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HomeMy WebLinkAbout1993-O-20 - Issuance of BondsORDINANCE NO. 1993-20 ORDINANCE AUTHORIZING THE ISSUANCE OF UTILITY SYSTEM REVENUE BONDS THE STATE OF TEXAS COUNTY OF ERATH CITY OF STEPHENVILLE WHEREAS, there are presently outstanding bonds issued by the City of Stephenville (the "City") which are secured by a pledge of, and first lien on, the net revenues of its Utility System, to wit: City of Stephenville, Texas Waterworks and Sewer System Refunding and Improvement Revenue Bonds, Series 1985 (the 111985 Bonds") and City of Stephenville, Texas Utility System Refunding Revenue Bonds, Series 1988 (the 111988 Bonds"); and WHEREAS, there are presently outstanding bonds issued by the City which are secured by a pledge of, and subordinate lien on, the net revenues of its Utility System, to wit: City of Stephenville, Texas Utility System Subordinate Lien Revenue Bonds, Series 1993-A (the "Refunded Bonds"), in the aggregate principal amount of $1,535,000; and WHEREAS, the City desires to authorize and issue its Utility System Revenue Bonds for the purpose of making improvements and extensions to its Wastewater System and refunding all of the Refunded Bonds; and WHEREAS, Article 717k, V.A.T.C.S. ("Article 717k"), authorizes the City to issue refunding bonds and to deposit the proceeds from the sale thereof, and any other available funds or resources, directly with a place of payment (paying agent) for the Refunded Bonds, and such deposit, if made before such payment dates, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the Refunded Bonds; and WHEREAS, the Texas Water Development Board, as the registered owner of all of the Refunded Bonds, has agreed to present the Refunded Bonds for redemption and payment without further notice; and WHEREAS, the City Council reserved the right in the ordinances authorizing the issuance of the 1985 Bonds and 1988 Bonds to issue bonds for any lawful purpose, which bonds may be on a parity with the 1985 Bonds and 1988 Bonds; and WHEREAS, NationsBank of Texas, N.A., Austin, Texas, is the paying agent for the Refunded Bonds; and WHEREAS, the Refunded Bonds are scheduled to mature, or are subject to redemption prior to maturity, not more than 20 years from the date of the bonds hereinafter authorized; and WHEREAS, Article 717k provides that the Issuer may issue refunding bonds in combination with bonds for making the improvements and extensions to the Issuer's Wastewater System; and WHEREAS, the bonds hereinafter authorized to be issued shall be on a parity with the 1985 Bonds and 1988 Bonds; and WHEREAS, the bonds hereafter authorized are being issued and delivered pursuant to Articles 1111 through 1118, et seq., 717k-6 and 717k, V.A.T.C.S. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF STEPHENVILLE, TEXAS: SECTION 1. Recitals, Authorization, Designation, Principal Amount and Purpose of the Bonds. The recitals set forth in the preamble hereof are incorporated herein and shall have the same force and effect as if set forth in this Section. Revenue bonds of the City shall be and are hereby authorized to be issued in the aggregate principal amount of $7,680,000, to be designated and bear the title "City of Stephenville, Texas, Utility System Revenue Bonds, Series 1993" (hereinafter referred to as the "Bonds"), for the purpose of refunding certain outstanding obligations of the City (identified in the preamble hereof as the "Refunded Obligations") and making improvements and extensions to the City's Wastewater System. SECTION 2. Authorized Denominations and Maturities of Bonds. The Bonds shall be issued in fully registered form only, shall be dated , 1993 (the "Bond Date") and shall be in denominations of $5,000 or any integral multiple thereof, and shall become due and payable on June 1 in each of the years and in principal amounts (the "Stated Maturities") and bear interest at the rates per annum in accordance with the following schedule: Year of Principal Interest Stated Maturity Amount($) Rate (%) The Bonds shall bear interest on the unpaid principal amounts from their date of delivery to the initial purchaser 1 of the Bonds at the rates per annum shown above in this Section. Interest on the Bonds shall be payable on June 1 and December 1 in each year, commencing December 1, 1993. SECTION 3. Terms of Payment; Paving Agent/Registrar. The principal of, premium, if any, and the interest on the Bonds, due and payable by reason of maturity, redemption or otherwise, shall be payable only to the registered owners or holders of the Bonds (hereinafter called the "Holders") appearing on the registration and transfer books (the "Registration Books") maintained by the Paying Agent/Registrar (hereinafter defined) and the payment thereof shall be in any coin or currency of the United States of America, which at the time of payment is legal tender for the payment of public and private debts, and shall be without exchange or collection charges to the Holders. The selection and appointment of Texas to serve as Paying Agent/Registrar for the Bonds (the "Paying Agent/Registrar") is hereby approved and confirmed. The execution by the officials of the City of the "Paying Agent/Registrar Agreement" in substantially the form attached as Exhibit A is hereby authorized. The City covenants to maintain and provide a Paying Agent/Registrar at all times until the Bonds are paid and discharged, and any successor Paying Agent/Registrar shall be a commercial bank, trust company or other financial institution organized under the laws of the United States or a state thereof, and qualified and authorized to serve in such capacity and perform the duties and services of Paying Agent/Registrar. Upon any change in the Paying Agent/Registrar for the Bonds, the City agrees to promptly cause a written notice thereof to be sent to each registered owner of the Bonds by United States Mail, first class postage prepaid, which notice shall also give the address of the new Paying Agent/Registrar. Principal of and premium, if any, on the Bonds shall be payable at the Stated Maturity or the redemption thereof, only upon presentation and surrender of the Bonds to the Paying Agent/Registrar at its principal office. Interest on the Bonds shall be paid to the Holder whose name appears on the Registration Books at the close of business on the 15th day of the month next preceding each interest payment date (the "Record Date") and shall be paid by the Paying Agent/Registrar (i) by check sent United States Mail, first class postage prepaid, to the address of the registered owner recorded on the Registration Books or (ii) by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder. If the date for the payment of the principal of or interest 3 on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day on which banking institutions in the City where the Paying Agent/Registrar is located are authorized by law or executive order to close, then the date for such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal holiday, or day 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. SECTION 4. Redemption. (a) Optional Redemption. The Bonds having Stated Maturities on and after June 1, , shall be subject to redemption prior to maturity, at the option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar), on June 1, 1998 or on any interest payment date thereafter, at the redemption price of par plus accrued interest to the date of redemption. (b) Exercise of Redemption Option. At least forty- five (45) days prior to a redemption date for the Bonds (unless a shorter notification period shall be satisfactory to the Paying Agent/Registrar), the City shall notify the Paying Agent/Registrar of the decision to redeem Bonds, the principal amount of each Stated Maturity to be redeemed, and the date of the redemption therefor. The decision of the City to exercise the right to redeem Bonds shall be entered in the minutes of the governing body of the City. (c) Selection of Bonds for Redemption. If less than all Outstanding Bonds of the same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar shall treat such Bonds as representing the number of Bonds Outstanding which is obtained by dividing the principal amount of such Bonds by $5,000 and shall select the Bonds to be redeemed within such Stated Maturity by lot. (d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date for the Bonds, (i) a notice of redemption shall be sent by United States Mail, first class postage prepaid, in the name of the City and at the City's expense, to each Holder of a Bond to be redeemed in whole or in part at the address of the Holder appearing on the Registration Books at the close of business on the business day next preceding the date of mailing such notice and to major securities depositories, national bond rating agencies and bond information services, and (ii) a notice of such redemption shall be published one (1) time in a financial journal or publication of general circulation in the United States of America carrying as a regular feature notices of municipal bonds called for redemption; provided, however, that the failure to send, mail or receive such notice described in (i) above, or any defect therein or in 4 the sending or mailing thereof, shall not affect the validity or effectiveness of the proceedings for the !! redemption of any Bond, and the publication of notice as described in (ii) above shall be the only notice actually required in connection with or as a prerequisite to the redemption of any Bonds. All notices of redemption shall (i) specify the date of redemption for the Bonds, (ii) identify the Bonds to be redeemed and, in the case of a portion of the principal amount to be redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price, (iv) state that the Bonds, or the portion of the principal amount thereof to be redeemed, shall become due and payable on the redemption date specified, and the interest thereon, or on the portion of the principal amount thereof to be redeemed, shall cease to accrue from and after the redemption date, and (v) specify that payment of the redemption price for the Bonds, or the principal amount thereof to be redeemed, shall be made at the principal office of the Paying Agent/Registrar only upon presentation and surrender thereof by the Holder. If a Bond is subject by its terms to prior redemption and has been called for redemption and notice of redemption thereof has been duly given or waived as provided in Sec- tion 35, such Bond (or the principal amount thereof to be redeemed) shall become due and payable, and interest thereon f shall cease to accrue from and after the redemption date therefor; provided moneys sufficient for the payment of such Bonds (or of the principal amount thereof to be redeemed) at the then applicable redemption price are held for the purpose of such payment by the Paying Agent/Registrar. SECTION 5. Registration; Transfer and Exchange of Bonds. Registration Books relating to the registration, payment, and transfer or exchange of the Bonds shall at all times be kept and maintained by the City at the principal office of the Paying Agent/Registrar, as provided herein and in accordance with the provisions of the Paying Agent/Registrar Agreement and such rules and regulations as the City and the Paying Agent/Registrar may prescribe. The Paying Agent/Registrar shall obtain, record, and maintain in the Registration Books the name and address of each and every Holder or, if appropriate, the nominee thereof. Any Bond may, in accordance with its terms and the terms hereof, be transferred or exchanged for Bonds of other authorized denominations by the Holder, in person or by his duly authorized agent, upon surrender of such Bond to the Paying Agent/Registrar for cancellation, accompanied by a written instrument of transfer or request for exchange duly executed by the Holder or by his duly authorized agent, in form satisfactory to the Paying Agent/Registrar. Upon surrender for transfer of any Bond at the princi- pal office of the Paying Agent/Registrar, the Paying 5 A Agent/Registrar shall register and deliver, in the name of jj the designated transferee or transferees, one or more new Bonds of authorized denominations and having the same Stated Maturity and of a like aggregate principal amount as the Bond or Bonds surrendered for transfer. At the option of the Holder, Bonds may be exchanged for other Bonds of authorized denominations and having the same Stated Maturity, bearing the same rate of interest and of like aggregate principal amount as the Bonds surrendered for exchange, upon surrender of the Bonds to be exchanged at the principal office of the Paying Agent/Registrar. Whenever any Bonds are surrendered for exchange, the Paying Agent/Registrar shall register and deliver new Bonds to the Holder requesting the exchange. All Bonds issued in any transfer or exchange of Bonds shall be delivered to the Holders at the principal office of the Paying Agent/Registrar, or sent by United States Mail, first class postage prepaid, to the Holder, and, upon the delivery thereof, the same shall be valid obligations of the City, evidencing the same obligation to pay, and entitled to the same benefits under this Ordinance, as the Bonds surren- dered in such transfer or exchange. All transfers or exchanges of Bonds pursuant to this Section shall be made without expense or service charge to any Holder, except as otherwise herein provided, and except that the Paying Agent/Registrar shall require payment by any Holder requesting such transfer or exchange of any tax or other governmental charges required to be paid with respect to such transfer or exchange. Bonds cancelled by reason of an exchange or transfer pursuant to the provisions hereof are hereby defined to be "Predecessor Bonds", evidencing all or a portion, as the case may be, of the same obligation to pay evidenced by the new Bond or Bonds registered and delivered in the exchange or transfer therefor. Additionally, the term "Predecessor Bonds" shall include any mutilated, lost, destroyed, or stolen Bond for which a replacement Bond has been issued, registered and delivered in lieu thereof pursuant to Sec- tion 28 hereof and such new replacement Bond shall be deemed to evidence the same obligation as the mutilated, lost, destroyed, or stolen Bond. Neither the City nor the Paying Agent/Registrar shall be required to transfer or exchange any Bond called for redemption, in whole or in part, within 45 days of the date fixed for redemption of such Bond; provided, however, such limitation on transferability shall not be applicable to an exchange by the Holder of an unredeemed balance of a Bond called for redemption in part. 10 SECTION 6. Execution; Registration. The Bonds shall be executed on behalf of the City by the Mayor under its seal reproduced or impressed thereon and countersigned by the City Secretary. The signature of said officers on the Bonds may be manual or facsimile. Bonds bearing the manual or facsimile signatures of individuals who are or were the proper officers of the City on the Bond Date shall be deemed to be duly executed on behalf of the City, notwithstanding that such individuals or either of them shall cease to hold such offices at the time of delivery of the Bonds to the initial purchaser(s) and with respect to Bonds delivered in subsequent exchanges and transfers, all as authorized and provided in Article 717k-6, V.A.T.C.S., as amended. No Bond shall be entitled to any right or benefit under this Ordinance, or be valid or obligatory for any purpose, unless there appears on such Bond either a certificate of registration, manually executed by the Comptroller of Public Accounts of the State of Texas or his duly authorized agent, or a certificate of registration, manually executed by an authorized officer, employee or representative of the Paying Agent/Registrar, substantially in the form provided in Section 7, and either such certificate upon any Bond duly signed shall be conclusive evidence, and the only evidence, that such Bond has been duly certified, registered and delivered. SECTION 7. Form of Bond. The Bonds, the Registration Certificate of the Comptroller of Public Accounts of the State of Texas, the Paying Agent/Registrar's Registration Certificate, and the form of Assignment to be printed on each of the Bonds, shall be substantially in the forms set forth in this Section with such appropriate insertions, omissions, substitutions, and other variations as are permitted or required by this Ordinance and may have such letters, numbers, or other marks of identification (includ- ing identifying numbers and letters of the Committee on Uniform Securities Identification Procedures of the American Bankers Association) and such legends and endorsements (including any reproduction of an opinion of counsel) thereon as may, consistently herewith, be established by the City or determined by the officers executing such Bonds as evidenced by their execution. Any portion of the text of any Bonds may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Bond. The definitive Bonds shall be printed, lithographed, or engraved or produced in any other similar manner, all as determined by the officers executing such Bonds as evidenced by their execution, but Bonds submitted to the Attorney General of Texas may be typewritten or photocopied or otherwise reproduced. NO. FORM OF BOND UNITED STATES OF AMERICA STATE OF TEXAS COUNTY OF ERATH CITY OF STEPHENVILLE, TEXAS UTILITY SYSTEM REVENUE BOND SERIES 1993 DATE OF STATED ISSUANCE INTEREST RATE MATURITY CUSIP NO. REGISTERED OWNER: PRINCIPAL AMOUNT: The City of Stephenville (hereinafter referred to as the "City"), a body corporate and political subdivision in the County of Erath, State of Texas, for value received, hereby promises to pay to the order of the registered owner named above, or the registered assigns thereof (the "registered owner"), solely from the revenues hereinafter identified, on the Stated Maturity date specified above, the Principal Amount stated above (or so much thereof as shall not have been paid upon prior redemption) and to pay interest on the unpaid Principal Amount hereof from the Date of Issuance at the per annum rate of interest specified above; such interest being payable on June 1 and December 1 in each year, commencing December 1, 1993. Principal of this Bond is payable at its Stated Maturity or redemption prior to its Stated Maturity to the registered owner hereof, upon presentation and surrender, at the principal office of the Paying Agent/Registrar executing the registration certificate appearing hereon, or its successor. Interest is payable to the registered owner of this Bond (or one or more Predecessor Bonds, as defined in the Ordinance hereinafter referenced) whose name appears on the "Registration Books" maintained by the Paying Agent/Registrar at the close of business on the "Record Date", which is the 15th day of the month next preceding each interest payment date. All payments of principal of, premium, if any, and interest on this Bond shall be in any coin or currency of the United States of America which at the time of payment if legal tender for the payment of public and private debts and interest shall be paid by the Paying Agent/Registrar by check sent United States Mail, first class postage prepaid, to the address of the registered owner recorded in the Registration Books or by such other method, acceptable to H the Paying Agent/Registrar, requested by, and at the risk and expense of, the registered owner. *This Bond is one of a series of bonds issued in the aggregate principal amount of $7,680,000 (herein referred to as the "Bonds") for the purpose of refunding certain outstanding obligations of the City (identified in the Ordinance) and making improvements and extensions to the City's Wastewater System, under and in strict conformity with the Constitution and laws of the State of Texas, including Article 717k, as amended, V.A.T.C.S., and pursuant to an ordinance adopted by the governing body of the City (herein referred to as the "Ordinance"). *The Bonds maturing on and after June 1, , may be redeemed prior to their Stated Maturities, at the option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar), on June 1, 1998, or on any interest payment date thereafter, at the redemption price of par, together with accrued interest to the date of redemption. *Not less than 30 days prior to the redemption date, (i) written notice of redemption shall be sent by United States Mail, first class postage prepaid, to registered owners of the Bonds to be redeemed, and to major securities depositories, national bond rating agencies and bond information services, and subject to the terms and provisions relating thereto contained in the Ordinance and (ii) a notice of such redemption shall be published one (1) time in a financial journal or publication of general circulation in the United States of America carrying as a regular feature notices of municipal bonds called for redemption; provided, however, that the failure to send, mail or receive such notice described in (i) above, 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, and the publication of notice as described in (ii) above shall be the only notice actually required in connection with or as a prerequisite to the redemption of any Bonds. If this Bond (or any portion of the principal sum hereof) shall have been duly called for redemption and notice of such redemption duly given, then upon such redemption date this Bond (or the portion of the principal sum hereof to be redeemed) shall become due and payable, and interest thereon shall cease to accrue from and after the redemption date therefor; provided moneys for the payment of the redemption price and the interest on the principal amount to be redeemed to the date of redemption are held for the purpose of such payment by the Paying Agent/Registrar. 9 *In the event of a partial redemption of the principal ( amount of this Bond, payment of the redemption price of such E principal amount shall be made to the registered owner only upon presentation and surrender of this Bond to the Paying Agent/Registrar at its principal office, and there shall be issued, without charge therefor, to the registered owner hereof, a new Bond or Bonds of like maturity and interest rate in any authorized denominations provided in the Ordinance for the then unredeemed balance of the principal sum hereof. If this Bond is called for redemption, in whole or in part, the City and the Paying Agent/Registrar shall not be required to transfer this Bond to an assignee of the registered owner within 45 days of the redemption date therefor; provided, however, such limitation on transfer- ability shall not be applicable to an exchange by the registered owner of the unredeemed balance hereof in the event of its redemption in part. *The Bonds, together with other outstanding revenue bonds of the City, are special obligations of the City, payable solely from and equally and ratably secured by a first lien on and pledge of the Net Revenues (as defined in the Ordinance) of the City's Utility System (the "System"). The Bonds do not constitute a legal or equitable pledge, charge, lien or encumbrance upon any property of the City or the System, except with respect to the Net Revenues. The holder hereof shall never have the right to demand payment of this obligation out of any funds raised or to be raised by taxation. *Subject to satisfying the terms and conditions pre- scribed therefor, the City has reserved the right to issue additional revenue obligations payable from, and together with the Bonds equally and ratably secured by a parity lien on and pledge of, the Net Revenues of the System. *Reference is hereby made to the Ordinance, a copy of which is on file in the principal office of the Paying Agent/Registrar, and to all of the provisions of which the owner or holder of this Bond by the acceptance hereof hereby assents, for definition of terms; the description of and the nature and extent of the security for the payment of the Bonds; the properties constituting the System; the Net Revenues pledged to the payment of the principal of and interest on the Bonds; the nature and extent and manner of enforcement of the lien and pledge securing the payment of the Bonds; the terms and conditions for the issuance of additional revenue obligations; the terms and conditions relating to the transfer or exchange of this Bond; the conditions upon which the Ordinance may be amended or supplemented with or without the consent of the Holders; the rights, duties, -and obligations of the City and the Paying Agent/Registrar; the terms and provisions upon which the liens, pledges, charges and covenants made therein may be 10 discharged at or prior to the maturity or redemption of this Bond, and this Bond shall be deemed to be no longer Outstanding thereunder; and for other terms and provisions contained therein. Capitalized terms used herein have the same meanings assigned in the Ordinance. *The Bonds, subject to certain limitations contained in the Ordinance, may be transferred on the Registration Books only upon its presentation and surrender at the principal office of the Paying Agent/Registrar, .with the 'Assignment hereon duly endorsed by, or accompanied by a written instru- ment of transfer in form satisfactory to the Paying Agent/Registrar duly executed by, the registered owner hereof, or his duly authorized agent. When a transfer on the Registration Books occurs, one or more new fully regis- tered Bonds of the same Stated Maturity, of authorized denominations, bearing the same rate of interest, and of the same aggregate principal amount will be issued by the Paying Agent/Registrar to the designated transferee or transferees. *The City and the Paying Agent/Registrar, and any agent of either, may treat the registered owner hereof whose name appears on the Registration Books (i) on the Record Date as the owner entitled to payment of interest hereon, (ii) on the date of surrender of this Bond as the owner entitled to payment of principal hereof at its Stated Maturity or its redemption, in whole or in part, and (iii) on any other date as the owner for all other purposes, and neither the City nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. It is hereby certified, recited, represented and covenanted that the City is a body corporate and political subdivision duly organized and legally existing under and by virtue of the Constitution and laws of the State of Texas; that the issuance of the Bonds is duly authorized by law; that all acts, conditions and things required to exist and be done precedent to and in the issuance of the Bonds to render the same lawful and valid special obligations of the City have been properly done, have happened and have been performed in regular and due time, form and manner as required by the Constitution and laws of the State of Texas, and the Ordinance; that the Bonds do not exceed any constitutional or statutory limitation; and that due provision has been made for the payment of the principal of and interest on the Bonds by a pledge of the Net Revenues of the System as aforestated. In case any provision in this Bond or any application thereof shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions and applications shall not in any 11 way be affected or impaired thereby. The terms and provisions of this Bond and the Ordinance shall be construed in accordance with and shall be governed by the laws of the State of Texas. IN WITNESS WHEREOF, the City has caused this Bond to be signed with the manual or facsimile signature of the Mayor of the City and countersigned with the manual or facsimile signature of the City Secretary of the City, and has caused the official seal of the City to be duly impressed, or placed in facsimile, on this Bond. CITY OF STEPHENVILLE, TEXAS Mayor COUNTERSIGNED: City Secretary (SEAL) 12 **Form of Registration Certificate of Comptroller of Public Accounts to Appear on Initial Bond(s) only REGISTRATION CERTIFICATE OF COMPTROLLER OF PUBLIC ACCOUNTS OFFICE OF THE COMPTROLLER ) OF PUBLIC ACCOUNTS ) REGISTER NO. THE STATE OF TEXAS i I HEREBY CERTIFY that this Bond has been examined, certified as to validity and approved by the Attorney General of the State of Texas, and duly registered by the Comptroller of Public Accounts of the State of Texas. WITNESS my signature and seal of office this Comptroller of Public Accounts of the State of Texas (SEAL) NOTE TO PRINTER: *is printed on back of Bonds **Comptroller Certificate not printed on Bonds Form of Certificate of Paving Agent/Registrar to appear on Bonds PAYING AGENT/REGISTRAR REGISTRATION CERTIFICATE This Bond has been duly issued and registered in the name of the Registered Owner shown above under the provi- sions of the within -mentioned Ordinance; the bond or bonds of the above entitled and designated series originally delivered having been approved by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts, as shown by the records of the Paying Agent/Registrar. , Texas as Paying Agent/Registrar Registration Date: B y Authorized Signature 13 FOR assigns, address, JawtKOL01 ASSIGNMENT VALUE RECEIVED the undersigned and transfers unto (print or and zip code of transferee:) hereby sells, typewrite name, (Social Security or other identifying number: ) the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints attorney to transfer the within Bond on the books kept for registration thereof, with full power of substitution in the premises, IIl:M421DT NOTICE: The signature on this assignment must corres- pond with the name of the registered owner as it appears on the face of the within Bond in every partic- ular. Signature guaranteed: The printing of a true and correct reproduction of the final opinion of McCall, Parkhurst & Horton L.L.P., Dallas, Texas, approving such Bonds as to their validity, is hereby approved and authorized. CUSIP numbers may be printed or typed on the definitive Bonds. It is expressly provided, however, that the presence or absence of CUSIP numbers on the definitive Bonds shall be of no significance or effect as regards the legality thereof and neither the City nor attorneys approving said Bonds as to legality are to be held responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds. The City hereby authorizes the printer of the Bonds to print thereon any statement of insurance with respect to the Bonds furnished by the municipal bond insurance company insuring the Bonds, as described in Section 38. SECTION 8. Reasons for Refunding. The City is issuing the Bonds for, among other reasons, the purpose of refunding the Refunded Bonds, which shall result in the fixing of variable rate debt, thereby removing the uncertainties as to interest due on the Refunded Bonds, and enabling the City to 14 more accurately predict the need for increases for water and sewer services. SECTION 9. Definitions. For all purposes of this Ordinance and in particular for clarity with respect to the issuance of the Bonds herein authorized and the pledge and appropriation of revenues to the payment of the Bonds, the following definitions are provided: "Additional Bonds" - Revenue bonds or other evidences of indebtedness which the City reserves the right to issue or enter into, as the case may be, in the future in accordance with the terms and conditions prescribed therefore and which are equally and ratably secured by a first lien on and pledge of the Net Revenues of the System. "Amortization Installment" - With respect to any Term Bonds of the Bonds or any series of Additional Bonds, shall mean the amount of money which is required to be deposited into the Mandatory Redemption Account for retirement of such Term Bonds (whether at maturity or by mandatory redemption and including redemption premium, if any) provided that the total Amortization Installments for such Term Bonds shall be sufficient to provide for retirement of the aggregate principal amount of such Term Bonds. "Average Annual Debt Service" - That average amount which, at the time of computation, will be required to pay the Debt Service of obligations when due and derived by dividing the total of such Debt Service by the number of complete Fiscal Years then remaining before final maturity. Capitalized interest payments provided from bond proceeds shall be excluded in making the aforementioned computation. "Bonds" - The "City of Stephenville, Texas, Utility System Revenue Bonds, Series 199311, dated , 1993, authorized by this Ordinance. "Bonds Similarly Secured" - Collectively, the Prior Issue, the 1988 Bonds, the Bonds and Additional Bonds. "City" or "Issuer" - The City of Stephenville, located in the County of Erath, Texas. "Code" - The Internal Revenue Code of 1986, and any amendments thereto. "Debt Service" - As of any particular date of computation, with respect to any obligations and with respect to any period, the aggregate of the amounts to 15 be paid or set aside by the City as of such date or in such period for the payment of the principal of (in- cluding Amortization Installments), premium, if any, and interest (to the extent not capitalized) on such obligations; provided however, if the Additional Bonds to be issued bear interest at a variable rate of interest, prior to the issuance of such obligations, the Director of Finance, subject to the approval of the governing body of the City, shall determine as of the date of the adoption of the ordinance authorizing the issuance of such Additional Bonds: (a) the maturity schedule of the fixed rate obligations which would have otherwise been issued on a schedule normally utilized by the City in financing improvements, extensions, or repairs to the System, and (b) the fixed rate that would have been applica- ble under market conditions at the time to such obligations had they been issued and delivered on such maturity schedule. The debt service requirements based upon such determi- nation shall thereafter be considered (including any calcu- lation thereafter to be made when such Additional Bonds are considered as Bonds Similarly Secured) as the debt service requirements with respect to such Additional Bonds. "Fiscal Year" - the twelve month accounting period used by the City in connection with the operation of the System, which may be any twelve consecutive month period established by the City. "Government Obligations" - Direct obligations of the United States of America, including obligations the principal of and interest on which are unconditionally guaranteed by the United States of America, and United States Treasury obligations such as its State and Local Government Series in book -entry form. "Gross Revenues" - All income, receipts and revenues of every nature derived or received from the operation and ownership (excluding refundable meter deposits, restricted gifts and grants in aid of con- struction, but including all fees paid to and on deposit with the City at the start of the Fiscal Year for access to the System) of the System, including earnings and income derived from the investment or deposit of moneys in any special funds or accounts created and maintained for the payment and security of the Bonds Similarly Secured and other obligations payable solely from and secured only by a lien on and pledge of the Net Revenues. F[7 "Maintenance and Operating Expenses" - All current expenses of operating and maintaining the System, including all salaries, labor, materials, repairs and extensions necessary to render efficient service; provided, however, that only such repairs and extensions, as in the judgment of the City Council, reasonably and fairly exercised, are necessary to maintain the operations of the System and render adequate service to the City and the inhabitants thereof, or such as might be necessary to meet some physical accident or condition which would otherwise impair obligations payable from Net Revenues shall be deducted in determining "Net Revenues". Depreciation charges shall not be considered Maintenance and Operating Expenses. Maintenance and Operating Expenses shall include payment under contracts for the purchase of water supply, treatment of sewage or other materials, goods or services for the System to the extent authorized by law and the provisions of such contract. "Net Earnings" - The meaning assigned to such term in Section 18 hereof. "Net Revenues" - Gross Revenues of the System, with respect to any period, after deducting the System's Maintenance and Operating Expenses during such period. 111988 Bonds" - The bonds so described in the preamble to this Ordinance. "Outstanding" - When used in this Ordinance with respect to Bonds means, as of the date of determina- tion, all Bonds theretofore issued and delivered under this Ordinance, except: (1) those Bonds cancelled by the Paying Agent/Registrar or delivered to the Paying Agent/Registrar for cancellation; (2) those Bonds deemed to be paid by the City in accordance with the provisions of Section 29 hereof by the irrevocable deposit with the Paying Agent/Registrar, or an authorized escrow agent, of money or Government Obligations, or both, in the amount necessary to fully pay the principal of (including Amortization Installments), premium, if any, and interest thereon to maturity or redemption, as the case may be, provided that, if such Bonds are to be re- deemed, notice of redemption thereof shall have been duly given pursuant to this Ordinance or irrevocably provided to be given to the satisfaction of the Paying Agent/Registrar, or waived; and 17 (3) those Bonds that have been mutilated, destroyed, lost, or stolen and replacement Bonds have been registered and delivered in lieu thereof as provided in Section 28 hereof. "Paying Agent/Registrar" - The , bank, trust company, financial institution or other entity so named in accordance with the provisions of Section 3. "Prior Issue" - The presently outstanding and unpaid 1985 Bonds payable in whole or in part from a lien on and pledge of the Net Revenues of the System, more particularly described in the preamble of this Ordinance. "Refunded Bonds" - The presently outstanding and unpaid obligations of the City to be refunded with the proceeds of the Bonds, more particularly described in the preamble of this Ordinance. "Required Reserve" - The amount required to be accumulated and maintained in the Reserve Fund under the provisions of Section 13. "System" - All properties, facilities and plants currently owned, operated and maintained by the City for the supply, treatment and transmission of treated potable water, the collection, treatment and disposal of water -carried wastes and the generation, transmission and distribution of electricity, together with all future extensions, improvements, replacements and additions thereto; provided, however, that notwithstanding the foregoing, and to the extent now or hereafter authorized or permitted by law, the term "System" shall not mean to include facilities of any kind which are declared not to be a part of the System and which are acquired or constructed by or on behalf of the City with the proceeds from the issuance of "Special Facilities Bonds", which are hereby defined as being special revenue obligations of the City which are not Bonds but which are payable from and secured by other liens on and pledges of any revenues, sources or payments, not pledged to the payment of the Bonds including, but not limited to, special contract revenues or payments received from any other legal entity in connection with such facilities. "Term Bonds" - Those Bonds or Additional Bonds so designated in the ordinances authorizing such bonds which shall be subject to retirement by operation of the Mandatory Redemption Account. If appropriate in the context of this Ordinance, words of the singular number shall be considered to include the 18 plural, words of the plural number shall be considered to include the singular, and words of the masculine, feminine or neuter gender shall be considered to include the other genders. SECTION 10. Pledge. That the City hereby covenants and agrees that the Net Revenues of the System, with the exception of those in excess of the amounts required for the payment and security of the Bonds Similarly Secured, are hereby pledged to the payment and security of the Bonds and Additional Bonds, if issued, including the establishment and maintenance of the special funds created and to be main- tained by this Ordinance, all as hereinafter provided; and it is hereby ordained that the Bonds Similarly Secured, and the interest thereon, shall constitute a first lien on the Net Revenues of the System and be valid and binding without any physical delivery thereof or further act by the City. SECTION 11. Utility System Fund. The City hereby covenants and agrees that Gross Revenues of the System (excluding earnings and income from investments held for the benefit of special funds created for the payment and security of obligations payable in whole or in part from the Net Revenues) shall be deposited to the credit of an account created and maintained by the City and known as the "City of Stephenville Utility System Fund" (herein called the "System Fund"). The revenues of the System deposited in the System Fund shall be pledged and appropriated to the extent required for the following uses in the order of priority shown: FIRST: To the payment of all necessary and reasonable Maintenance and Operating Expenses of the System as defined herein or required by statute to be a first charge on and claim against the Gross Revenues. SECOND: To the payment of the amounts required to be deposited in the Bond Fund created and established for the payment of Debt Service on the Bonds Similarly Secured as the same becomes due and payable. THIRD: To the payment of the amounts required to be deposited in the Reserve Fund to establish and maintain the Required Reserve in accordance with the provisions of this Ordinance or any other ordinance relating to issuance of Bonds Similarly Secured. Any Net Revenues remaining in the System Fund after satisfying the foregoing payments, or making adequate and sufficient provision for the payment thereof, may be appro- priated and used for any other City purpose now or hereafter permitted by law. iF] SECTION 12. Bond Fund. For purposes of providing funds to pay the principal of and interest on the Bonds Similarly Secured as the same becomes due and payable, the City agrees to create and maintain a separate and special account or fund known as the "City of Stephenville Interest and Sinking Revenue Bond Fund" (the "Bond Fund"). The City covenants that there shall be deposited to the credit of the Bond Fund prior to each principal and interest payment date from the Net Revenues an amount equal to one hundred per centum (100%) of the amount required to fully pay the interest on and the principal of the Bonds then falling due and payable, such deposits to pay maturing principal (including Amortization Installments) and accruing interest on the Bonds to be made in substantially equal monthly installments on or before the 15th day of each month, beginning on or before the 15th day of the month next following the month the Bonds are delivered to the initial purchaser(s). The required monthly deposits to the Bond Fund for the payment of principal of and interest on the Bonds shall continue to be made as hereinabove provided until such time as (i) the total amount on deposit in the Bond Fund and Reserve Fund is equal to the amount required to fully pay and discharge all Outstanding Bonds Similarly Secured (principal, including Amortization Installments, and inter- est) or (ii) the Bonds are no longer Outstanding. SECTION 13. Reserve Fund. For purposes of accumulat- ing and maintaining funds as a reserve for the payment of the Bonds Similarly Secured, the City agrees and covenants to create a separate and special fund or account to be know as the "City of Stephenville Revenue Bond Reserve Fund" (the "Reserve Fund") , and all funds deposited to the credit of said Fund (excluding earnings and income derived or received from investments which may be transferred to the System Fund during such periods as there is on deposit in the Reserve Fund the Required Reserve) shall be used solely for the payment of the principal of and interest on the Bonds Similarly Secured, when and to the extent an amount is not required for the maintenance of the Required Reserve, such excess amount may also be used to pay, or provide for the payment of, the final principal amount of a series of Bonds Similarly Secured so that such series of Bonds Similarly Secured is no longer deemed to be "Outstanding" within the meaning of Section 29 hereof. The total amount to be accumulated and maintained in the Reserve Fund by reason of the issuance of the Bonds shall be $ (the "Required Reserve"). Simultaneously with the delivery of the Bonds to the initial purchaser(s) .thereof, the City shall deposit to the credit of the Reserve Fund an amount equal to at least $ (the "Initial Deposit") from the proceeds of sale of the Bonds. 20 Additionally, on or before the 15th day of the month next following the delivery of the Bonds to the initial purchasers and on or before the last day of each month thereafter until the Required Reserve has been fully accumulated, the City agrees to deposit, from sources other than Bond proceeds, a sum equal to 1/60th of the difference between the Required Reserve and the Initial Deposit. As and when Additional Bonds are delivered or incurred, the Required Reserve shall be increased, if required, to an amount equal to not less than the Average Annual Debt Service (calculated on a Fiscal Year basis) for all Bonds Similarly Secured then outstanding, as determined on the date the last series of Additional Bonds are delivered or incurred, as the case may be. Any additional amount required to be maintained in the Reserve Fund shall be so accumulated by the deposit in the Reserve Fund of all or any part thereof in cash immediately after the delivery of the then proposed Additional Bonds, or, at the option of the City, by the deposit of monthly installments, made on or before the 15th day of each month following the month of delivery of the Additional Bonds, of not less than 1/60th of the additional amount to be maintained in said Fund by reason of the issuance of the Additional Bonds then being issued (or 1/60th of the balance of the additional amount not deposited immediately in cash). When and so long as the cash and investments in the Reserve Fund total not less than the Required Reserve, no deposits need be made to the credit of the Reserve Fund; but, if and when the Reserve Fund at any time contains less than the Required Reserve (other than as the result of the reissuance of Additional Bonds as provided in the preceding paragraph), the City covenants and agrees to cure the deficiency in the Required Reserve by resuming monthly deposits to said Fund from the Net Revenues of the System, such monthly deposits to be in amounts equal to not less than 1/60th of the then total Required Reserve to be main- tained in said Fund and made on or before the 15th day of each month until the total Required Reserve then to be maintained in said Fund has been fully restored. The City further covenants and agrees that, subject only to the payments to be made to the Bond Fund, the Net Revenues shall be applied and appropriated and used to establish and maintain the Required Reserve and to cure any deficiency in such amounts as required by the terms of this Ordinance and any other ordinance pertaining to the issuance of Additional Bonds. During such time as the Reserve Fund contains the total Required Reserve, the City may, at its option, withdraw all surplus in the Reserve Fund in excess of the Required Reserve and deposit such surplus in the System Fund. 21 SECTION 14. Depository for Funds; Security. All funds fftt required to be maintained by the City pursuant to the provisions of this Ordinance shall be kept at an official depository of the City and moneys deposited to the credit of such Funds, to the extent not invested, shall be secured in the manner prescribed by law for securing other funds of the City. SECTION 15. Deficiencies; Excess Net Revenues. (a) If on any occasion there shall not be sufficient Net Revenues to make the required deposits into the Bond Fund and the Reserve Fund, then such deficiency shall be cured as soon as possible from the next available Net Revenues of the System, or from any other sources available for such purpose. (b) Subject to making the required deposits to the Bond Fund (including the Mandatory Redemption Account) and the Reserve Fund when and as required by this Ordinance, or any ordinance authorizing the issuance of Additional Bonds, the excess Net Revenues may be used by the City for any lawful purpose. SECTION 16. Payment of Bonds. While any of the Bonds are Outstanding, authorized officials of the City shall cause to be transferred to the Paying Agent/Registrar, from funds on deposit in the Bond Fund and, if necessary, in the Reserve Fund, amounts sufficient to fully pay and discharge promptly as each installment of interest and principal of the Bonds accrues or matures or comes due by reason of redemption prior to maturity; such transfer of funds to be made in such manner as will cause immediately available funds to be deposited with the Paying Agent/Registrar at the close of the business day next preceding the date of payment for the Bonds. SECTION 17. Investments. Money in any Fund required to be maintained pursuant to this ordinance may, at the option of the City, be placed in time deposits or certificates of deposit secured (to the extent not insured by the Federal Deposit Insurance Corporation) by obligations of the type hereinafter described, or be invested, including investments held in book -entry form, in direct obligations of the United States of America, obligations guaranteed or insured by the United States of America, which, in the opinion of the Attorney General of the United States, are backed by its full faith and credit or represent its general obligations, or invested in indirect obligations 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 Home Loan Banks, Government National Mortgage Association, Farmers Home Administration, Federal Home Loan Mortgage Association, Federal Housing Association, or Participation Certificates in the Federal Assets Financing Trust; provided that all 22 /1 such deposits and investments shall be made in such a manner ( that the money required to be expended from any fund will be available at the proper time or times. Such investments (except State and Local Government Series investments held in book entry form, which shall at all times be valued at cost) shall be valued in terms of current market value within 45 days of the close of each Fiscal Year and, with respect to investments held for the account of the Reserve Fund, within 30 days of the date of passage of the ordinance authorizing the issuance of Additional Bonds. All interest and income derived from deposits and investments in the Bond Fund immediately shall be credited to, and any losses debited to, the Bond Fund. All interest and interest income derived from deposits in and investments of the Reserve Fund shall, subject to the limitations provided in Section 13 hereof, be credited to and deposited in the System Fund. All such investments shall be sold promptly when necessary to prevent any default in connection with the Bonds Similarly Secured. SECTION 18. Issuance of Additional Parity obligations. Subject to the provisions hereinafter appearing as conditions precedent which must be satisfied, the City reserves the right to issue, from time to time as needed, Additional Bonds for any lawful purpose. Such Additional Bonds may be issued in such form and manner as now or hereafter authorized by the laws of the State of Texas for the issuance of evidences of indebtedness or other instruments, and should new methods or financing techniques be developed that differ from those now available and in normal use, the City reserves the right to employ the same in its financing arrangements provided only that the following conditions precedent for the authorization and issuance of the same are satisfied, to wit: (1) The City Treasurer of the City (or other officer of the City then having the primary responsi- bility for the financial affairs of the City) shall have executed a certificate stating (a) that, to the best of his knowledge and belief, the City is not then in default as to any covenants, obligation or agreement contained in any ordinance or other proceeding relating to any obligations of the City payable from and secured by a lien on and pledge of the Net Revenues of the System that would materially affect the security or payment of such obligations and (b) either (i) payments into all special funds or accounts created and established for the payment and security of all outstanding obligations payable from and secured by a lien on and pledge of the Net Revenues of the System have been made and that the amounts on deposit in such special funds or accounts are.the amounts then required to be on deposit therein or (ii) the application of the 23 n proceeds of sale of such obligations then being issued t will cure any such deficiency. RR (2) The Additional Bonds shall be scheduled to mature or be payable as to principal on June 1 and December 1 (or both) in each year the same are to be outstanding or during the term thereof. (3) The City has secured a certificate or opinion of a Certified Public Accountant to the effect that, according to the books and records of the City, the Net Earnings, for the preceding Fiscal Year or for a 12 consecutive month period out of the 15 consecutive months immediately preceding the month the ordinance authorizing the issuance of the Additional Bonds is adopted are equal to (a) at least (i) 1.40 times the Average Annual Debt Service for all Bonds Similarly Secured then Outstanding and (ii) 1.10 times the maximum annual Debt Service payment to be paid in a Fiscal Year for the Bonds Similarly Secured then Outstanding after giving effect to the issuance of the Additional Bonds then being issued, or (b) at least 1.25 times the Average Annual Debt Service of the Bonds Similarly Secured after giving effect to the issuance of the proposed Additional Bonds, and in making the determination of the Net Earnings under this paragraph (b), the Accountant may take into consideration a change in the rates and charges for services and facilities afforded by the System that became effective at least sixty (60) days prior to the last day of the period for which Net Earnings are determined and, for purposes of satisfying the above Net Earnings test, make a pro forma determination of the Net Earnings of the System for the period of time covered by this certification or opinion based on such changed in rates and charges being in effect for the entire period covered by the Accountant's certificate or opinion. The foregoing notwithstanding, at such point in time as there are no longer any bonds of the Prior Issue Outstand- ing, the following condition shall be substituted in lieu of the condition described in (3) above, to -wit: "The City has secured a certificate or opinion of a Certified Public Accountant to the effect that, according to the books and records of the City, the Net Earnings, for the preceding Fiscal Year or for a 12 consecutive month period out of the 15 consecutive months immediately preceding the month the ordinance authorizing the issuance of the Additional Bonds is adopted are equal to at least (i) 1.25 times the Average.Annual Debt Service for all Bonds Similarly Secured then Outstanding and (ii) 1.10 times the maximum annual Debt Service payment to be paid in a 24 Fiscal Year for the Bonds Similarly Secured then Outstanding after giving effect to the issuance of the Additional Bonds then being issued, and in making the determination of the Net Earnings under this paragraph, the Accountant may take into consideration a change in the rates and charges for services and facilities afforded by the System that became effective at least sixty (60) days prior to the last day of the period for which Net Earnings are determined and, for purposes of satisfying the above Net Earnings test, make a pro forma determination of the Net Earnings of the System for the period of time covered by this certification or opinion based on such change in rates and charges being in effect for the entire period covered by the Accoun- tant's certificate or opinion." As used in this Section, the term "Net Earnings" shall mean the Gross Revenues of the System after deducting the Maintenance and Operating Expenses of the System, but not depreciation charges or expenditures which, under generally accepted accounting principles, should be charged to capital expenditures. SECTION 19. Refunding Bonds. The City reserves the right to issue refunding bonds to refund all or any part of the outstanding Bonds Similarly Secured (pursuant to any law then available) upon such terms and conditions as the City Council of the City may deem to be in the best interest of the City and its inhabitants, and if less than all such outstanding Bonds Similarly Secured are refunded, the conditions precedent prescribed (for the issuance of Addi- tional Bonds) set forth in subparagraph (3) of Section 18 shall be satisfied and the Accountant's certificate or opinion required in subparagraph (3) shall give effect to the Debt Service of the proposed refunding bonds (and shall not give effect to the Debt Service of the Bonds Similarly Secured being refunded following their cancellation or provision being made for their payment). SECTION 20. Obligations of Inferior Lien and Pledge. The City hereby reserves the right to issue obligations payable from and secured by a lien on and pledge of the Net Revenues of the System, junior and subordinate in rank and dignity to the lien and pledge securing the payment of the Bonds Similarly Secured, as may be authorized by the laws of the State of Texas. SECTION 21. Rates and Charges. That, for the benefit of the Holders of the Bonds and in addition to all provi- sions and covenants in the laws of the State of Texas and in fp this Ordinance, the City hereby expressly stipulates and agrees, while any of the Bonds are Outstanding, to establish and maintain rates and charges for facilities and services afforded by the System that are reasonably expected, on the 25 basis of available information and experience, with due allowance for contingencies, and giving effect to revenues I on hand and budgeted for system expenditures at the beginning of the Fiscal Year to produce Gross Revenues in each Fiscal Year sufficient: (1) To pay Maintenance and Operating Expenses, depreciation charges and replacement and betterment costs (2) To produce Net Revenues sufficient to pay the principal of and interest on the Bonds Similarly Secured and the amounts required to be deposited in any reserve or contingency fund created for the payment and security of the Bonds Similarly Secured, and other obligations or evidences of indebtedness issued or incurred that are payable only from and secured solely by a lien on and pledge of the Net Revenues of the System, and (3) To produce Net Revenues equal to at least 1.10 times the Debt Service due and payable on the outstanding Bonds Similarly Secured. SECTION 22. Maintenance and Operation; Insurance. The City shall maintain the System in good condition and operate the System in an efficient manner and at reasonable cost. While any Bonds are Outstanding, the City agrees to maintain casualty and other insurance on the System of a kind and in an amount customarily carried by municipal corporations owning and operating similar properties. The City is in compliance with all franchises, permits and authorizations necessary for the operation of the System and required by any governmental agency; and the City has obtained or will obtain, and shall keep in full force and effect while the Bonds are Outstanding, all franchises, permits, authorizations and approvals required for or with respect to the operation and maintenance of the System. SECTION 23. Sale or Lease of Properties. The City, to the extent and in the manner authorized by law, may sell or exchange for consideration representing the fair value thereof, as determined by the City Council of the City, any property not necessary or required in the efficient operations of the System, or any equipment not necessary or useful in the operations thereof or which is obsolete, damaged or worn out or otherwise unsuitable for use in the operation of the System. The proceeds of any sale of properties of the System shall be deposited in the System Fund. SECTION 24. Records and Accounts. The City hereby covenants and agrees that so long as any of the Bonds or any interest thereon remain outstanding, it will keep and M maintain separate and complete records and accounts pertaining to the operations of the System in which complete and correct entries shall be made of all transactions relating thereto, as provided by Article 1113, V.A.T.C.S., or other applicable law. The holder or holders of any Bonds Similarly Secured or any duly authorized agent or agents of such holders shall have the right at all reasonable times to inspect such records, accounts and date relating thereto, and to inspect the System and all properties comprising same. The City further agrees that following the close of each Fiscal Year, it will cause an audit of such books and accounts to be made by an independent firm of Certified Public Accountants. Each such audit, in addition to whatever other matters may be thought proper by the Accoun- tant, shall particularly include the following: (a) A statement of the income and expenses of the System for such Fiscal Year. (b) A balance sheet for the System as of the end of such Fiscal Year. (c) A statement describing the sources and applications of funds of the Systems for such Fiscal Year. (d) The Accountant's comments regarding the manner in which the City has carried out the requirements of this Ordinance and any other ordinance authorizing the issuance of Additional Bonds and his recommendations for any changes or improvements in the operations, records and accounts of the System. (e) A list of insurance policies in force at the end of the Fiscal Year covering the properties of the System, setting out as to each policy the amount thereof, the risk covered, the name of the insurer and the policy's expiration date. Expenses incurred in making an annual audit of the operations of the System are to be regarded as Maintenance and Operating Expenses. Copies of each annual audit shall be furnished to the Executive Director of the Municipal Advisory Council of Texas at his office in Austin, Texas, the City's Financial Advisor and, upon request, to the original purchaser of the Bonds and subsequent Holders of any of said Bonds. The audits herein required shall be made within 120 days following the close of each Fiscal Year insofar as is possible. SECTION 25. Special Covenants. The City further covenants and agrees by and through this Ordinance as follows: 27 (a) It has the lawful power to pledge the Net Revenues of the System to the payment of the Bonds to the extent provided herein and has lawfully exercised said power under the Constitution and laws of the State of Texas, and that the Bonds issued hereunder, together with any Additional Bonds shall be ratably secured in such manner that no one Bond shall have preference over any other Bond of said issues. (b) The Net Revenues of the System have not been in any manner pledged or encumbered to the payment of any debt or obligation of the City or the System, save and except for the Prior Issue, the 1988 Bonds and the Refunded Bonds, other than as made herein for the payment and security of the Bonds. (c) That no free services of the System shall be allowed, and should the City or any of its agents or instrumentalities make use of the services and facili- ties of the System, payment of the reasonable value thereof shall be made by the City out of funds from sources other than the revenues and income of the System. (d) To the extent that it legally may, the City further covenants and agrees that, so long as any of the Bonds or any interest thereon are Outstanding, no franchise shall be granted for the installation or operation of any competing waterworks and sewer facilities other than those owned by the City, and the operation of any such competing system or facilities by anyone other than this City is hereby prohibited. SECTION 26. Remedy in Event of Default. In addition to all rights and remedies provided by the laws of the State of Texas, the City covenants and agrees particularly that in the event the City (a) defaults in payments to be made to the Bond Fund or the Reserve Fund as required by this Ordinance or (b) defaults in the observance or performance of any other of the covenants, conditions or obligations set forth in this Ordinance, the Holder of any of the Bonds shall be entitled to a writ of mandamus issued by a court of proper jurisdiction, compelling and requiring the City and its officers to observe and perform any covenant, condition or obligation prescribed in this Ordinance. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power, or shall be construed to be a waiver of any such default or acquiescence therein, and every such right and power may be exercised from time'to time and as often as may be deemed expedient. The specific remedy herein provided shall be cumulative of all other existing remedies and the specification of such remedy shall not be deemed to be exclusive. 28 SECTION 27. Special Obligations. The Bonds are special obligations of the City payable from the pledged Net Revenues of the System and the Holders thereof shall never have the right to demand payment thereof out of funds raised or to be raised by taxation. SECTION 28. Mutilation, Destroyed; Lost and Stolen Bonds. In case any Bond shall be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar, in its discretion and subject to City approval, may execute and deliver a replacement Bond of like form and tenor, and in the same denomination and bearing a number not contemporaneously outstanding, in exchange and substitution for such mutilated Bond, or in lieu of and in substitution for such destroyed, lost or stolen Bond, only upon (i) the filing by the Holder thereof with the Paying Agent/Registrar of evidence satisfactory to the Paying Agent/Registrar of the destruction, loss or theft of such Bond, and of the authenticity of the ownership thereof and (ii) the furnishing to the Paying Agent/Registrar of indemnification in an amount satisfactory to hold the City and the Paying Agent/Registrar harmless. All expenses and charges associated with such indemnity and with the preparation, execution and delivery of a replacement Bond shall be borne by the Holder of the Bond mutilated, or destroyed, lost or stolen. Every replacement Bond issued pursuant to this Section shall be a valid and binding obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably with all other Outstanding Bonds, notwithstanding the enforceability of payment by anyone of the destroyed, lost, or stolen Bonds. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement and payment of mutilated, destroyed, lost or stolen Bonds. SECTION 29. Cancellation. All Bonds surrendered for payment, redemption, transfer, exchange, or replacement, if surrendered to the Paying Agent/Registrar, shall be promptly cancelled by it and, if surrendered to the City, shall be delivered to the Paying Agent/Registrar and, if not already cancelled, shall be promptly cancelled by the Paying Agent/Registrar for cancellation any Bonds previously certified or registered and delivered which the City may have acquired in any manner whatsoever, and all Bonds so delivered shall be promptly cancelled by the Paying Agent/Registrar. All cancelled Bonds held by the Paying Agent/Registrar shall be destroyed as directed by the City. 29 n SECTION 30. Satisfaction of Obligation of City. If #} the City shall pay or cause to be paid, or there shall otherwise be paid to the Holders, the principal of, premium, if any, and interest on the Bonds, at the times and in the manner stipulated in this Ordinance, then the pledge of the Net Revenues of the System under this Ordinance and all other obligations of the City to the Holders shall thereupon cease, terminate, and become void and be discharged and satisfied. Bonds or any principal amount(s) thereof shall be deemed to have been paid within the meaning and with the effect expressed above in this Section when (i) money sufficient to pay in full such Bonds or the principal amount(s) thereof at maturity or to the redemption date therefor, together with all interest due thereon, shall have been irrevocably deposited with and held in trust by the Paying Agent/Registrar, or an authorized escrow agent, or (ii) Government Obligations shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow agent, which Government Obligations have been certified by an independent accounting firm to mature as to principal and interest in such amounts and at such times as will insure the availability, without reinvestment, of sufficient money, together with any moneys deposited therewith, if any, to pay when due the principal of and interest on such Bonds, or the principal amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of redemption has been duly given or waived or if irrevocable arrangements therefor acceptable to the Paying Agent/Registrar have been made) the redemption date thereof. The City covenants that no deposit of moneys or Government Obligations will be made under this Section and no use made of any such deposit which would cause the Bonds to be treated as "arbitrage bonds" within the meaning of section 148 of the Code, or regulations adopted pursuant thereto. Any moneys so deposited with the Paying Agent/Regis- trar, or an authorized escrow agent, and all income from Government Obligations held in trust by the Paying Agent/Registrar or an authorized escrow agent, pursuant to this Section which is not required for the payment of the Bonds, or any principal amount(s) thereof, or interest thereon with respect to which such moneys have been so deposited shall be remitted to the City or deposited as directed by the City. Furthermore, any money held by the Paying Agent/Registrar for the payment of the principal of and interest on the Bonds and the remaining unclaimed for a period of three (3) years after the Stated Maturity, or applicable redemption date, of the Bonds such moneys were deposited and are held in trust to pay shall, upon the request of the City, and subject to the applicable unclaimed property laws of Texas, be remitted to the City against a written receipt therefor. 30 SECTION 31. Ordinance a Contract; Amendments. This Ordinance shall constitute a contract with the Holders from time to time, be binding on the City, and shall not be amended or repealed by the City so long as any Bond remains Outstanding except as permitted in this Section. The City, may, without the consent of or notice to any Holders, from time to time and at any time, amend this Ordinance in any manner not detrimental to the interests of the Holders, including the curing of any ambiguity, inconsistency, or formal defect or omission herein. In addition, the City may, with the written consent of Holders holding a majority in aggregate principal amount of the Bonds Similarly Secured then Outstanding affected thereby, amend, add to, or rescind any of the provisions of this Ordinance; provided that, without the consent of all Holders of Outstanding Bonds, no such amendment, addition, or rescission shall (1) extend the time or times of payment of the principal of, premium, if any, and interest on the Bonds, reduce the principal amount thereof, the redemption price therefore, or the rate of interest thereon, or in any other way modify the terms of payment of the principal of, premium, if any, or interest on the Bonds, (2) give any preference to any Bond over any other Bonds, or (3) reduce the aggregate principal amount of Bonds required to be held by Holders for consent to any such amendment, addition or rescission. Nothing in this Ordinance, expressed or implied, is intended or shall be construed to confer upon any person other than the City, the Paying Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by reason of this Ordinance or any provisions hereof, this Ordinance and all its provisions being intended to be and being for the sole and exclusive benefit of the City, the Paying Agent/Reg- istrar and the Holders. SECTION 32. Notices to Holders; Waiver. Wherever this Ordinance provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to the address of each Holder as it appears on the Registration Books. In any case where notice to Holders is given by mail, neither the failure to mail such notice to any particular Holders, nor any defect in any notice so mailed, shall affect the sufficiency of such notice with respect to all other Bonds. Where this Ordinance provides for notice in any manner, such notice may be waived in writing by the Holder entitled to receive such notice, either before or after the event with respect to which such notice is given, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. 31 SECTION 33. Covenants Regarding Tax Exemption. The Issuer covenants to take any action to assure, or refrain from any action which would adversely affect, the treatment of the Bonds as obligations described in section 103 of the Internal Revenue Code of 1986 (the "Code"), the interest on which is not includable in the "gross income" of the holder for purposes of federal income taxation. In furtherance thereof, the Issuer covenants as follows: (a) to take any action to assure that no more than ten percent of the proceeds of the Bonds (less amounts deposited to a reserve fund, if any) are used for any "private business use", as defined in section 141(b)(6) of the Code or, if more than ten percent of the proceeds are so used, that amounts, whether received by the Issuer, with respect to such private business use, do not, under the terms of this Order or any underlying arrangement, directly or indirectly, secure or provide for the payment of more than ten 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 five percent of the proceeds of the Bonds (less amounts deposited into a reserve fund, if any) then the amount in excess of five percent is used for a "private business use" which is "related" and not "disproportionate", within the meaning of section 141(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 five percent of the proceeds of the Bonds (less amounts deposited into a reserve fund, if any) is directly or indirectly used to finance loans to persons, other than state or local governmental units, in contravention of section 141(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 investment property (as defined in section 148(b)(2) of the Code) which 32 produces a materially higher yield over the term of the Bonds, other than investment property acquired with -- (1) proceeds of the Bonds invested for a reasonable temporary period of three years or less until such proceeds are needed for the purpose for which the bonds are issued, (2) amounts invested in a bona fide debt service fund, within the meaning of section 1.103- 13(b)(12) of the Treasury Regulations, and (3) amounts deposited in any reasonably required reserve or replacement fund to the extent such amounts do not exceed ten percent of the proceeds 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) and, to the extent applicable, section 149(d) of the Code (relating to advance refundings); (h) 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 than 60 days after the Bonds have been paid in full, 100 per- cent of the amount then required to be paid as a result of Excess Earnings under section 148(f) of the Code; and (i) to maintain such records as will enable the Issuer to fulfill its responsibilities hereunder and under section 148 of the Code and to retain such records for at least six years following the final payment of principal and interest on the Bonds. It is the understanding of the Issuer that the covenants contained herein are 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 covenant contained herein to the extent that such modification or expansion, 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 103 of the Code. In the event that 33 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, 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. (j) The Issuer hereby designates the Bonds as "qualified tax-exempt bonds" as defined in section 265(b)(3) of the Code. In furtherance of such designation, the Issuer represents, covenants and warrants the following: (i) that during the calendar year in which the Bonds are issued, the Issuer (including any subordinate entities) has not designated nor will designate bonds, which when aggregated with the Bonds, will result in more than $10,000,000 of "qualified tax-exempt bonds" being issued; (ii) that the Issuer reasonably anticipates that the amount of tax-exempt obligations issued during the calendar year in which the Bonds are issued, by the Issuer (or any subordinate entities) will not exceed $10,000,000; and (iii) that the Issuer will take such action ov refrain from such action as necessary, and as more particularly set forth in this Ordinance, in order that the Bonds will not be considered "private activity bonds" within the meaning of section 142 of the Code. SECTION 34. Confirmation of Sale of the Bonds. The Bonds are hereby initially sold and shall be delivered to, and registered in the name of, the TEXAS WATER DEVELOPMENT BOARD, for cash at a price of par. SECTION 35. Control and Custody of Bonds. The Mayor of the City shall be and is hereby authorized to take and have charge of all necessary orders and records pending investigation by the Attorney General of the State of Texas, including the printing and supply of the Bonds, and shall take and have charge and control of the Bonds pending their approval by the Attorney General, the registration thereof by the Comptroller of Public Accounts and the delivery thereof to the Purchaser. Furthermore, the Mayor and City Secretary of the City and City Treasurer, any one or more of said officials, are hereby authorized and directed to furnish and execute such documents relating to the City and its financial affairs as may be necessary for the issuance of the Bonds, the approval of the Attorney General and their registration by the Comptroller of Public Accounts and, together with the city's financial advisor, bond counsel and the Paying Agent/Registrar, make the necessary arrangements for the delivery of the Bonds to the Purchaser. ri! n SECTION 36. Interest Earnings on Bond Proceeds. t Interest earnings derived from the investment of proceeds €€ from the sale of the Bonds shall be used along with other bond proceeds for the purpose for which the Bonds are issued set forth in Section 1 hereof; provided that after completion of such purpose, if any of such interest earnings remain on hand, such interest earnings shall be deposited in the Bond Fund and utilized in the manner provided in Section 39 hereof. 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 Section 33 hereof in order to prevent the Bonds from being arbitrage bonds shall be so rebated and not considered as interest earnings for the purposes of this Section. SECTION 37. Final Accounting. The City shall render a final accounting to the Texas Water Development Board in reference to the total cost incurred by the City for the project together with a copy of "as built" plans of the project upon completion. SECTION 38. Construction Fund. Immediately after the delivery of the Bonds, the City shall cause a Construction Fund to be established with the City's depository bank. The costs of issuance of the Bonds, being legal, fiscal and engineering, may be paid from this Fund. The cost of the construction of the project will be paid from this Fund upon direction of the City Council of the City. SECTION 39. Surplus Bond Proceeds/Completion Certificate. The City shall use any surplus proceeds from the Bonds sold to the Texas Water Development Board remaining after completion of the project, which completion date shall be set forth in a completion certificate to be delivered by the City to the Texas Water Development Board promptly following completion of the project as determined by the City's engineer for the project, to redeem, in inverse order of maturity, the Bonds owned by the Texas Water Development Board. SECTION 40. Annual and Monthly Reports. Monthly operating statements and annual audits of the City shall be delivered to the Texas Water Development Board as long as the State of Texas owns any of the Bonds, and the monthly operating statement shall be in such detail as requested by the Development Fund Manager of the Texas Water Development Board until this requirement is waived by the Development Fund Manager. ou SECTION 41. Compliance with the Texas Water Development Board's Rules and Regulations. The City covenants to comply with the rules and regulations of the Texas Water Development Board, and to maintain insurance on the City's System in that amount required by the Texas Water Development Board. SECTION 42. State Bonds. In addition to the covenants contained in Section 33, the City further covenants that it will not take, or omit to take, any action which action or omission would adversely affect the excludability for federal income tax purposes of interest payable on any series of bonds issued by the Texas Water Development Board or the Texas Water Resources Finance Authority. SECTION 43. Inconsistent Provisions. All ordinances, orders or resolutions, or parts thereof, which are in conflict or inconsistent with any provision of this ordi- nance, are hereby repealed and cancelled and the provisions of this Ordinance shall supersede and control as to the matters contained herein. SECTION 44. Governing Law. This Ordinance shall be construed and enforced in accordance with the laws of the State of Texas and the United States of America. SECTION 45. Severability. If any provision of this Ordinance or the application thereof to any circumstance shall be held to be invalid, the remainder of this Ordinance and the application thereof to other circumstances shall nevertheless be valid, and this City Council hereby declares that this Ordinance would have been enacted without such invalid provision. SECTION 46. Escrow Agreement. The Mayor and City Secretary are hereby authorized and directed to execute and deliver an Escrow Agreement substantially in the form attached hereto as Exhibit A, with such changes as may be approved by the Mayor, such approval to be evidenced by his execution thereof. SECTION 47. Escrow Account. Upon delivery of the Bonds and receipt of the proceeds thereof, the City shall immediately deposit into the Escrow Account established by the Escrow Agreement all of the proceeds, less an amount equal to the principal of the Refunded Bonds and any accrued interest, to be administered, held and released in accordance with the terms of the Escrow Agreement. SECTION 48. Refunding. The Mayor and City Manager are authorized and directed to transfer to the paying agent for the Refunded Bonds, on the date of closing and delivery of W1 the Bonds to the Texas Water Development Board, an amount of t! money in immediately available funds sufficient to pay the interest accrued and due on the Refunded Bonds to and through the day preceding such closing and delivery, which amount, together with $1,535,000 derived from the sale of the Bonds, will be used immediately to pay, redeem and retire the Refunded Bonds by consent of the Texas Water Development Board. 37 EXHIBIT A ESCROW AGREEMENT City of Stephenville, Texas Utility System Revenue Bonds, Series 1993. THIS ESCROW AGREEMENT, dated as of , 1993 (herein, together with any amendments or supplements hereto, called the "Agreement"), is entered into by and between the City of Stephenville, Texas (herein called the "Issuer") and , Texas, as escrow agent (herein, together with any successor in such capacity, called the "Escrow Agent"). W I T N E S S E T H: WHEREAS, the Issuer has authorized and sold to the Texas Water Development Board the City of Stephenville, Texas Utility System Revenue Bonds, Series 1993, dated 1993, in the aggregate principal amount of $7,680,000 (hereinafter called the "Bonds"); and WHEREAS, in accordance with Approval of the Texas Water Development Board, it is necessary to escrow $6,145,000 of the proceeds from the sale of the Bonds until such time as the Texas Water Development Board approves the release of such funds from escrow; and WHEREAS, the Bank is a commercial bank, located in the State of Texas, is a member of the Federal Deposit Insurance Corporation, and is otherwise qualified and empowered to enter into this Escrow Agreement. NOW, THEREFORE, in consideration of the mutual agreements herein contained and in consideration of Ten Dollars ($10.00) duly paid by the Issuer to the Bank concurrently herewith, the receipt whereof is hereby acknowledged, and in order to secure the deliver of the Bonds, the parties hereto mutually undertake, promise and agree for themselves, their respective representatives, successors and assigns as follows: 1. That there is hereby deposited by the Issuer with the Bank, to be held in a special trust fund and separate trust account, designated as "City of Stephenville, Texas Escrow Account", hereinafter called "Escrow Account", the sum of $6,145,000 from the proceeds of the sale of the Bonds. The Texas Water Development Board has directed that only upon written order of the Texas Water Development Board may all or any part of these monies may be released from escrow. n 2. That the Bank shall invest the monies in the Escrow jI i1 Account as directed by the Issuer, and if not so directed, such monies shall be invested in direct obligations of the United States of America or obligations fully guaranteed by the United States of America, any income made from such investments shall be deposited into the Escrow Account. 3. That monies in this Escrow Account shall be secured in the same manner as all other public funds of the Issuer. 4. That upon notification of the approval of the release of those monies from the Escrow Account by the Texas Water Development Board, the Bank shall transfer such monies, together with any interest, to such account as directed by the Issuer. 5. That the Bank shall not be liable for any act done or step taken or omitted by it or any mistake of fact or law, except for its negligence or default or failure in the performance of any obligation imposed upon it hereunder. The Bank shall not be responsible in any manner from any proceedings in connection with the Bonds or any recitation contained in the Bonds. 6. That this escrow shall expire upon transfer of the funds in the Escrow Account to the Issuer. IN WITNESS WHEREOF, the Mayor signed this instrument on behalf of said Issuer, and the Issuer's official seal is affixed hereto, and the Mayor's signature is attested to by the City Secretary, and the Bank has caused this instrument to be signed in its corporate name by its President or one of its Vice Presidents, and sealed with its corporate seal, and attested to by , all as of the day of , 1993. CITY OF STEPHENVILLE, TEXAS Mayor ATTEST: ty Secretary (SEAL) ATTEST: Title: , Texas Title: 3