at the proper
time or times as expected to be needed. Such invesnnents (except United States Treasury Obligations--State
and Local Government Series invesnnents held in book entry fonu, which shall at all times be valued at cost)
shall be valued in tenus of current market value as of the last day of each fiscal year. Unless otherwise set
forth herein, all interest and income derived from such deposits and invesnnents immediately shall be credited
to, and any losses debited to, the Fund from which the deposit or invesnnent was made, and surpluses in any
Fund shall or may be disposed of as hereinafter provided. Such invesnnents shall be sold promptly when
necessary to prevent any default in connection with the Parity Bonds or Additional Bonds consistent with the
ordinances, respectively, authorizing their issuance.
Section 17. FUNDS SECURED. That money in all Funds created by this Ordinance, to the extent
not invested, shall be secured in the manner prescribed by law.
Section 18. PRIORITY OF DEPOSITS AND PAYMENTS FROM SYSTEM FUND. That the City
shall make the deposits and payments from Pledged Revenues in the System Fund when and as required by
this Ordinance and any ordinance authorizing any Additional Bonds, and such deposits shall be made in the
following manner and with the following irrevocable priorities, respectively:
First,
to the Interest and Sinking Fund, when and in the amounts required by this
Ordinance and any ordinance authorizing any Additional Bonds; then
Second,
to the Reserve Fund, when and in the amounts required by this Ordinance and any
ordinance authorizing any Additional Bonds; then
Third,
to the Extension and Improvement Fund, when and as required by Section 21 of this
Ordinance.
Section 19. INTEREST AND SINKING FUND REQUIREMENTS The City shall cause to be
deposited. to the credit of the Interest and Sinking Fund the accrued interest received from the sale of the
Initial Bond, and on or before the 25th day of each month, the City shall cause to be deposited to the credit
of the Interest and Sinking Fund, in approximately equal monthly payments, amounts sufficient, together
with any other funds on hand therein, to pay all of the interest or principal and interest coming due, including
the principal amount of any Parity Bonds required to be redeemed prior to maturity pursuant to any
mandatory redemption requirements, on the Parity Bonds and any Additional Bonds on the next succeeding
interest payment date. Any moneys so deposited in the Interest and Sinking Fund with respect to a mandatory
redemption requirement, together with other lawfully available funds of the City, may be used by the City,
to purchase, in advance of a mandatory redemption date and at a price not exceeding the principal amount
thereof plus accrued interest thereon to the date of purchase. Parity Bonds which would be subject to being
chosen for mandatory redemption on such mandatory redemption date. The Paying Agent shall cancel any
Parity Bonds so purchased.
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Section 20. RESERVE FUND REQUIREMENTS. There is now on hand in the Reserve Fund an
amount of money and Government Obligations which is in excess of $3.000,000 and which is at least equal
to the average annual principal and interest requirements of the outstanding Taxable Series 1993-B Bonds,
the Series 1996 Bonds, the Series 1996-A Bonds, the Series 1998 Bonds, the Series I 998A Bonds, the Series
t 998B Bonds, the Series 2000A Bonds, the Series 2000B Bonds, the Series 200 I Bonds, the Series 2002A
Bonds, the Taxable Series 2002B Bonds, the Series 2003 Bonds, and the Series 2004 Bonds (the current
"Required Reserve Amonnt"). Following the issuance and delivery of the Initial Bonds the Required Reserve
Amonnt shall become and be an amonnt of money and investments equal to the average annual principal and
interest requirements of all the outstanding Parity Bonds and Additional Bonds; provided further, however,
that the Required Reserve Amount shall never be less than $3,000,000 if the maximum annual principal and
interest requirements on all outstanding Parity Bonds and Additional Bonds exceeds $3,000,000.
Immediately after the issuance and delivery of the Initial Bond there shall be deposited to the credit of the
Reserve Fund, from the proceeds of the sale of the Initial Bond, money sufficient to cause the Reserve Fund
to contain an aggregate amount of money and investments equal to the Required Reserve Amount for all then
outstanding Parity Bonds. After the delivery of any future Additional Bonds the City shall cause the Reserve
Fund to be increased, if and to the extent necessary, so that such Fund will contain an amonnt of money and
investments equal to the Required Reserve Amount. Any increase in the Required Reserve Amount may be
fnnded from Pledged Revenues, or from proceeds from the sale of any Additional Bonds, or any other
available source or combination of sources. All or any part of the Required Reserve Amonnt not fnnded
initially and immediately after the delivery of any installment or issue of Additional Bonds shall be funded,
within not more than five years from the date of such delivery, by deposits of Pledged Revenues in
approximately equal monthly installments on or before the 25th day of each month. Principal amounts ofthe
Parity Bonds and any Additional Bonds which must be redeemed pursuant to any applicable mandatory
redemption requirements shall be deemed to be maturing amonnts of principal for the purpose of calculating
principal and interest requirements on such bonds. When and so long as the amount in the Reserve Fund is
not less than the Required Reserve Amount no deposits shall be made to the credit of the Reserve Fnnd; but
when and if the Reserve Fund at any time contains less than the Required Reserve Amonnt, then the City shall
transfer from Pledged Revenues in the System Fund, and deposit to the credit of the Reserve Fund, monthly
on or before the 25th day of each month, a sum equal to 1/60th of the Required Reserve Amount, until the
Reserve Fund is restored to the Required Reserve Amount. The City specifically covenants that when and
so long as the Reserve Fnnd contains the Required Reserve Amonn!, the City shall cause all amounts in
excess of the Required Reserve Amount to be deposited to the credit of the Interest and Sinking Fnnd.
Section 21. EXTENSION AND IMPROVEMENT FUND REQUIREMENTS. During each year,
subject and subordinate to making the required deposits to the credit of the Interest and Sinking Fund and the
Reserve Fund, the City shall be required to deposit to the credit of the Extension and Improvement Fnnd,
from Pledged Revenues in the System Fnnd, an amonnt equal to 8% of the "Adjusted Gross Revenues of the
System", which term is hereby deemed to mean the following:
the Gross Revenues of the System for such year after deducting from such Gross Revenues
an amount equal to the current expenses of operation and maintenance of the System for such
year which are directly attributable to (i) all fuel costs related to the production of electric
energy by the City andlor (ii) the purchase of electric energy by the City.
Additionat excess Pledged Revenues may, at the option of the City ConnciI, be deposited to the credit of the
Improvement Fund as permined by Section 23 (b) hereof, but no such additional deposit is required. All
investment interest income from the Extension and Improvement Fnnd shall be retained in and remain a part
of such Fnnd.
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Section 22. RATE STABILIZATION FUND. (a) In each fiscal year, the City hereby agrees to
transfer the Transfer Amount (as defined below) from the Rate Stabilization Fund into the System Fund for
the purpose of paying the current expenses of operation and maintenance of the System and pledges such
Transfer Amount to the payment of the Bonds, all Parity Bonds and any Additional Bonds.
(b) The Transfer Amount shall be an amount of moneys and investtnents contained in the Rate
Stabili7.ation Fund equal to the amount for each fiscal year of the City that will, when added to the otherwise
expected Pledged Revenues for that fiscal year, produce an amount of Pledged Revenues during such fiscal
year at least equal to the greater of 1.25 times the average annual principal and interest requirements of all
then outstanding Bonds, Parity Bonds and Additional Bonds or 1.25 times the succeeding fiscal year's
principal and interest requirements of all then outstanding Bonds, Parity Bonds and Additional Bonds.
(c) The Transfer Amount will be calculated and reflected in the annual budget for each fiscal
year and will, on the first day of such fiscal year, be transferred from the Rate Stabilization Fund into the
System Fund.
Section 23. DEFICIENCIES; EXCESS PLEDGED REVENUES. (a) If on any oecasion there shall
not be sufficient Pledged Revenues to make the required deposits into the Interest and Sinking Fund or the
Reserve Fund, such deficiency shall be made up as soon as possible from the next available Pledged
Revenues.
(b) Subject to making the required deposits to the credit of the various Funds when and as
required by this Ordinance or any ordinance authorizing the issuance of Additional Bonds, any surplus
Pledged Revenues may be used by the City for any lawful purpose.
Section 24. PAYMENT OF PARITY BONDS AND ADDITIONAL BONDS On or before
December 1, 2005, and semiannually on or before each June I and December I thereafter while any of the
Parity Bonds or Additional Bonds are outstanding and unpaid the City shall make available to the Paying
Agents therefor, out of the Interest and Sinking Fund, or if necessary, out of the Reserve Fund, money
sufficient to pay, on each of such dates, the principal of and interest on the Parity Bonds and Additional
Bonds as the same matures and comes due, or to redeem the Parity Bonds or Additional Bonds prior to
maturity, either upon mandatory redemption or at the option of the City. At the direction of the City the
Paying Agents shall either deliver paid Parity Bonds and Additional Bonds, and any interest coupons
appertaining thereto, to the City or destroy all paid Parity Bonds and Additional Bonds, and any coupons
appertaining thereto, and furnish the City with an appropriate cetrificate of cancellation or destruction.
Section 25. FINAL DEPOSITS (a) Any Parity Bond or Additional Bond shall be deemed to be
paid, retired, and no longer outstanding within the meaning of this Ordinance when payment of the principal
of, redemption premium, if any, on such Parity Bond or Additional Bond, plus interest thereon to the due date
thereof (whether such due date be by reason of maturity , upon redemption, or otherwise) either (i) shall have
been made or caused to be made in accordance with the tenus thereof (including the giving of any required
notice of redemption or provision for the proper giving of such notice having been made), or (ii) shall have
been provided by irrevocably depositing with or making available to a Paying Agent therefor, in trust and
irrevocably set aside exclusively for such payment, (1) money sufficient to make such payment or (2)
Government Obligations which mature as to principal and interest in such amounts and at such times as will
insure the availability, without reinvesttnent, of sufficient money to make such payment, and all necessary
and proper fees, compensation, and expenses of sueh Paying Agent pertaining to the Parity Bonds and
Additional Bonds with respect to which such deposit is made shall have been paid or the payment thereof
provided for to the satisfaction of such paying agent. At such time as a Bond or Additional Bond shall be
deemed to be paid hereunder, as aforesaid, it shall no longer be secured by or entitled to the benefits of this
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Ordinance or a lien on and pledge of the Pledged Revenues, and shall be entitled to payment solely from such
money or Government Obligations.
(b) Any moneys so deposited with a paying agent may at the direction of the City also be
invested in Govenunent Obligations, maturing in the amounts and times as hereinbefore set forth, and all
income from all Government Obligations in the hands of the paying agent pursuant to this Section which is
not required for the payment of the Parity Bonds and Additional Bonds, the redemption premium, if any, and
interest thereon, with respect to which such money has been so deposited, shall be turned over to the City or
deposited as directed by the City.
Section 26. ADDITIONAL BONDS (a) The City shall have the right and power at any time and
from time to time, and in one or more series or issues, to authorize, issue, and deliver additional parity
revenue bonds (herein called" Additional Bonds"), in accordance with law, in any amounts, for any lawful
purpose, including the refunding of any Parity Bonds or Additional Bonds, or other obligations. Such
Additional Bonds, if and when authorized, issued, and delivered in accordance with this Ordinance, shall be
payablc from and secured by an irrevocable first lien on and pledge of the Pledged Revenues, equally and
ratably on a parity in all respects with the Parity Bonds and any other outstanding Additional Bonds.
(b) The principal of all Additional Bonds must be scheduled to be paid or mature on December
t of the years in which such principal is scheduled to be paid or mature.
Section 27. FURTHER REQUIREMENTS FOR ADDITIONAL BONDS. Additional Bonds shall
be issued only in accordance with this Ordinance, and no installment, Series, or issue of Additional Bonds
shall be issued or delivered unless:
(a) The Mayor of the City and the City Secretary sign a written certificate to the effect that the
City is not in default as to any covenant, condition, or obligation in connection with all then outstanding
Parity Bonds and Additional Bonds, and the ordinances authorizing same, and that the Interest and Sinking
Fund and the Reserve Fund each contains the amount then required to be therein.
(b) An independent certified public accountant, or independent firm of certifIed public
accountants, acting by and through a cenifled public accountant, signs a written certificate to the etTect that,
in his or its opinion, during either the next preceding fiscal year, or any tWelve consecutive calendar month
period out of the t 8-month period immediately preceding the month in which the ordinance authorizing the
issuance of the then proposed Additional Bonds is passed, the Pledged Revenues were at least (i) 1.25 times
an amount equal to the average annual principal and interest requirements, and (ii) I. t 0 times an amount
equal to the principal and interest requirements during the fiscal year during which such requirements are
scheduled to be the greatest, of all Parity Bonds and Additional Bonds which are scheduled to be outstanding
after the delivery of the then proposed Additional Bonds. It is specifically provided, however, that in
calculating the amount of Pledged Revenues for the purposes of this subsection (b), if there has been any
increase in the rates or charges for services of the System which is then in etTect, but which was not in effect
during all or any pan of the entire period for which the Pledged Revenues are being calculated (hereinafter
referred to as the "entire period") then the certified public accountant, or in lieu of the certified public
accountant a firm of consulting engineers, shall determine and certify the amount of Pledged Revenues as
being the total of (i) the actual Plcdged Revenues for the entire period, plus (ii) a sum equal to the aggregate
amount by which the actual billings to customers of the System during the entire period would have been
increased if such increased rates or charges had been in effect during the entire period.
(c) Provision shall be made in the ordinance authorizing their issuance for increasing the Reserve
Fund to the Required Reserve Amount as required by Section 20 hereof.
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(d) All calculations of average annual principal and interest requirements of any bonds made in
connection with the issuance of any then proposed Additional Bonds shall be made as of the date of such
Additional Bonds; and also in making calculations for such purpose, and for any other purpose under this
Ordinance, principal amounts of any bonds which must be redeemed prior to maturity pursuant to any
applicable mandatory redemption requirements shall be deemed to be maturing amounts of principal of such
bonds.
Section 28. GENERAL COVENANTS. The City further covenants and agrees that in accordance
with and to the extent required or permitted by law:
(a) PerfonTIance. It will faithfully perfonTI at all times any and all covenants, undertakings,
stipulations, and provisions contained in this Ordinance, and each ordinance authorizing the issuance of
Additional Bonds, and in each and every Parity Bond and Additional Bond; that it will promptly payor cause
to be paid the principal of and interest on every Parity Bond and Additional Bond, on the dates and in the
places and manner prescribed in such ordinanees and Parity Bonds or Additional Bonds; and that it will. at
the times and in the manner prescribed, deposit or cause to be deposited the amounts required to be deposited
into the Interest and Sinking Fund and the Reserve Fund; and any holder of the Parity Bonds or Additional
Bonds may require the City, its officials, and employees, to carry out, respect, or enforce the covenants and
obligations of this Ordinance, or any ordinance authorizing the issuance of Additional Bonds, by all legal and
equitable means, including specifically, but without limitation, the use and filing of mandamus proceedings,
in any coun of competent jurisdiction, against the City, its officials, and employees.
(b) Citv's Legal Authoritv. The City is a duly created and existing home rule city of the State
of Texas, and is duly authorized under the laws of the State of Texas to create and issue the Parity Bonds and
Additional Bonds; that all action on its part for the creation and issuance of the said obligations has been or
will be duly and effectively taken, and that said obligations in the hands of the holders and owners thereof
are and will be valid and enforceable special obligations of the City in accordance with their tenTIs.
(c) Title. The City has or will obtain lawful title to the lands, buildings, structures, and facilities
constituting the System, that it warrants that it will defend the title to all the aforesaid lands, buildings,
structures, and facilities, and every part thereof. for the benefit of the holders and owners of the Parity Bonds
and Additional Bonds, against the claims and demands of all persons whomsoever, that it is lawfully qualified
to pledge the Pledged Revenues to the payment of the Parity Bonds and Additional Bonds in the manner
prescribed herein, and has lawfully exercised sueh rights.
(d) Liens. The City will from time to time and before the same become delinquent pay and
discharge all taxes, assessments, and governmental charges, if any, which shall be lawfully imposed upon it,
or the System, that it will pay all lawful claims for rents, royalties, labor, materials, and supplies which if
unpaid might by law become a lien or charge thereon, the lien of which would be prior to or interfere with
the liens hereof, so that the priority of the liens granted hereunder shall be fully preserved in the manner
provided herein, and that it will not create or suffer to be created any mechanic's, laborer's, materialman's,
or other lien or charge which might or could be prior to the liens hereof, or do or suffer any matter or thing
whereby the liens hereof might or could be impaired; provided, however, that no such tax, assessment, or
charge, and that no such claims which might be used as the basis of a mechanic's, laborer's, materialman's,
or other lien or charge, shall be required to be paid so long as the validity of the same shall be contested in
good faith by the City.
(e) Operation ofSvstem' No Free Serviee. While the Parity Bonds or any Additional Bonds are
outstanding and unpaid the City shall continuously and efficiently operate the System, and shall maintain the
System in good condition, repair, and working order, all at reasonable cost No free service of the System
BRIZ, 0705.067\5-23-2005-Rcfunding-Ordinancc
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shall be allowed, and should the City or any of its agencies, instrumentalities, lessors, or concessionaires
make use of the services and facilities of the System, payment monthly of the standard retail price of the
services provided shall be made by the City or any of its agencies, instrumentalities, lessors, or
concessionaires out of funds from sources other than the revenues of the System, unless made from surplus
Pledged Revenues as permitted by Section 23(b) hereof.
(I) Further Encumbrance. While the Parity Bonds or any Additional Bonds are outstanding and
unpaid, the City shall not additionally encumber the Pledged Revenues in any manner, except as permitted
in this Ordinance in connection with Additional Bonds, unless said encumbrance is made junior and
subordinate in all respects to the liens, pledges, covenants, and agreements of this Ordinance and any
ordinance authorizing the issuance of Additional Bonds; but the right of the City to issue revenue bonds
payable from a subordinate lien on surplus Pledged Revenues is specifically recognized and retained, as
permitted under Section 23(b) hereof.
(g) Sale. Lease or DisDosal ofProDertv. No part of the System shall be sold, leased, mortgaged,
demolished, removed or otherwise disposed of, except as follows:
(1) To the extent permitted by law, the City may sell, lease, mortgage, demolish, remove
or otherwise dispose of at any time and from time to time any property or facilities constituting part
of the System only if(A) the City Council shall determine, as evidenced by a resolution to that effect,
such property or facilities are not useful in the operation of the System, or (B) the proceeds of such
sale are $250,000 or less, or the City Council shall determine, as evidenced by a resolution to that
effect, the fair market value of the property or facilities exchanged is $250,000 or less, or (C) if such
proceeds or fair market value exceed $250,000 the City Council shall determine, as evidenced by a
resolution to that effect, that the sale or exchange of such property or facilities will not impair the
ability of the City to comply during the current or any future fiscal year with the covenant of the City
set forth in Section 28(i) of this Ordinance. The proceeds of any such sale or exchange not used to
acquire other property necessary or desirable for the sale or efficient operation of the System shall
forthwith, at the option of the City, (i) to be used to redeem or purchase Parity Bonds or Additional
Bonds, (ii) otherwise be used to provide for the payment of Parity Bonds or Additional Bonds or (iii)
be used for any other lawful purpose.
(2) To the extent permitted by law, the City may lease or make contracts or grant
licenses for the operation of, or make aITangements for the use of, or grant casements or other rights
with respecl to, any part of the System, provided that any such lease, contract, license, aITangement,
easement or right (A) does not impede the operation of the System by the City and (B) does not in
any manner impair or adversely affect the rights or security of the owners of the Parity Bonds or
Additional Bonds under this Ordinance; and provided, further, that if the depreciated cost of the
property to be covered by any such lease, contract. license, aITangement, casement or other right is
in excess of $500,000, the City Council shall determine, as evidenced by a resolution to that effect,
that the action of the City with respect thereto does not result in a breach of the conditions under this
clause (2). Any payments received by the City under or in cormection with any such lease, contract,
license, arrangement, easement or right in respect of the System or any part thereof shall constitute
Gross Revenues.
(11) Insurance. (1) The City shall cause to be insured such parts of the System as would usually
be insured by corporations operating like properties, with a responsible insurance company or companies,
against risks, accidents, or casualties against which and to the extent insurance is usually caITied by
corporations operating like properties, including, to the extent reasonably obtainable, fire and extended
coverage insurance. insurance against damage by floods. and use and occupancy insurance. Public liability
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and property damage insurance also shall be carried unless the City Attorney gives a written opinion to the
effect that the City is not liable for claims which would be protected by such insurance. All insurance
premiums shall be paid as an expense of operation of the System. At any time while any contractor engaged
in construction work shall be fully responsible therefor, the City shall not be required to cany insurance on
the work being constructed if the contractor is required to carry appropriate insurance. All such policies shall
be open to the inspection of the Bondholders and their representatives at all reasonable times. Upon the
happening of any loss or damage covered by insurance from one or more of said causes, the City shall make
due proof of loss and shall do all things necessary or desirable to cause the insuring companies to make
payment in full directly to the City. The proceeds of insurance covering such property, together with any
other funds necessary and available for such purpose, shall be used forthwith by the City for repairing the
property damaged or replacing the property destroyed; provided, however, that if said insurance proceeds and
other funds are insufficient for such purpose, then said insurance proceeds pertaining to the System shall be
deposited in a special and separate trust fund, at an official depository of the City, to be designated the
Insurance Account. The Insurance Account shall be held until such time as other funds become available
which, together with the Insurance Account, will be sufficient to make the repairs or replacements originally
required.
(2) The annual audit hereinafter required may contain a section commenting on whether or not the
City has complied with the requirements of this Section with respect to the maintenance of insurance, and
shall state whether or not all insurance premiums upon the insurance policies to which reference is made have
been paid.
(i) Annual Budget and Rate Covenant. The City shall prepare, prior to the beginning of each
fiscal year, an annual budget, in accordance with law, reflecting an estimate of cash receipts and
disbursements for the ensuing fiscal year in sufficient detail to indicate the probable Gross Revenues and
Pledged Revenues for such fiscal year. The City shall fix, establish, maintain, and collect, such rates, charges,
and fees for the use and availability of the System at all times as are necessary (I) to produce Gross Revenues
sufficient, together with any other Pledged Revenues, to pay all current operation and maintenance expenses
of the System, and (2) to produce an amount of Pledged Revenues during each fiscal year at least equal to
the greater of 1.25 times the average annual principal and interest requirements of all then outstanding Parity
Bonds and Additional Bonds or 1.25 times the succeeding fiscal year's principal and interest requirements
of all then outstanding Parity Bonds and Additional Bonds.
G) Records. The City shall keep proper books of record and account in which full, true, proper,
and correct entries will be made of all dealings, activities, and transactions relating to the System, the Pledged
Revenues, and the Funds created pursuant to this Ordinance, and all books, documents, and vouchers relating
thereto shall at all reasonable times be made available for inspection upon request of any Bondholder,
provided, that all books, documents, and vouchers relating to the City's electric system shall be made
available for inspection only to the extent required by law, including, without limitation, the provisions of
Section 552.133 of the Texas Government Code. To the extent consistent with the provisions of this
Ordinance, the City shall keep its books and records in a manner confonning to sta¡{dard accounting practices
as usually would be followed by private corporations owning and operating a similar System, with
appropriate recognition being given to essential differences between municipal and corporate accounting
practices.
(k) Audits. After the close of each fiscal year while any of the Parity Bonds or any Additional
Bonds are outstanding, an audit will be made of the books and accounts relating to the System and the
Pledged Revenues by an independent certified public accountant or an independent finn of certified public
accountants. As soon as practicable after the close of each such year, and when said audit has been completed
and made available to the City, a copy of such audit for the preceding year shall be mailed to the Municipal
BRIZ, 0705.067\5-23-2005-Refunding-Ordinance
26
Advisory Council of Texas, to each paying agent for any bonds payable from Pledged Revenues, and to any
Bondholders who shall so request in writing. The annual audit reports shall be open to the inspection of the
Bondholders and their agents and representatives at all reasonable times.
(I) Governmental Agencies. It will comply with all of the terms and conditions of any and all
franchises, permits, and authorizations applicable to or necessary with respect to the System, and which have
been obtained from any governmental agency; and the City has or will obtain and keep in full force and effect
all franchises, permits, authorization, and other requirements applicable to or necessary with respect to the
acquisition, construction, equipment, operation, and maintenance of the System.
(m) No Competition. It will not operate, or grant any franchise or, to the extent it legally may,
permit the acquisition, construction, or operation of, any facilities which would be in competition with the
System, and to the extent that it legally may, the City will prohibit any such competing facilities.
(n) No Arbitrage. The City covenants to and with the purchasers of the Parity Bonds and any
Additional Bonds that no use will be made of the proceeds of any of such bonds at any time throughout the
term of any of such bonds which, if such use had been reasonably expected on the date of delivery of any of
such bonds to and payment therefor by the purchasers, would have caused any of such bonds to be arbitrage
bonds within the meaning of Section 148 of the Internal Revenue Code ofl986, as amended (the "Code"), or
any regulations or rulings pertaining thereto; and by this covenant the City is obligated to comply with the
requirements of the aforesaid Code and all applicable and pertinent Department of the Treasury regulations
relating to arbitrage bonds. The City further covenants that the proceeds of all such bonds will not otherwise
be used directly or indirectly so as to cause all or any pan of such bonds to be or become arbitrage bonds
within the meaning of the aforesaid Code, or any regulations pertaining thereto.
Section 29. AMENDMENT OF ORDINANCE. (a) The holders or owners of Parity Bonds and
Additional Bonds aggregating in principal amount 51% of the aggregate principal amount of then outstanding
Parity Bonds and Additional Bonds shall have the right from time to time to approve any amendment to this
Ordinance which may be deemed necessary or desirable by the City, provided, however, that nothing herein
contained shall permit or be construed to permit the amendment of the terms and conditions in this Ordinance
or in the Parity Bonds or Additional Bonds so as to:
(I)
Make any change in the maturity of the outstanding Parity Bonds or Additional Bonds;
(2)
Reduce the rate of interest borne by any of the outstanding Parity Bonds or Additional Bonds;
(3)
Reduce the amount of the principal payable on the outstanding Parity Bonds or Additional
Bonds;
(4) Modify the terms of payment of principal of or interest on the outstanding Parity Bonds or
Additional Bonds, or impose any conditions with respect to such payment;
(5) Affect the rights of the holders or owners ofless than all of the Parity Bonds and Additional
Bonds then outstanding;
(6) Change the minimum percentage of the principal amount of Parity Bonds and Additional
Bonds necessary for consent to such amendment.
(b) If at any time the City shall desire to amend the Ordinance under this Section, the City shall
cause notice of the proposed amendment to be published in a financial publication of general circulation in
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27
The City of New York, New York, once during each calendar week for at least two successive calendar
weeks. Such notice shall briefly set forth the nature of the proposed amendment and shall state that a copy
thereof is on file at the principal office of the Paying Agents for inspection by all holders or owners of Parity
Bonds and Additional Bonds. Such publication is not required, however, if notice in writing is given to each
holder or owner of Parity Bonds and Additional Bonds.
(c) Whenever at any time not less than thirty days, and within one year, from the date of the first
publication of said notice or other service of written notice the City shall receive an instrument or instruments
executed by the holders or owners of at least 51% in aggregate principal amount of all Parity Bonds and
Additional Bonds then outstanding, which instrument or instruments shall refer to the proposed amendment
described in said notice and which specifically consent to and approve such amendment in substantially the
form of the copy thereofon file with the Paying Agents, the City Council may pass the amendatory ordinance
in substantially the same form.
(d) Upon the passage of any amendatory ordinance pursuant to the provisions of this Section,
this Ordinance shall be deemed to be amended in accordance with such amendatory ordinance, and the
respective rights, duties, and obligations under this Ordinance of the City, and all the holders or owners of
then outstanding Parity Bonds and Additional Bonds and all future Parity Bonds and Additional Bonds shall
thereafter be determined, exercised, and enforced hereunder, subject in all respects to such amendments.
(e) Any consent given by the holder or owner of a Parity Bond or Additional Bond pursuant to
the provisions of this Section shall be irrevocable for a period of one year from the date of the first publication
of the notice provided for in this Section, and shall be conclusive and binding upon all future holders or
owners of the same Parity Bond or Additional Bond during such period. Such consent may be revoked at any
timc after one year from the date of the first publication of such notice by the holder or owner who gave such
consent, or by a successor in title, by filing notice thereof with the paying agents and the City, but such
revocation shall not be effective if the holders or owners of 51% in aggregate principal amount of the then
outstanding Parity Bonds and Additional Bonds as in this Section defined have, prior to the attempted
revocation, consented to, and approved the amendment
(I) For the purpose of this Section, the fact of the holding of Parity Bonds or Additional Bonds
which are in bearer, coupon form, by any bondholder and the amount and numbers of such bearer Parity
Bonds or Additionat Bonds and the date of their holding same, may be proved by the affidavit of the person
claiming to be such holder or owner, or by a certificate executed by any trust company, bank, banker, or any
other depository wherever situated showing that at the date therein mentioned such person had on deposit
with such trust company, bank, banker, or other depository, the Parity Bonds and Additional Bonds described
in such certificate. The City may conclusively assume that such ownership continues until written notice to
the contrary is served upon the City. The ownership of all registered Parity Bonds and Additional Bonds shall
be determined from the registration books kept by the registrar therefor.
Section 30. DAMAGED, MUTILATED, LOST, STOLEN, OR DESTROYED BONDS. (a)
Reolacement Bonds. In the event any outstanding Bond is damaged, mutilated, lost, stolen, or destroyed, the
Paying AgentlRegistrar shall cause to be printed, executed, and delivered, a new bond of the same principal
amount, maturity, and interest rate, as the damaged, mutilated, lost, stolen, or destroyed Bond, in replacement
for such Bond in the manner hereinafter provided.
(b) Application for Replacement Bonds. Application for replacemcnt of damaged, mutilated,
lost, stolen, or destroyed Bonds shall be made by the registered owner thereof to the Paying Agent/Registrar.
In every case of loss, theft, or destruction of a Bond, the registered owner applying for a replacement bond
shall furnish to the Issuer and to the Paying Agent/Registrar such security or indemnity as may be required
BRIZ: 070S.067IS-23-200S-Refunding-Ordinance
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by them to save each of them harmless from any loss or damage with respect thereto. Also, in every case of
loss, theft, or destruction of a Bond, the registered owner shall furnish to the Issuer and to the Paying
Agent/Registrar evidence to their satisfaction of the loss, theft, or destruction of such Bond, as the case may
be. In every case of damage or mutilation of a Bond, the registered owner shall surrender to the Paying
AgentlRegistrar for cancellation the Bond so damaged or mutilated.
(c) No Default Occurred. Notwithstanding the foregoing provisions of this Section, in the event
any such Bond shall have matured, and no default has occurred which is then continuing in the payment of
the principal of, redemption premium, if any, or interest on the Bond, the Issuer may authorize the payment
of the same (without surrender thereof except in the case ofa damaged or mutilated Bond) instead of issuing
a replacement Bond, provided security or indemnity is furnished as above provided in this Section.
(d) Charge for Issuing Replacement Bonds. Prior to the issuance of any replacement bond, the
Paying Agent/Registrar shall charge the registered owner of such Bond with all legal, printing, and other
expenses in connection therewith. Every replacement bond issued pursuant to the provisions of this Section
by virtue of the fact that any Bond is lost, stolen, or destroyed shall constitute a contractual obligation of the
Issuer whether or not the lost, stolen, or destroyed Bond shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the benefits of this Ordinance equally and proportionately with any and
all other Bonds duly issued under this Ordinance.
(e) Authoritv for Issuing Replacement Bonds. In accordance with Chapter 1201, Texas
Government Code, this Section of this Ordinance shall constitute authority for the issuance of any such
replacement bond without necessity of further action by the governing body of the Issuer or any other body
or person, and the duty of the replacement of such bonds is hereby authorized and imposed upon the Paying
Agent/Registrar, and the Paying Agent/Registrar shall authenticate and deliver such Bonds in the form and
manner and with the effect, as provided in Section 6(d) of this Ordinance for Bonds issued in conversion and
exchange for other Bonds.
Section 31. COVENANTS REGARDING TAX-EXEMPTION. The !ssuercovenants to refrain from
any action which would adversely affect, and to take such action to ensure, the treatment of the Bonds as
obligations described in section 103 of the Code, the interest on which is not includable in the "gross income"
of the holder for purposes offederal income taxation. In furtherance thereof, the Issuer covenants as follows:
(a) to take any action to assure that no more than 10 percent of the procecds of the
Bonds (less amounts deposited to a reserve fund, if any) arc used for any "private business use", as
defined in section t41(b)(6) of the Code or, if more than 10 percent of the proceeds arc so used, that
amounts, whether or not received by the Issuer, with respect to such private business use, do not,
under the terms of this Ordinance or any underlying arrangement, directly or indirectly, secure or
provide for the payment of more than 10 percent of the debt service on the Bonds, in contravention
of section 141 (b)(2) of the Code;
(b) to take any action to assure that in the event that the "private business use" described
in subsection (a) hereof exceeds 5 percent of the proceeds of the Bonds (less amounts deposited into
a reserve fund, if any) then the amount in excess of 5 percent is used for a "private business use"
which is "related" and not "disproportionate", within the meaning of section t4t(b)(3) of the Code,
to the governmental use;
(c) to take any action to assure that no amount which is greater than the lesser of
$5,000.000, or 5 percent of the proceeds of the Bonds (less amounts deposited into a reserve fund,
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if any) is directly or indirectly used to finance loans to persons, other than state or local governmental
units, in contravention of section t41(c) of the Code;
(d) to refrain from taking any action which would otherwise result in the Bonds being
treated as "private activity bonds" within the meaning of section 141(b) of the Code;
(e) to refrain from taking any action that would result in the Bonds being "federally
guaranteed" within the meaning of section 149(b) of the Code;
(f) to refrain from using any portion of the proceeds of the Bonds, directly or indirectly,
to acquire or to replace funds which were used, directly or indirectly, to acquire invesnuent property
(as defined in section t 48(b )(2) of the Code) which produces a materially higher yield over the term
of the Bonds, other than invesnuent property acquired with --
(I) proceeds of the Bonds invested for a reasonable temporary period
of 30 days or less in the case of an advance refunding bond and 90 days of less in
the case of a current refunding bond,
(2) amounts invested in a bona fide debt service fund, within the meaning of
section t.l48-I(b) of the Treasury Regulations, and
(3) amounts deposited in any reasonably required reserve or replacement fund
to the extent such amounts do not exceed 10 percent of the stated principal amount (or, in
the case of a discount, the issue price) of the Bonds;
(g) to otherwise restrict the use of the proceeds of the Bonds or amounts treated as
proceeds of the Bonds, as may be necessary, so that the Bonds do not otherwise contravene the
requirements of section 148 of the Code (relating to arbitrage). Section 149(g) of the Code (relating
to hedge bonds), and, to the extent applicable, section 149(d) of the Code (relating to advance
refundings); and
(b) to pay to the United States of America at least once during each five-year period
(beginning on the date of delivery of the Bonds) an amount that is at least equal to 90 percent of the
"Excess Earnings", within the meaning of section 148(f) of the Code and to pay to the United States
of America, not later that 60 days after the Bonds have been paid in full, tOO percent of the amount
then required to be paid as a result of Excess Earnings under section t48(f) of the Code.
For purposes of the foregoing (a) and (b), the Issuer understands that the term "proceeds" includes
"disposition proceeds" as defined in the Treasury Regulations and, in the case of refunding bonds, transferred
proceeds (if any) and proceeds of the refunded bonds expended prior to the date of issuance of the Bonds.
It is the understanding of the Issuer that the covenants contained herein arc intended to assure compliance
with the Code and any regulations or rulings promulgated by the U.S. Department of the Treasury pursuant
thereto In the event that regulations or rulings are hereafter promulgated which modify, or expand provisions
of the Code, as applicable to the Bonds, the Issuer will not be required to comply with any covenanteontained
herein to the extent that such failure to comply, in the opinion of nationally-recognized bond counsel, will
not adversely affect the exemption from federal income taxation of interest on the Bonds under section t 03
of the Code. In the event that regulations or rulings are hereafter promulgated which impose additional
requirements which are applicable to the Bonds, the Issuer agrees to comply with the additional requirements
to the extent necessary and reasonably possible, in the opinion of nationally-recognized bond counsel, to
preserve the exemption from federal income taxation of interest on the Bonds under section 103 of the Code.
BRIZ: 0705.067\5-23-2005-Refunding-Ordinance
30
In furtherance of such intention, the Issuer hereby authorizes and directs the Mayor to execute any documents,
certi[¡cates or reports required by the Code and to make such elections, on behalf of the Issuer, which may
be permitted by the Code as are consistent with the purpose for the issuance of the Bonds. The Issuer
covenants to comply with the covenants contained in this section after defeasance of the Bonds.
In order to facilitate compliance with the above covenant (h), a "Rebate Fund" is hereby established
by the Issuer for the sale bene[¡t of the United States of America, and such fund shall not be subject to the
claim of any other person, including without limitation, the owners of the Bonds. The Rebate Fund is
established for the additional purpose of compliance with Section 148 of the Code.
Section 32. DISPOSITION OF PROJECT. The Issuer covenants that the property constituting the
projects [¡nanced or re[¡nanced with proceeds of the Refunded Bonds will not be sold or otherwise disposed
in a transaction resulting in the receipt by the Issuer of cash or other compensation, unless the Issuer obtains
an opinion of nationally-recognized bond counsel that such sale or other disposition will not adversely affect
the tax-exempt status of the Bonds. For purposes of the foregoing, the portion of the property comprising
personal property and disposed of in the ordinary course shall not be treated as a transaction resulting in the
receipt of cash or other compensation. For purposes hereof, the Issuer shall not be obligated to comply with
this covenant if it obtains an opinion that such failure to comply will not adversely affect the excludability
for federal income tax purposes from gross income of the interest.
Section 33. INTEREST EARNINGS ON BOND PROCEEDS. Interest earnings derived from the
investtnent of proceeds from the sale of the Initial Bonds, other than proceeds deposited in the Interest and
Sinking Fund and the Reserve Fund, shall be used along with other available proceeds for improving the
System: provided that after completion of the improvements if any of such interest earnings remain on hand,
such interest earnings shall be deposited in the Interest and Sinking Fund. It is further provided, however,
that any interest earnings on bond proceeds which are required to be rebated to the United States of America
pursuant to the Covenants Regarding Tax-Exemption herein so as to prevent the Bonds from being arbitrage
bonds shall be so rebated and not considered as interest earnings for the purposes of this Ordinance.
Section 34. CUSTODY, APPROVAL, AND REGISTRATION OF BONDS; BOND COUNSEL'S
OPINION, CUSIP NUMBERS, PREAMBLE, AND INSURANCE The Mayor of the Issuer is hereby
authorized to have control of the Initial Bonds issued hereunder and all necessary records and proceedings
pertaining to the Initial Bond pending their delivery and the investigation, examination, and approval by the
Attorney General of the State of Texas, and the registration by the Comptroller of Public Accounts of the
State of Texas. Upon registration of the Initial Bond said Comptroller of Public Accounts (or a deputy
designated in writing to act for said Comptroller) shall manually sign the Comptroller's Registration
Certi[¡cate on the Initial Bond, and the seal of said Comptroller shall be impressed, or placed in facsimile,
on the Initial Bonds. The approving legal opinion of the Issuer's Bond Counsel and the assigned CUSIP
numbers may, at the option of the Issuer, be printed on the Initial Bond or on any Bonds issued and delivered
in conversion of and exchange or replacement of any Bond, but neither shall have any legal effect, and shall
be solely for the convenience and information of the registered owners of the Bonds. The preamble to this
Ordinance is hereby adopted and made a part hereoffor all purposes. Ifinsurance is obtained on any of the
Bonds, the Initial Bond and all other Bonds shall bear an appropriate legend concerning insurance as provided
by the insurer.
Section 35. SALE OF INITIAL BOND: BOND INSURANCE. (a) The Initial Bond is hereby sold
and shall be delivered to RBC DAIN RAUSCHER INC., as representative of the underwriters, in accordance
with the Purchase Contract dated the date of this meeting and presented to the City Council of the City at this
meeting. The City Council hereby fmds that the terms of the Purchase Contract arc the most advantageous
BRIZ, 0705.067\5-23-2005-Refunding-Ordinance
31
tenns for the City that are reasonably available. The Mayor of the Issuer is authorized and directed to
execute, on behalf of the Issuer, said Purchase Contract in the fonn and substance submitted at this meeting.
(b) The Issuer approves the insurance of the Bonds by Financial Security Assurance Inc. and the
payment of the premium on the Insurance Policy and covenant to comply with the tenns of the insurance
commitment, as set forth in Exhibit B attached hereto and hereby adopted by this Ordinance.
Section 36. OFFICIAL STATEMENT. An Official Statement dated as of the date of this meeting
has been prepared in connection with the sale of the Initial Bonds and the Bonds, in the fonn and substance
submitted at this meeting. Said Official Statement and any supplement or addenda thereto have been and are
hereby approved, and their use in the offer and sale of the Bonds is hereby approved. It is further officially
foWld, detennined, and declared that the statements and representations contained in said Official Statement
are true and correct in all material respects, to the best knowledge and belief of the Issuer. The distribution
and use of the Preliminary Official Statement dated May 17, 2005, prior to the date hereof is hereby ratified
and approved.
Section 37. REFUNDING OF REFUNDED BONDS. Concurrently with the delivery of the Initial
Bonds the Issuer shall deposit an amount from the proceeds from the sale of the Initial Bonds with lPMorgan
Chase Bank, National Association, as Escrow Agent, sufficient, together with other available amounts, to
refWld all of the Refunded Bonds in accordance with Chapter 1207, Texas Government Code, as amended.
The Issuer hereby authorizes the execution of the Escrow Agreement dated as of May 15,2005 between the
Escrow Agent and the Issuer. The Mayor of the Issuer is authorized and directed to execute, on behalf of the
Issuer, said Escrow Agreement in the fonn and substance presented to this meeting. It is hereby found and
detennined that the refWlding of the Refunded Bonds is advisable and necessary in order to restructure the
debt service requirements and procedures of the Issuer, and that the debt service requirements on the Bonds
will be less than those on the Refunded Bonds, resulting in a reduction in the amount of principal and interest
which otherwise would be payable both on an actual and a present value basis being an actual gross debt
service savings of approximately $4,014,009.85, and a present value debt service savings of approximately
$3,125,998.81.
Section 38. REDEMPTION OF REFUNDED BONDS. There is attached hereto as Exhibit C and
made a part hereof for all purposes a notice of redemption for the RefWlded Bonds, which Refunded Bonds
are hereby called for redemption, and shall be redeemed, prior to their scheduled maturities, on the date, at
the place, and at the price, set forth therein; the Issuer shall cause the appropriate notices of such redemption
to be given in accordance with the requirements of the respective proceedings authorizing the issuance of
such RefWlded Bonds; and due provision shall be made by the Issuer in accordance with law for the payment
of the redemption price of said bonds by the place of payment (paying agent) for such Refunded Bonds.
Section 39. DTC REGISTRATION. The Bonds initially shall be issued and delivered in such
manner that no physical distribution of the Bonds will be made to the public, and The Depository Trust
Company CDTC), New York, New York, initially will act as depository for the Bonds. DTC has
represented that it is a limited purpose trust company incorporated under the laws of the State of New York,
a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York
Unifonn Commercial Code, and a "clearing agency" registered under Section t 7 A of the federal Securities
Exchange Act of t 934, as amended, and the Issuer accepts, but in no way verifies, such representations. The
Initial Bond authorized by this Ordinance shall be delivered to and registered in the name of the Purchaser.
However, it is a condition of delivery and sale that the Purchaser, immediatcly after such delivery, shall cause
the Paying Agent/Registrar, as provided for in this Ordinance, to cancel said Initial Bond and deliver in
exchange therefor a substitute Bond for each maturity of such Initial Bond, with each such substitute Bond
to be registered in the name of CEDE & CO., the nominee of DTC, and it shall be the duty of the Paying
BRIZ: 0705.067\5-23.2005-Refunding-Ordinance
32
Agent/Registrar to take such action. It is expected that DTC will hold the Bonds on behalf of the Purchaser
andlor the DTC Participants, as defmed and described in the Official Statement referred to and approved in
Section 36 hereof (the "DTC participants"). So long as each Bond is registered in the name of CEDE & CO.,
the Paying Agent/Registrar shall treat and deal with DTC in all respects the same as if it were the actual and
beneficial owner thereof. It is expected that DTC will maintain a book entry system which will identify
beneficial ownership of the Bonds by DTC Participants in integral amounts of $5,000, with transfers of
ownership being effected on the records of DTC and the DTC Participants pursuant to rules and regulations
established by them, and that the substitute Bonds initially deposited with DTC shall be immobilized and not
be further exchanged for substitute Bonds except as hereinafter provided. The Issuer is not responsible or
liable for any functions of DTC, wiII not be responsible for paying any fees or charges with respect to its
services, will not be responsible or liable for maintaining, supervising, or reviewing the records of DTC or
the DTC Participants, or protecting any interests or rights of the beneficial owners of the Bonds. It shall be
the duty of the Purchaser and the DTC Participants to make all arrangements with DTC to establish this
book-entry system, the beneficial ownership of the Bonds, and the method of paying the fees and charges of
DTe. The Issuer does not represent, nor does it in any way covenant that the initial book-entry system
established with DTC will be maintained in the future. The Issuer reserves the right and option at any time
in the future, in its sole discretion, to terminate the DTC (CEDE & CO.) book-entry only registration
requirement described above, and to permit the Bonds to be registered in the name of any owner. If the Issuer
exercises its right and option to terminate such requirement, it shall give written notice of such termination
to the Paying Agent/Registrar and to DTC, and thereafter the Paying Agent/Registrar shall, upon presentation
and proper request. register any Bond in any name as provided for in this Ordinance. Notwithstanding the
initial establishment of the foregoing book-entry system with DTC, if for any reason any of the originally
delivered substitute Bonds is duly med with the Paying Agent/Registrar with proper request for transfer and
substitution, as provided for in this Ordinance, substitute Bonds will be duly delivered as provided in this
Ordinance, and there will be no assurance or representation that any book-entry system will be maintained
for such Bonds.
Section 40. COMPLIANCE WITH RULE t5c2-t2 (a) Annual Reports (i) The Issuer shall
provide annually to each NRMSIR and any SID, within six months after the end of each fiscal year ending
in or after 2005, financial information and operating data with respect to the Issuer of the general type
included in the fmal Official Statement authorized by Section 36 of this Ordinance, being the information
described in Exhibit A hereto, which Exhibit is attached to and incorporated in this Ordinance as if written
word for word herein. Any financial statements so to be provided shall be (I) prepared in accordance with
the accounting principles described in Exhibit A hereto, or such other accounting principles as the Issuer may
be required to employ from time to time pursuant to state law or regulation, and (2) audited, if the Issuer
commissions an audit of such statements and the audit is completed within the period during which they must
be provided. If the audit of such fmancial statements is not complete within such period, then the Issuer shall
provide unaudited financial statements by the required time and will provide audited fmancial statements for
the applicable fiscal year to each NRMSIR and any SID, when and if the audit report on such statements
become available.
(ii) If the Issuer changes its fiscal year, it will notify each NRMSIR and any SID of the change
(and of the date of the new fiscal year end) prior to the next date by which the Issuer otherwise would be
required to provide fmaneial information and operating data pursuant to this Section. The financial
information and operating data to be provided pursuant to this Section may be set forth in full in one or more
documents or may be included by specific reference to any document (including an offtcial statement or other
offering document, ifit is available from the MSRB) that theretofore has been provided to each NRMSIR and
any SID or filed with the SEe.
BRIZ: 070S.067\S-23-200S-Refunding-Ordinance
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(b) Material Event Notices. The Issuer shall notify any SID and either each NRMSIR or the
MSRB, in a timely manner, of any of the following events with respect to the Bonds, if such event is material
within the meaning of the federal securities laws:
1.
Principal and interest payment delinquencies;
2.
Non-payment related defaults;
3.
Unscheduled draws on debt service reserves reflecting financial difficulties:
4.
Unscheduled draws on credit enhancements reflecting financial difficulties;
5.
Substitution of credit or liquidity providers, or their failure to perform;
6.
Adverse tax opinions or events affecting the tax-exempt status of the Bonds;
7.
Modifications to rights of holders of the Bonds;
8.
Bond calls;
9.
Defeasanees;
10.
Release, substitution, or sale of property securing repayment of the Bonds; and
11.
Rating changes.
The Issuer shall notify any SID and either each NRMSIR or the MSRB, in a timely manner, of any failure
by the Issuer to provide financial information or operating data in accordance with subsection (a) of this
Section by the time required by such subsection.
(c) Limitations. Disclaimers. and Amendments. (i) The Issuer shall be obligated to observe and
perform the covenants specified in this Section for so long as, but only for so long as, the Issuer remains an
"obligated person" with respect to the Bonds within the meaning of the Rule, except that the Issuer in any
event will give the notice required by Subsection (b) hereof of any Bond calls and defeasance that cause the
Issuer to no longer be such an "obligated person".
(ii) The provisions of this Section are for the sole benefit of the registered owners 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 Issuer undertakes to provide only the
financial information, operating data, fmaneiaI 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 Issuer'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 Issuer 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.
(iii) UNDER NO CIRCUMSTANCES SHALL THE ISSUER, ITS OFFICERS, AGENTS AND
EMPLOYEES, BE LIABLE TO THE REGISTERED OWNER 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 ISSUER, WHETHER NEGLIGENT OR
BRIZ: 0705.067\5-23.2005-Rcfunding-Ordinancc
34
WlTHOUTFAUL TON ITS PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY
RIGHT AND REMEDY OF ANY SUCH PERSON, IN CONTRACTOR TORT, FORORON ACCOUNT
OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC
PERFORMANCE
(iv) No default by the Issuer in observing or perfonuing its obligations under this Section shall
comprise a breach of or default under the 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 Issuer
under federal and state securities laws.
(v) The provisions of this Section may be amended by the Issuer from time to time to adapt to
changed circumstances that arise from a change in legal requirements, a change in law, or a change in the
identity, nature, status, or type of operations of the Issuer, but only if (1) the provisions of this Section, as so
amended, would have penuitted 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 since such
offering as well as such changed circumstances and (2) either (a) the registered owners 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 Issuer (such as nationally recognized bond counsel) detenuined that such amendment
will not materially impair the interest of the registered owners and beneficial owners of the Bonds. If the
Issuer so amends the provisions of this Section, it shall include with any amended financial infonuation or
operating data next provided in accordance with subsection (a) of this Section an explanation, in narrative
fonu, of the reason for the amendment and of the impact of any change in the type of financial infonuation
or operating data so provided. The Issuer may also amend or repeal the provisions of this continuing
disclosure agreement if the SEC amends or repeals the applicable provision of the Rule or a court of final
jurisdiction enters judgment that such provisions of the Rule are invalid, but only if and to the extent that the
provisions of this sentence would not prevent an underwriter from lawfully purchasing or selling Bonds in
the primary offering of the Bonds.
(d)
tenus below:
Definitions. As used in this Section, the following tenus have the meanings ascribed to such
"MSRB" means the Municipal Securities Rulemaking Board.
"NRMSIR" means each person whom the SEC or its staff has determined to be a nationallv
recognized municipal securities information repository within the meaning of the Rule from time to time.'
"Rule" means SEC Rule 15c2-12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
"SID" means any person designated by the State of Texas or an authorized department, officer, or
agency thereof as, and detenuined by the SEC or its staff to be, a state infonuation depository within the
meaning of the Rule from time to time.
Section 4 1. PROTECTION OF PLEDGE. Chapter 1208, Government Code, applies to the issuance
of the Bonds and the pledge of the revenues granted by the Issuer under Section 9 of this Ordinance, and is
therefore valid, effective, and perfected. If Texas law is amended at any time while the Bonds are outstanding
and unpaid such that the pledge of the revenues granted by the Issuer under Section 9 of this Ordinance is to
be subject to the filing requirements of Chapter 9, Texas Business & Commerce Code, then in order to
BRIZ: 070S.067\S-23-200S.Refunding-Ordinance
35
preserve to the registered owners of the Bonds the perfection of the security interest in said pledge, the Issuer
agrees to take such measures as it detcnnines are reasonable and necessary under Texas law to comply with
thc applicable provisions of Chapter 9, Texas Business & Commerce Code and enable a filing to perfect the
security interest in said pledge to occur.
Section 42. FURTHER PROCEDURES. The Mayor of the Issuer, the City Secretary of the tssuer,
and all other officers, employees, and agents of the Issuer, and each of them, shall be and they arc hereby
expressly authorized, empowered, and directed from time to time and at any time to do and perfonn all such
acts and things and to execute, acknowledge, and deliver in the name and under the corporate seal and on
behalf of the Issuer all such instruments, whether or not herein mentioned, as may be necessary or desirable
in order to carry out the tenns and provisions of this Bond Ordinance, the Bonds, the sale of the Bonds, and
the Official Statement; and me Assistant City ManagerlFinance of the City shall cause the expenses of
issuance of the Bonds to be paid from the proceeds of sale of me Initial Bonds or from other lawfully
available funds of the Issuer. In case any officer whose signature shall appear on any Bond shall cease to be
such officer before me delivery of such Bond, such signature shaH nevertheless be valid and sufficient for
all purposes me same as if such oflicer had remained in office until such delivery.
Section 43. OPEN MEETINGS. The City Council has found and detennined that me meeting at
which this Ordinance is considered is open to me public and that notice thereof was given in accordance willi
the provisions of me Texas Open Meetings, Law, Tex. Gov't Code, Chapter 551, as amended.
Section 44. REPEALER. All indentures, ordinances or resolutions, or parts thereof, that arc in
conflict or inconsistent with any provision of this Ordinance arc hereby repealed to the extent of such conflict
and the provisions of this Ordinance shall be and remain controlling as to me matters contained herein.
Section 45. EFFECTIVE DATE. This Ordinance shaH become effective immediately upon its
passage and approval.
BRIZ: 070S.067\S-23-200S-Rofunding-Ordinance
36
(I)
at par.
(I)
(2)
Utility System Revenue Bonds, Taxable Series 2UOOB
Original
Dated Date
4/t5/2000
Original
Maturity
t2/1/2014")
Interest
Rate
7.80%
Principal
Amount
Outstanding
$ t,465.000
Principal
Amount
Refunded
$ J:46IO'oo
The 2014 maturity will be redeemed prior to original maturity on December I, 2010 at par.
The 2014 maturity isa telm bond with scheduled annual mandatory sinking fund redemprions on December 1 of each year
commencing December I. 2011.
Utility System Revenue Bonds, Taxable Series 20U2B
Original
Dated Date
411/2002
Original
Maturity
12/1/2013
1211/2017(1)
1 211/202 t (2)
Interest
Rate
6.50%
6.50%
6.75%
Principal
Amount
Outstanding
$ 705.000
3.370.000
4,475.000
Principal
Amount
Refunded
$ 7õ5:õOõ
3.370.000
4,475.000
The 2013. 2017 and 202t maturities will be redeemed prior to original maturity on December 1,2012
The 2017 maturity is a term bond with scheduled annual mandatory sinking fund redemptions on December I oreach year
commencing December I, 2014.
The 2021 maturity is a term bond with scheduled annual mandatory sinking fund redemptions on December I of each year
commencing December I. 2018.
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39
EXHIBIT A
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following infonnation is referred to in Section 40 of this Ordinance:
Annual Financial Statements and Operating Data
The fmancial infonnation and operating data with respect to the Issuer to be provided annually in
accordance with such Section are as specified (and included in the Appendix or under the tables of the
Official Statement referred to) betow:
Tables numbered t through 10, inclusive, under the captions "The Electric System", "The Water
System". "The Wastewater System", "Debt Infonnation" and "Financial Infonnation" in the Official
Statement.
Appendix C in the Official Statement.
Accounting Principles
The accounting principles referred to in such Section are the accounting principles described in the
notes to the fmancial statements referred to in the paragraph above.
--------------------
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A-I
EXHIBIT B
PROVISIONS RELATING TO BOND INSURANCE
1.
Additional Definitions.
(a) "Insurance Policy" means the insurance policy issued by the Bond Insurer guaranteeing the
scheduled payment of principal of and interest on the Bonds when due.
(b) "Insurer" means Financial Security Assurance Inc., a New York stock insurance company,
or any successor thereto or assignee thereof.
2. Apolicabilitv of Provisions. Notwithstanding anything to the contrary set forth in the Ordinance,
the provisions set forth in this Exhibit B shall control so long as the Bonds are insured by the Insurer and the
Insurer is not in default under the Insurance Policy.
3.
Consent of Insurer.
(a) The Insurer shall be deemed to be the sole holder of the Bonds insured by it for the purpose
of exercising any voting right or privilege or giving any consent or direction or taking any other action that
the holders of the Bonds insured by it are entitled to take pursuant to the Ordinance.
(b) No waiver, modification, amendment or supplement to the Ordinance or the Escrow
Agreement may become effective except upon obtaining the prior written consent of the Insurer.
(c) Copies of any modification or amendment to the Ordinance or Escrow Agreement shall be
provided to Standard & Poor's Ratings Services and Moody's Investors Service, Inc. at least 10 days prior
to the effective date thereof.
(d) The prior written consent of the Insurer shall be obtained prior to the deposit of any credit
instrument provided in lieu of a cash deposit into the Reserve Fund. Notwithstanding anything to the contrary
set forth in the Ordinance, amounts on deposit in the Reserve Fund shall be applied solely to the payment of
debt service on the Bonds.
4.
Pavment Pursuant to Insurance Policy.
(a) If, on the third business day prior to the related scheduled interest payment date or principal
payment date (a "Payment Date"), there is not on deposit with the Paying Agent/Registrar, after making all
transfers and deposits required under the Ordinance, moneys suff¡cient to pay the principal of and interest on
the Bonds due on such Payment Date, the Paying Agent/Registrar shall give notice to the Bond Insurer and
to its designated agent (if any) (the "Insurer's Fiscal Agent") by telephone orlelecopy of the amount of such
deftciency by 12:00 noon, New York City time, on such Business Day. If. on the second Business Day prior
to the related Payment Date, there continues to be a deficiency in the amount available to pay the principal
of and interest on the Bonds due on such Payment Date, the Paying Agent/Registrar shall make a claim under
the Insurance Policy and give notice to the Insurer and the Insurer's Fiscal Agent (if any) by telephone of the
amount of such deficiency, and the allocation of such deficiency between the amount required to pay interest
on the Bonds and the amount required to pay principal of the Bonds, confinned in writing to the Insurer and
the Insurer's Fiscal Agent by t2:00 noon, New York City time, on such second Business Day by filling in the
fonn of Notice of Claim and Certificate delivered with the Insurance Policy.
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B-1
(b) In the event the claim to be made is for a mandatory sinking fund redemption installment,
upon receipt of the moneys due, the Paying AgentlRegistrar shall authenticate and deliver to affected
Bondholders who surrender their Bonds a new Bond or Bonds in an aggregate principal amount equal to the
uuredeemed portion of the Bond surrendered. The Paying AgentlRegistrar shall designate any portion of
payment of principal on Bonds paid by the Insurer, whether by vinue of mandatory sinking fund redemption,
maturity or other advancement of maturity, on its books as a reduction in the principal amount of Bonds
registered to the then current Bondholder, whether DTC or its nominee or otherwise, and shall issue a
replacement Bond to the Insurer, registered in the name of Financial Security Assurance Inc., in a principal
amount equal to the amount of principal so paid (without regard to authorized denominations); provided that
the Paying Agent/Registrar's failure to so designate any payment or issue any replacement Bond shall have
no effect on the amount of principal or interest payable by the Issuer on any Bond or the subrogation rights
of the Insurer.
(c) The Paying AgentlRegistrar shall keep a complete and accurate record of all funds deposited
by the Insurer into the Policy Payments Account and the allocation of such funds to payment of interest on
and principal paid in respect of any Bond. The Insurer shall have the right to inspect such records at
reasonable times upon reasonable notice to the Paying Agent/Registrar.
(d) Upon payment of a claim under the Insurance Policy the Paying Agent/Registrar shall
establish a separate special purpose trust account for the benefit of Bondholders referred to herein as the
"Policy Payments Account" and over which the Paying Agent/Registrar shall have exclusive control and sole
right of withdrawal. The Paying Agent/Registrar shall receive any amount paid under the Insurance Policy
in trust on behalf of Bondholders and shall deposit any such amount in the Policy Payments Account and
distribute such amount only for purposes of making the payments for which a claim was made. Such amounts
shall be disbursed by the Paying Agent/Registrar to Bondholders in the same manner as principal and interest
payments are to be made with respect to the Bonds under the sections hereof regarding payment of Bonds.
¡ shall not be necessary for such payments to be made by checks or wire transfers separate from the check
or wire transfer used to pay debt service with other funds available to make such payments.
(e) Funds held in the Policy Payments Account shall not be invested by the Paying
Agent/Registrar and may not be applied to satisfy any costs, expenses or liabilities of the Paying
Agent/Registrar.
(I) Any funds remaining in the Policy Payments Account following a Bond payment date shall
be promptly remined to the Insurer.
(g) Amounts paid by the Insurer under the Insurance Policy shall not be deemed paid for
purposes of the Ordinance and shall remain Outstanding and continue to be due and owing until paid by the
Issuer in accordance with the Ordinance. The Ordinance shall not be discharged unless all amounts due or
to become due thereunder have been paid in full or duly provided for.
5.
Rights of Insurer.
(a) The rights granted to the Insurer under the Ordinance to request. consent to or direct any
action are rights granted to the Insurer in consideration of its issuance of the Insurance Policy. Any exercise
by the Insurerofsuch rights is merely an exercise of the Insurer's contractual rights and shall not be construed
or deemed to be taken for the benefit or on behalf of the Bondholders nor does such action evidence any
position of the Insurer, positive or negative, as to whether Bondholder consent is required in addition to
consent of the Insurer.
BRtZ: 070S.067IS-23-200S-Refunding-Ordinance
B-2
(b) To the extent that this Ordinance confers upon or gives or grants to the Insurer any right,
remedy or claim under or by reason of this Ordinance, the Insurer is hereby recognized as being a third-party
beneficiary hereunder and may enforce any such right remedy or claim conferred, given or granted hereunder.
(c) The Insurer shall, to the extent it makes any payment of principal of or interest on the Bonds,
become subrogated to the rights of the recipients of such payments in accordance with the tenns of the
Insurance Policy. The obligations to the Insurer shall survive discharge or tennination of the Ordinance.
(d) The Insurer shall be entitled to pay principal or interest on the Bonds that shall become Due
for Payment but shall be unpaid by reason of Nonpayment by the Issuer (as such tenns are defined in the
Insurance Policy) whether or not the Insurer has received a Notice of Nonpayment (as such terms are defmed
in the Insurance Policy) or a claim upon the Insurance Policy.
(e) To the extent pennined by law, the Issuer shall payor reimburse the Insurer any and all
charges, fees, costs and expenses which the Insurer may reasonably payor incur in connection with (i) the
administration, enforcement, defense or preservation of any rights or security in the Ordinance or any
document related thereto; (ii) the pursuit of any remedies under the Ordinance or any document related
thereto or otherwise afforded by law or equity, (iii) any amendment, waiver or other action with respect to,
or related to, the Ordinance or any document related thereto whether or not executed or completed, (iv) the
violation by the City of any law, rule or regulation, or any judgment, or decree applicable to it or (v) any
litigation or other dispute in connection with the Ordinance or any other document related thereto or the
transactions contemplated thereby, other than amounts resulting from negligence or willful misconduct on
the part of the Insurer or from the failure of the Insurer to honor its obligations under the Insurance Policy.
The Insurer reserves the right to charge a reasonable fee as a condition to executing any amendment, waiver
or consent proposed in respect of the Ordinance or any document related thereto. The obligation of the Issuer
to make the payments and reimbursements described in this paragraph shall be subject to annual appropriation
by the Issuer.
6. Infonnation to be Provided to Insurer' Notices. The Insurer shall be provided with the following
infonnation:
a.
Annual audited financial statements within ISO days after the end of the Issuer's fiscal year
and the Issuer's annual budget within 30 days after the approval thereof;
b.
Notice of any draw upon the Reserve Fund within two Business Days after knowledge
thereof other than (i) withdrawals of amounts in excess of the Required Reserve and (ii)
withdrawals in connection with a refunding of Bonds;
e.
Notice of any default known to the Issuer within five Business Days after knowledge thereof;
d.
Prior notice of the advance refunding or redemption of any of the Bonds, including the
principal amount, maturities and CUSIP numbers thereof;
e.
Notice of the resignation or removal of the Paying Agent/Registrar and the appoinnnent of,
and acceptance of duties by, any successor thereto;
f
Notice of the commencement of any proceeding by or against the Issuer commenced under
the United States Bankruptcy Code or any other applicable bankruptcy, insolvency,
receivership, rehabilitation or similar law (an "Insolvency Proceeding");
BRIZ: 070S.067IS.23-200S.Refunding-Ordinance
B-3
g.
h.
j
6.
Notice of the making of any claim in connection with any Insolvency Proceeding seeking
the avoidance as a preferential transfer of any payment of principal of, or interest on, the
Bonds;
A full original transcript of all proceedings relating to the execution of any amendment or
supplement to the Ordinance or the Escrow Agreement; and
All repons, notices and correspondence to be delivered under the terms of the Ordinance.
The notice address of the Insurer is: Financial Security Assurance Inc., 350 Park Avenue,
New York, New York 10022-6022, Attention: Managing Director -- Surveillance; Re: Policy
No._, Telephone: (212) 826-0100; Telecopier: (212) 339-3556. In each case in which
notice or other communication refers to an Event of Default, then a copy of such notice or
other communication shall also be sent to the attention of General Counsel and shall be
marked to indicate "URGENT MATERIAL ENCLOSED."
Defeasance of Bonds
a.
Unless otherwise approved by the Insurer, only cash and Government Obligations described
in Section 8(K) of the Ordinance (provided that any Government Obligations must be rated
AAA and Aaa by S&P and Moody's, respectively) shall be authorized to be used to effect
defeasance of the Bonds.
b.
For advance refundings, the Issuer shall cause to be delivered a repon ofan independent firm
of nationally recognized eenified public accountants, or such other accountant as shall be
acceptable to the Insurer, verifying the sufficiency of the escrow established to pay the
Bonds in full on the maturity or redemption date. For current refundings, the City shall
cause to be provided a repon of an independent firm of nationally recognized cenified public
accountants, a cenificate of sufficiency from the fmancial advisor to the City, a cenificatc
from the paying agent for the Bonds or such other documentation acceptable to the Insurer
verifying the sufficiency of the amounts deposited to pay the Bonds in full on the maturity
or redemption date
c.
The City shall provide the Issuer with an opinion of nationally recognized bond counsel
acceptable to in form and substance the Issuer and the Insurer to the effect that the Bonds are
no longer outstanding.
d.
Any Escrow Agreement shall be in form and substance acceptable to the Insurer.
e.
The Insurer shat! be provided with final drafts of the above-referenced documcntation not
less than five business days prior to the funding of the escrow.
ERtZ: 0705.067\5-23-2005-Refunding-Ordinance
B-4
EXHIBIT C
NOTICE OF PRIOR REDEMPTION
THE CITY OF DENTON. TEXAS
NOTICE IS HEREBY GIVEN tlut the City orDenton. Tm' h" "ned fomd<mption the ou"tanding Bund. ofthc City d"crihed"
follow",
CITY OF DENTON (TEXAS) UTILITY SYSTE:>Æ REVENUE BONDS. SERIES 1998. doted Mueh 15. 1998.
"heduIod to motu" on Doo<mb" I. 20Il th,"u8h Doo<mb" I, 2017 in tho pLincipol ","ount of52.495.000 (ond being on of
the ou"tanding bond> of..id "ri" "beduIod!D motu" on ond ofie< Doo<mh" I. 20 II).
con dote, Dc",m b" I. 20OS, "de<moble ot 0 "demption pri" of pnplœ ",,"cd int""tot the p,ineipol wpo""
offi", of JPMo,g'" Ch"e Bonk. Notionol Anociotion. only upon p".",tation by the "gi.te"d own".
CITY OF DENTON (TEXAS) lJIlLITY SYSTEM REVENUE REFUNDING BONDS. SERIES 1998A. datod July
15.1998, "heduIod to mot",e De"mb" I. 2011 IMough Dooemb" 1.2022. o""goting 517.130.000 (ond being on of the
ou"tanding bond, of..id "ri" "heduled to moMe on Dooemb" I. 20 II IMough Dooemb" 1.2022).
Con dote, Dc"m b" 1. 20OS, "doomoble 0" "demption pri" of pn pill' "c,"ed iub""t ot the principol c"po""
offiw of JPMo"on Ch"e Bouk. N"ionol A.",eiotion. only upon p'e"ntation by the "gi.""d own".
CITY OF DENTON (TEXAS) lJIlLITY SYSTEM REVENUE BONDS, SERIES 2000A. dated April 15, 2000.
"heduled !D motu" on De"mb" 1,2013 th<ough Dooemb" I. 2019. o,,"gotin, 524.560.000 (ond bcin, on of the
ou"tanding bond. ohoid "ri" "heduled 1o mot",e on ",d ill" D"emb" I. 2013)
con do", Do",m b" 1.2010, "doomoble ot 0 "domption pri"of pnplœ ",,"od in"",t ot the p,incipol c°'P°""
offiw of JP:>Æ"g'" Cho" Bonk. Notionol "',ociotion only upon p""nbtion by the ",i""od owne"
CITY OF DENTON (TEXAS) UTILITY SYSTEM REVENUE BONDS, TAXABLE SERIES 2000B. da"d
Ap,iI15, 2000, "hodulod to mot",e on Dmmb" 1,2014, og"o,"ing 51.465.000 (ond being on of tho ou"tandin, bond. of
..id ."i" "heduIod!D motu" on Dooemb" 1.2014).
Con "'to> Dooem b" 1.2010-. "doomoble 0" "demption pri"of pnplœ ",,"cd in"",t ot theprineipol ""P°"te
off"" of JPMo,g'" Cb"e Bonk. Notionol "'.ooi"ion only upon p""nbtion by the ",i.t"ed own".
CITY OF DENTON (TEXAS) UTILITY SYSTEM REVENUE BONDS. TAXABLE SERIES 2002B. do"dAprill.
2002. "heduled !D mot",e on Dmmb" 1. 20 13. on Doo<mb" 1.2017 ond on Doocmb" 1.2021. o.",gotin, 58.550.000 (ond
being on of the ou"bndingbond, of..id"ri" "hedulodtomot",e on ond oft"D"<mb" 1.2013).
Condo'" De"mb" I.20I2;"doomoblco",odemptionpri" ofpnplœ o",ued in""""theprincipol ""P..o"
offi,,' of JPMo,gon Ch..e Bonk. Notionol A"ooiolion only upon p",entation by the "gi,""d owne"
If money. ,ufficient f.. the poyment of 'Doh "domption pri" 0" held by °' on beholf of the ,"p"tivo poying ogent. the d"cribed Bond, .hon
booome due ond poyoble on the "domption "'" ,pooifiod. ond the inte",t th"onn ,hoB ,,0,,!D o",ue f<om ond oft" the "demption do".
Und" thcp,"vi,ion. of the Job, ond G<owth T.x RoIiofRooonciliotion Aotof2003 (the "Act"), po,ingogen" moking po,men" ofin"",t
oLp,incipol on municipol """iti" moy be obligo"d to withholdo 28% tax f<om "mittan" to individuol. who hm foilcd to fumi,h tho poying ogent
with 0 v,¡id taxpoy" identifi"tion nonob". Owneß of tho Bond> who wi.h to >void tho imp"ilion of the t" ,hould ,ubmit "rtified taxpoy"
idcntifi"tion numb", when p""nting the Bond. f.. poymenl
NOTICE IS FURTHER GIVEN thot on Bond> d""ibed obove .hould be ,ubmil"d to tho following oddL'" ,
JPMOLgon Ch'" Bonk. Notiono' Anooiotinn
(,"o"n" to Bonk One, Tm'. N.A.)
2001 Bryon S"oot. lOth FloOL
Don.., Tox" 75201
Attn, B"d Houn,,1
Do"d,
. 2005
By, JP:>ÆoLgon Ch", Bonk, Notion,l Anodotion
BRIZ, 070S.067IS-23-200S-Refunding.0,dinance
C-l