2001B12-BONDAN ORDINANCE BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS AUTHORIZING THE ISSUANCE OF "CITY OF SCHERTZ, TEXAS
UTILITY SYSTEM REVENUE AND REFUNDING BONDS, SERIES 2001";
PROVIDING FOR THE PAYMENT OF THE PRINCIPAL OF AND
INTEREST ON THE BONDS BY A FIRST AND PRIOR LIEN ON AND
PLEDGE OF THE NET REVENUES OF THE SYSTEM; PROVIDING THE
TERMS AND CONDITIONS OF SUCH BONDS AND RESOLVING OTHER
MATTERS INCIDENT AND RELATING TO THE ISSUANCE, PAYMENT,
SECURITY, SALE, AND DELIVERY OF SUCH BONDS, INCLUDING THE
APPROVAL AND DISTRIBUTION OF AN OFFICIAL STATEMENT
PERTAINING THERETO; AUTHORIZING THE EXECUTION OF A
PAYING AGENT/REGISTRAR AGREEMENT, PURCHASE CONTRACT,
AND AN ESCROw DEPOSIT LETTER; COMPLYING WITH THE
REQUIREMENTS OF THE DEPOSITORY TRUST COMPANY'S LETTER
OF REPRESENTATIONS; AND PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, the City Council (the City Council) of the City of Schertz, Texas (the City) has
heretofore issued, sold, and delivered, and there are currently outstanding obligations in the
aggregate principal amount of $785,000, being the obligations set forth on Schedule I hereto which
is incorporated by reference for all purposes to this Ordinance (the Refunded Obligations); and
WHEREAS, the City has determined that revenue bonds (the Bonds) payable from and
equally and ratably secured solely by a first and prior lien on and pledge of the Net Revenues
(hereinafter defined) of the City's combined waterworks and sanitary sewer systems(the System)
should be issued for the purposes hereinafter described; and
WHEREAS, the City is empowered by the provisions of Chapter 1502, as amended, Texas
Government Code and the City's Home Rule Charter to issue the Bonds; and
WHEREAS, the City intends to utilize the proceeds of the Bonds for the purpose of (i)
building, improving, extending, enlarging, or repairing the System, (ii) the current refunding of the
Refunded Obligations, and (iii) to pay the costs of issuing the Bonds; and
WHEREAS, pursuant to the provisions of Chapter 1207, as amended, Texas Govemmem
Code (the Act), the City Council is authorized to issue refunding bonds and deposit the proceeds of
sale under an escrow agreement to provide for the payment of the Refunded Obligations, and such
deposit, when made in accordance with the Act, shall constitute the making of firm banking and
financial arrangements for the discharge and final payment of the Refunded Obligations; and
WHEREAS, the Act requires that the deposit of the proceeds from the sale of the refunding
bonds be deposited directly with any place of payment for the Refunded Obligations; and
#45007333vl
WHEREAS, when firm banking arrangements have been made for the payment of principal
of and interest to the stated maturity or redemption dates of the Refunded Obligations, then the
Refunded Obligations shall no longer be regarded as outstanding except for the purpose of receiving
payment from the funds provided for such purpose and may not be included in or considered to be
an indebtedness of the City for the purpose of a limitation on outstanding indebtedness or taxation
or for any other purpose; and
WHEREAS, The Bank of New York (as the successor to First City National Bank of Austin,
Austin, Texas) currently serves as paying agent for the Refunded Obligations and will serve as the
Escrow Agent (hereinafter defined) for the refunding bonds; and
WHEREAS, the City Council also hereby finds and determines that the Refunded
Obligations are scheduled to mature or are subject to being redeemed, not more than twenty (20)
years from the date of the refunding bonds herein authorized and being issued to restructure the
City's debt service in the coming years, and such refunding will result in a net present value savings
of approximately $ , including the City's contribution of $ ; and
WHEREAS, the City Council hereby finds and determines that this action and the adoption
of this Ordinance, is in the best interest of the citizens of the City; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT'
SECTION 27: Authorization - Designation - Principal Amount - Purpose. Revenue and
refunding bonds of the City shall be and is hereby authorized to be issued in the aggregate principal
amount of FIVE MILLION FIVE HUNDRED NINETY-FIVE AND NO/100 DOLLARS
($5,595,000), to be designated and bear the title of CITY OF SCHERTZ, TEXAS UTILITY
SYSTEM REVENUE AND REFUNDING BONDS, SERIES 2001 (the Bonds), pursuant to an
ordinance adopted by the City Council (the Ordinance) for the purpose of providing funds for
(i) building, improving, extending, enlarging, or repairing the City's combined waterworks and
sanitary sewer system, (ii) to refund the Refunded Obligations, and (iii) paying the costs of issuing
the Bonds. The Bonds shall be payable from and equally and ratably secured solely by a first and
prior lien on and pledge of the Net Revenues (hereinafter defined) of the System (hereinafter
defined). The Bonds are authorized to be issued pursuant to the authority conferred by and in
conformity with the laws of the State of Texas, particularly Chapterl207 and Chapter 1502, as
amended, Texas Government Code, the City's Home Rule Charter, and the Ordinance.
SECTION 28: Fully Registered Obligations - Authorized Denominations - Stated Maturities -
Interest Rates - Date. The Bonds are issuable in fully registered form only; shall be dated April 1,
2001 (the Bond Date) and shall be in denominations of $5,000 or any integral multiple thereof, and
the Bonds shall become due and payable on September 1 in each of the years and in principal
amounts (the Stated Maturities) and bear interest on the unpaid principal amounts from the Bond
#45007333vl -2-
Date, or from the most recent Interest Payment Date (hereinafter defined) to which interest has been
paid or duly provided for, at the per annum rates, while Outstanding, in accordance with the
following schedule:
Year of Principal Interest
Stated Maturity Amounts ($) Rates (%)
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
SECTION 29' Payment of Bonds - Interest Payments - Paying Agent/Registrar. The
principal of, premium, if any, and interest on the Bonds, due and payable by reason of Stated
Maturity, redemption, or otherwise, shall be payable 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 such payment of principal of and interest on the Bonds shall be without exchange or collection
charges to the Holder (as hereinafter defined) of the Bonds.
The Bonds shall bear interest on the unpaid principal amount thereof at the per annum rates
shown above in Section 2, computed on the basis of a 360-day year of twelve 30-day months, and
interest thereon shall be payable annually on September 1 and March 1 of each year (the Interest
Payment Date), commencing September 1, 2001, while the Bonds are Outstanding.
#45007333vl -3-
The selection and appointment of The Bank of New York, New York, New York, to serve
as the initial Paying Agent~egistrar for the Bonds is hereby approved and confirmed, and the City
agrees and covenants to cause to be kept and maintained at the corporate trust office of the Paying
Agent/Registrar books and records (the Security Register) for the registration, payment, and transfer
of the Bonds, all as provided herein, in accordance with the terms and provisions of a Paying
Agent/Registrar Agreement, attached, in substantially final form, as Exhibit A hereto, and such
reasonable roles and regulations as the Paying Agent/Registrar and the City may prescribe. The
Paying Agent~egistrar covenants to maintain a copy of the Security Register at its offices, or its
agent's offices, located in Houston, Texas. The City covenants to maintain and provide a Paying
Agent/Registrar at all times while the Bonds are Outstanding, and any successor Paying
Agent/Registrar shall be a national or state banking institution or an association or a corporation
organized and doing business under the laws of the United States of America or of any state,
authorized under such laws to exercise trust powers. Such Paying Agent/Registrar shall be subject
to supervision or examination by federal or state authority and authorized by law to serve as a Paying
Agent/Registrar.
The City reserves the right to appoint a successor Paying Agent~egistrar upon providing the
previous Paying Agent~egistrar with a certified copy of a resolution or ordinance terminating such
agency. Additionally, the City agrees to promptly cause a written notice of this substitution to be
sent to each Holder of the Bonds by United States Mail, first-class postage prepaid, which notice
shall also give the address of the new Paying Agent/Registrar.
Both principal of, premium, if any, and interest on the Bonds, due and payable by reason of
Stated Maturity, redemption or otherwise, shall be payable only to the registered owner of the Bonds
appearing on the Security Register (the Holder or Holders) maintained on behalf of the City by the
Paying Agent/Registrar as hereinafter provided (i) on the Record Date (hereinafter defined) for
purposes of payment of interest thereon, and (ii) on the date of surrender of the Bonds for purposes
of receiving payment of principal thereof upon redemption of the Bonds or at the Bonds' Stated
Maturity. The City and the Paying Agent~egistrar, and any agent of either, shall treat the Holder
as the owner of a Bond for purposes of receiving payment and all other purposes whatsoever, and
neither the City nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice
to the contrary.
Principal of, and premium, if any, on the Bonds shall be payable only upon presentation and
surrender of the Bonds to the Paying Agent/Registrar at its corporate trust office. Interest on the
Bonds shall be paid to the Holder whose name appears in the Security Register at the close of
business on the fifteenth day of the month next preceding an Interest Payment Date for the Bonds
(the Record Date) and shall be paid (i) by check sent by United States Mail, first-class postage
prepaid, by the Paying Agent~egistrar, to the address of the Holder appearing in the Security
Register or (ii) by such other method, acceptable to the Paying Agent/Registrar, requested in writing
by the Holder at the Holder's risk and expense.
#45007333vl -4-
If the date for the payment of the principal of, premium, if any, or interest 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 day. The payment on such date
shall have the same force and effect as if made on the original date any such payment on the Bonds
was due.
In the event of a non-payment of interest on a scheduled payment date, and for thirty (30)
days thereafter, a new record date for such interest payment (a Special Record Date) will be
established by the Paying Agent~egistrar, if and when funds for the payment of such interest have
been received from the City. Notice of the Special Record Date and of the scheduled payment date
of the past due interest (the 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 address of each Holder appearing on the Security
Register at the close of business on the last business day next preceding the date of mailing of such
notice.
SECTION 30: Redemption.
A. The Bonds stated to mature on September 1,~ and September 1,~ are referred
to herein as the "Term Bonds". The Term Bonds are subject to mandatory sinking fund redemption
prior to their stated maturities from money required to be deposited in the Bond Fund for such
Purpose and shall be redeemed in part, by lot or other customary method, at the principal amount
thereof plus accrued interest to the date of redemption in the following principal amounts on
September 1 in each of the years as set forth below:
Term Bonds
Stated to Mature
on September 1,
Term Bonds
Stated to Mature
on September 1,
Principal Principal
Year Amount ($) Year Amount ($)
*Payable at Stated Maturity.
The principal amount of a Term Bond required to be redeemed pursuant to the operation of
such mandatory redemption provisions shall be reduced, at the option of the City, by the principal
amount of any Term Bonds of such Stated Maturity which, at least 50 days prior to the mandatory
redemption date (1) shall have been defeased or acquired by the City and delivered to the Paying
#45007333vl -5-
Agent~egistrar for cancellation, (2) shall have been purchased and canceled by the Paying
Agent/Registrar at the request of the City with money in the Bond Fund, or (3) shall have been
redeemed pursuant to the optional redemption provisions set forth below and not theretofore credited
against a mandatory redemption requirement.
B. Optional Redemption. The Bonds having Stated Maturities on and after September 1,
2012 shall be subject to redemption prior to Stated Maturity, at the option of the City, on
September 1, 2011, or on any date thereafter, as a whole or in part, in principal amounts of $5,000
or any integral multiple thereof (and if within a Stated Maturity selected at random and by lot by the
Paying Agent~egistrar), at the redemption price of par plus accrued interest to the date of
redemption.
C. Exercise of Redemption Option. At least forty-five (45) days prior to a date set for
the redemption of Bonds (unless a shorter notification period shall be satisfactory to the Paying
Agent/Registrar), the City shall notify the Paying Agent/Registrar of its decision to exercise the right
to redeem Bonds, the principal amount of each Stated Maturity to be redeemed, and the date set for
the redemption thereof. The decision of the City to exercise the right to redeem Bonds shall be
entered in the minutes of the governing body of the City.
/
D. Selection of Bonds for Redemption. If less thc all Outstanding Bonds of the same
Stated Maturity are to be redeemed on a redemption date, the l~aying Agent/Registrar shall select at
random and by lot the Bonds to be redeemed, provided that if less than the entire principal amount
of a Bond is to be redeemed, the Paying Agent/Registrar shall treat such Bond then subject to
redemption as representing the number of Bonds outstanding which is obtained by dividing the
principal amount of such Bond by $5,000.
E. Notice of Redemption. Not less than thirty (30) days prior to a redemption date for
the Bonds, a notice of redemption shall be sent by United States Mail, first-class postage prepaid,
in the name of the City and at the City'-s expense, by the Paying Agent/Registrar to each Holder of
a Bond to be redeemed, in whole or in part, at the address of the Holder appearing on the Security
Register at the close of business on the business day next preceding the date of mailing such notice,
and any notice of redemption so mailed shall be conclusively presumed to have been duly given
irrespective of whether received by the Holder.
All notices of redemption shall specify the date of redemption for the Bonds, 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, state the redemption price, 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 specify that payment
of the redemption price for the Bonds, or the principal amount thereof to be redeemed, shall be made
at the corporate trust office of the Paying Agent/Registrar only upon presentation and surrender
#45007333vl -6-
thereof by the Holder. If a Bond is subject by its terms to redemption and has been called for
redemption and notice of redemption thereof has been duly given or waived as herein provided, such
Bond (or the principal amount thereof to be redeemed) so called for redemption shall become due
and payable, and if money sufficient for the payment of such Bonds (or of the principal amount
thereof to be redeemed) at the then applicable redemption price is held for the purpose of such
payment by the Paying Agent/Registrar, then on the redemption date designated in such notice,
interest on said Bonds (or the principal amount thereof to be redeemed) called for redemption shall
cease to accrue, and such Bonds shall not be deemed to be Outstanding in accordance with the
provisions of this Ordinance. This notice may also be published once in a financial publication,
journal, or reporter of general circulation among securities dealers in the City of New York, New
York (including, but not limited to, The Bond Buyer and The Wall Street Journal), or in the State of
Texas (including, but not limited to, The Texas Bond Reporter). Additionally, this notice may also
be sent by the City to any registered securities depository and to any national information service that
disseminates redemption notices.
F. Transfer/Exchange. Neither the City nor the Paying Agent/Registrar shall be required
to transfer or exchange any Bond during a period beginning forty-five (45) days prior to the date
fixed for redemption of the Bonds or to transfer or exchange any Bond selected for redemption,
provided; however, such limitation of transfer shall not be applicable to an exchange by the Holder
of the unredeemed balance of a Bond which is subject to redemption in part.
SECTION 31' Execution - Registration. The Bonds shall be executed on behalf of the City
by its Mayor, its seal reproduced or'impressed thereon, and attested by its City Secretary. The
signature of either officer on the Bonds may be manual or facsimile. Bonds bearing the manual or
facsimile signatures of individuals who were, at the time of the Bond Date, the proper officers of the
City shall bind the City, notwithstanding that such individuals or either of them shall cease to hold
such offices prior to the delivery of the Bonds to the Purchaser, all as authorized and provided in
Chapter 1201 and Chapter 1206, as amended, Texas Govemment Code.
No Bond shall be entitled to any right or benefit under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Bond either a certificate of registration
substantially in the form provided in Section 8C, executed by the Comptroller of Public Accounts
of the State of Texas or his duly authorized agent by manual signature, or a certificate of registration
substantially in the form provided in Section 8D, executed by the Paying Agent/Registrar by manual
signature, and either such certificate upon any Bond shall be conclusive evidence, and the only
evidence, that such Bond has been duly certified or registered and delivered.
SECTION 32' Registration- Transfer- Exchange ofBonds- Predecessor Bonds. The Paying
Agent/Registrar shall obtain, record, and maintain in the Security Register the name and address of
every owner of the Bonds, 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 upon the Security Register by the Holder, in person or by his duly authorized agent,
#45007333vl -7-
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~egistrar.
Upon surrender for transfer of any Bond at the corporate trust office of the Paying
Agent/Registrar, the City shall execute and the Paying Agent/Registrar shall register and deliver, in
the name of the designated transferee or transferees, one or more new Bonds of authorized
denomination and having the same Stated Maturity and of a like interest rate and 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 the same series and
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 corporate trust office of the Paying Agent~egistrar. Whenever any
Bonds are so surrendered for exchange, the City shall execute, and the Paying Agent/Registrar shall
register and deliver, the Bonds, to the Holder requesting the exchange.
All Bonds issued upon any transfer or exchange of Bonds shall be delivered at the corporate
trust office of the Paying Agent/Registrar, or be sent by registered mail to the Holder at his request,
risk, and expense, and upon the delivery thereof, the same shall be the valid and binding obligations
of the City, evidencing the same obligation to pay, and entitled to the same benefits under this
Ordinance, as the Bonds surrendered upon such transfer or exchange.
All transfers or exchanges of Bonds pursuant to this Section shall be made without expense
or service charge to the Holder, except as otherwise herein provided, and except that the Paying
Agent/Registrar shall require payment by the Holder requesting such transfer or exchange of any fee,
tax or other governmental charges required to be paid with respect to such transfer or exchange.
Bonds canceled by reason of an exchange or transfer pursuant to the provisions hereof are
hereby defined to be Predecessor Bonds, evidencing all or a portion, as the case may be, of the same
debt evidenced by the new Bond or Bonds registered and delivered in the exchange or transfer
therefor. Additionally, the term Predecessor Bonds shall include any Bond registered and delivered
pursuant to Section 30 in lieu of a mutilated, lost, destroyed, or stolen Bond which shall be deemed
to evidence the same obligation as the mutilated, lost, destroyed, or stolen Bond.
SECTION 33' Initial Bonds(s). The Bonds herein authorized shall be issued initially either
as a single fully-registered Bond in the total principal amount of $5,595,000 with principal
installments to become due and payable as provided in Section 2 and numbered T-1, or as one (1)
fully-registered Bond for each year of Stated Maturity in the applicable principal amount and
denomination and to be numbered consecutively from T-1 and upward (the Initial Bond(s)) and, in
either case, the Initial Bond(s) shall be registered in the name of the initial purchaser or the designee
thereof. The Initial Bond(s) shall be the Bonds submitted to the Office of the Attorney General of
#45007333vl -8-
the State of Texas for approval, certified and registered by the Office of the Comptroller of Public
Accounts of the State of Texas and delivered to the initial purchaser. Any time after the delivery of
the Initial Bond(s), the Paying Agent/Registrar shall cancel the Initial Bond(s) delivered hereunder
and exchange therefor definitive Bonds of authorized denominations, Stated Maturities, principal
amounts and bearing applicable interest rates for transfer and deliwry to th~ Hold~r~ named at the
addresses identified therefor; all pursuant to and in accordance with such written instructions from
the initial purchaser, or the designee thereof, and such other information and documentation as the
Paying Agent~egistrar may reasonably require.
SECTION 34: FORMS.
A. Forms Generally. The Bonds, the Registration Certificate of the Comptroller of
Public Accounts of the State of Texas, the Certificate of Registration, and the form of Assignment
to be printed on each of the Bonds shall be substantially in the forms set forth in this Section with
such appropriate insertions, omissions, substitutions, and other variations as are permitted or
required by this Ordinance and may have such letters, numbers, or other marks of identification
(including insurance legends in the event the Bonds, or any Stated Maturities thereof, are insured and
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, consistent herewith, be established by the
City or determined by the officers executing the Bonds as evidenced by their execution thereof. Any
portion of the text of any Bond 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, produced by any
combination of these methods, or produced in any other similar manner, all as determined by the
officers executing the Bonds as evidenced by their execution thereof, but the Initial Bond(s)
submitted to the Attorney General of Texas may be typewritten or photocopied or otherwise
reproduced.
[The remainder of this page intentionally left blank.]
g45007333vl -9-
B. Form of Definitive Bond.
REGISTERED
NO .........
United States of America
State of Texas
Counties of Bexar, Comal, and Guadalupe
CITY OF SCHERTZ, TEXAS
UTILITY SYSTEM REVENUE AND REFUNDING BONDS,
SERIES 2001
REGISTERED
Bond Date: Interest Rate: Stated Maturity: CUSIP No.
April 1, 2001
REGISTERED OWNER: ........................................................
PRINCIPAL AMOUNT: ............................................... DOLLARS
The City of Schertz, Texas (the City), a body corporate and municipal corporation in the
Coumies of Bexar, Comal, and Guadalupe, State of Texas, for value received, hereby promises to
pay to the order of the Registered Owner specified above, or the registered assigns thereof, on the
Stated Maturity date specified above, the Principal Amount specified above (or so much thereof as
shall not have been paid upon prior redemption), and to pay interest on the unpaid Principal Amount
hereof (computed on the basis of a 360-day year of twelve 30-day months) from the Bond Date
specified above, or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, at the per annum rate specified above; such interest being payable on March 1 and
September 1 of each year commencing September 1, 2001.
Principal and premium, if any, of the Bond shall be payable to the Registered Owner hereof
(the Holder) upon presentation and surrender, at the corporate trust office of the Paying
Agent/Registrar executing the registration certificate appearing hereon or a successor thereof.
Interest shall be payable to the Holder of this Bond (or one or more Predecessor Bonds, as defined
in the Ordinance hereinafter referenced) whose name appears on the Security Register maintained
by the Paying Agent/Registrar at the close of business on the Record Date, which is the fifteenth day
of the month next preceding each interest payment date. All payments of principal of and interest
on this Bond 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. Interest shall be paid by the
Paying Agent/Registrar by check sent on the appropriate date of payment by United States Mail,
first-class postage prepaid, to the Holder hereof at the address appearing in the Security Register or
by such other method, acceptable to the Paying Agent/Registrar, requested by the Holder hereof at
the Holder's risk and expense.
#45007333vl - 1 0-
This Bond is one of the series specified in its title issued in the aggregate principal amount
of $5,595,000 (the Bonds) pursuant to an ordinance adopted by the governing body of the City (the
Ordinance), for the purpose of (i) building, improving, extending, enlarging, or repairing the City's
combined waterworks and sanitary sewer system, (ii) refund the Refunded Obligations, and
(iii) paying the costs of issuing the Bonds. The Bonds are authorized to be issued pursuant to the
authority conferred by and in conformity with the laws of the State of Texas, particularly Chapter
1502, as amended, Texas Government Code, the City's Home Rule Charter, and the Ordinance.
As stated in the Order, the Bonds stated to mature on September 1, and September 1,
are referred to herein as the "Term Bonds". The Term Bonds are subject to mandatory sinking
fund redemption prior to their stated maturities from money required to be deposited in the Bond
Fund for such purpose and shall be redeemed in part, by lot or other customary method, at the
principal amount thereof plus accrued interest to the date of redemption in the following principal
amounts on September 1 in each of the years as set forth below:
Term Bonds
Stated to Mature
on September 1,
Term Bonds
Stated to Mature
on September 1,
Principal Principal
Year Amount ($) Year Amount ($)
*Payable at Stated Maturity.
The principal amount of a Term Bond required to be redeemed pursuant to the operation of
such mandatory redemption provisions shall be reduced, at the option of the City, by the principal
amount of any Term Bonds of such Stated Maturity which, at least 50 days prior to the mandatory
redemption date (1) shall have been defeased or acquired by the City and delivered to the Paying
Agent/Registrar for cancellation, (2) shall have been purchased and canceled by the Paying
Agent~egistrar at the request of the City with money in the Bond Fund, or (3) shall have been
redeemed pursuant to the optional redemption provisions set forth below and not theretofore credited
against a mandatory redemption requirement.
The Bonds stated to mature on and after September 1, 2012 may be redeemed prior to their
Stated Maturities, at the option of the City, on September 1,2011, or on any date thereafter, in whole
or in part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated
Maturity selected at random and by lot bythe Paying Agent/Registrar) at the redemption price ofpar,
together with accrued interest to the date of redemption, and upon thirty (30) days prior written
notice being given by United States Mail, first-class postage prepaid, to Holders of the Bonds to be
#45007333vl -11-
redeemed, and subject to the terms and provisions relating thereto contained in the Ordinance. If this
Bond is subject to redemption prior to Stated Maturity and is in a denomination in excess of $5,000,
portions of the principal sum hereof in installments of $5,000 or any integral multiple thereof may
be redeemed, and, if less than all of the principal sum hereof is to be redeemed, there shall be issued,
without charge therefor, to the Holder hereof, upon the surrender of this Bond to the Paying
Agent/Registrar at its corporate trust office, a new Bond or Bonds of like Stated 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 (or any portion of the principal sum hereof) shall have been duly called for
redemption and notice of such redemption duly given, then upon such redemption date this Bond (or
the portion of the principal sum hereof to be redeemed) shall become due and payable, and, if money
for the payment of the redemption price and the interest accrued on the principal amount to be
redeemed to the date of redemption is held for the purpose of such payment by the Paying
Agent/Registrar, interest shall cease to accrue and be payable hereon from and after the redemption
date on the principal amount hereof to be redeemed. If this Bond is called for redemption, in whole
or in part, the City or the Paying Agent/Registrar shall not be required to issue, transfer, or exchange
this Bond within forty-five (45) days of the date fixed for redemption; provided, however, such
limitation of transfer shall not be applicable to an exchange bythe Holder of the unredeemed balance
hereof in the event of its redemption in part.
The Bonds of this series are special obligations of the City payable from and equally and
ratably secured solely by a first and prior lien on and pledge of the net revenues (the Net Revenues)
derived from the operation of the City's combined waterworks and sewer system (the System). In
the Ordinance, the City reserves and retains the right to issue Additional Prior Lien Obligations,
Additional Junior Lien Obligations, Subordinate Lien Obligations, and Additional Limited Pledge
Obligations, without limitation as to principal amount but subject to any terms, conditions, or
restrictions set forth in the Ordinance or as may be applicable thereto under law or otherwise. The
Bonds do not constitute a legal or equitable pledge, charge, lien, or encumbrance upon any property
of the City or 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.
Reference is hereby made to the Ordinance, copies of which are on file in the corporate trust
office of the Paying Agent/Registrar, and to all of the provisions of which the Holder by his
acceptance hereof hereby assents, for definitions of terms; the description and nature of the Net
Revenues of the System pledged for the payment of the Bonds; the terms and conditions under which
the City may issue Additional Prior Lien Obligations, Additional Junior Lien Obligations,
Subordinate Lien Obligations, and Additional Limited Pledge Obligations; the terms and conditions
relating to the transfer or exchange of the Bonds; the conditions upon which the Ordinance may be
amended or supplemented with or without the consent of the Holders; the rights, duties, and
#45007333vl -12-
obligations of the City and the Paying Agent/Registrar; the terms and provisions upon which this
Bond may be redeemed or discharged at or prior to the Stated Maturity thereof, and deemed to be
no longer Outstanding thereunder; and for the other terms and provisions specified in the Ordinance.
Capitalized terms used herein have the same meanings assigned in the Ordinance.
This Bond, subject to certain limitations contained in the Ordinance, may be transferred on
the Security Register upon presentation and surrender at the corporate trust office of the Paying
Agent/Registrar, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Paying Agent/Registrar duly executed bythe Holder hereof, or his duly authorized
agent, and thereupon one or more new fully registered Bonds of the same Stated Maturity, of
authorized denominations, bearing the same rate of interest, and of the same aggregate principal
amount will be issued to the designated transferee or transferees.
The City and the Paying Agent/Registrar, and any agent of either, shall treat the Holder
hereof whose name appears on the Security Register on the Record Date as the owner hereof for
purposes of receiving payment of interest hereon, on the date of surrender of this Bond as the owner
hereof for purposes of receiving payment of principal hereof at its Stated Maturity, or its redemption,
in whole or in part, and on any other date as the owner hereof for all other purposes, and neither the
City nor the Paying Agent~egistrar, or any such agent of either, shall be affected by notice to the
contrary. In the event of a non-payment of interest on a scheduled payment date, and for thirty (30)
days thereafter, a new record date for such interest payment (a Special Record Date) will be
established by the Paying Agent~egistrar, if and when funds for the payment of such interest have
been received from the City. Notice of the Special Record Date and of the scheduled payment date
of the past due interest (the 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 address of each Holder appearing on the Security
Register at the close of business on the last business day next preceding the date of mailing of such
notice.
It is hereby certified, covenanted, and represented that all acts, conditions, and things required
to be performed, exist, and be done precedent to the issuance of this Bond in order to render the same
a legal, valid, and binding special obligation of the City have been performed, exist, and have been
done, in regular and due time, form, and manner, as required by law, and that issuance of the Bonds
does 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 and lien on the Net
Revenues of the System. In case any provision in this Bond or any application thereof shall be
deemed invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining
provisions and applications shall not in any way be affected or impaired thereby. The terms and
provisions of this Bond and the Ordinance shall be construed in accordance with and shall be
governed by the laws of the State of Texas.
#45007333vl - 1 3-
IN WITNESS WHEREOF, the City Council of the City has caused this Bond to be duly
executed under the official seal of the City.
CITY OF SCHERTZ, TEXAS
ATTESTED:
By
Mayor
City Secretary
(CITY SEAL)
C. *Form of Registration Certificate of Comptroller of Public Accounts to Appear on
Initial Bond(s) Only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER §
OF PUBLIC ACCOUNTS §
THE STATE OF TEXAS
REGISTER NO.
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
(SEAL)
* Note to Printer: Not to appear on printed Bonds
Comptroller of Public Accounts
of the State of Texas
#45007333vl -' 14-
De
Form of Certificate of Paying Agent/Registrar to Appear on Definitive Bonds Only.
This Bond has been duly issued under the provisions of the within-memioned Ordinance; the
Bond or Bonds of the above-entitled and designated series originally delivered having been approved
by the Attorney General of the State of Texas and registered by the Comptroller of Public Accounts,
as shown by the records of the Paying Agent/Registrar.
THE BANK OF NEW YORK,
as Paying Agent~egistrar
Registered this date:
By
Authorized Officer
me
Form of Assignment.
ASSIGNMENT
FOR VALUE RECE1VED the undersigned hereby sells, assigns, and transfers unto (Print
or typewrite name, address, and zip code of transferee):
(Social Security or other identifying number:
Bonds and all rights thereunder, and hereby irrevocably constitutes and appoints
) the within
attomey to transfer the within Bond on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
NOTICE: The signature on this assignment
must correspond with the name of the
registered owner as it appears on the face of
the within Bond in every particular.
Signature guaranteed:
#45007333vl -1 5-
F. The Initial Bond(s) shall be in the form set forth in paragraph B of this Section~ except
that the form of a single fully registered Initial Bond shall be modified as follows:
(i)
immediately under the name of the Bond(s) the headings "Interest Rate" and
"Stated Maturity" shall both be completed "as shown below";
(ii)
the first two paragraphs shall read as follows:
Registered Owner: ..............................................................
Principal Amount: ..............................................................
The City of Schertz, Texas (the City), a body corporate and municipal corporation in the
Counties of Bexar, Comal, and Guadalupe, 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
Principal Amount specified above on the first day of September in each of the years and in principal
amounts and bearing interest at per annum rates in accordance with the following schedule'
YEARS OF
STATED MATURITY
PRINCIPAL
AMOUNTS ($)
INTEREST
RATES (%)
(Information to be inserted from
schedule in Section 2 hereof).
(or so much thereof as shall not have been paid upon prior redemption) and to pay interest on the
unpaid Principal Amount hereof from the Bond Date at the per annum rate of interest specified above
computed on the basis of a 360-day year of twelve 30-day months; such interest being payable on
March 1 and September 1 of each year, commencing September 1, 2001.
Principal of this Bond shall be payable to the Registered 'Owner hereof (the Holder), upon
its presentation and surrender, at the corporate trust office of The Bank of New York, New York,
New York (the Paying Agent/Registrar). Interest shall be payable to the Holder of this Bond whose
name appears on the Security Register maintained by the Paying Agent/Registrar at the close of
business on the Record Date, which is the fifteenth day of the month next preceding each interest
payment date. All payments of principal of and interest on this Bond 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. Interest shall be paid by the Paying Agent/Registrar by check sent on or
prior to the appropriate date of payment by United States Mail, first-class postage prepaid, to the
Holder hereof at the address appearing in the Security Register or by such other method, acceptable
to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder hereof.
#45007333vl - 16-
G. Insurance Legend. If bond insurance is obtained by the Purchaser or the City for the
Bonds, the definitive Bonds and the Initial Bond(s) shall bear an appropriate legend as provided by
the insurer.
SECTION 35: Definitions. For all purposes of this Ordinance (as defined below), except as
otherwise expressly provided or unless the context otherwise requires: the terms defined in this
Section have the meanings assigned to them in this Section, and certain terms used in Section 32 of
this Ordinance have the meanings assigned to them in such Section, and all such terms include the
plural as well as the singular; all references in this Ordinance to designated "Sections" and other
subdivisions are to the designated Sections and other subdivisions of this Ordinance as originally
adopted; and the words "herein", "hereof', and "hereunder" and other words of similar import refer
to this Ordinance as a whole and not to any particular Section or other subdivision.
(a) The term Additional Junior Lien Obligations shall mean (i) any bonds, notes,
warrants, certificates of obligation or any similar obligations hereafter issued bythe City that
are payable wholly or in part from and equally and ratably secured by a lien on and pledge
of the Net Revenues of the System, such pledge being junior and inferior to the lien on and
pledge of the Net Revenues of the System that are or will be pledged to the payment of the
Bonds and any Additional Prior Lien Obligations hereafter issued by the City, but prior and
superior to the lien on and pledge of the Net Revenues of the System that are or will be
pledged to the payment of the Limited Pledge Obligations and any Additional Limited Pledge
Obligations and Subordinate Lien Obligations hereafter issued by the City all as further
provided in Section 20 of this Ordinance and (ii) obligations hereafter issued to refund any
of the foregoing that are payable from and equally and ratably secured by a junior lien on and
pledge of the Net Revenues as determined by the City Council in accordance with any
applicable law.
(b) The term Additional Limited Pledge Obligations shall mean (i) any bonds,
notes, warrants, certificates of obligation or other obligations hereafter issued by the City
payable wholly or in part from a pledge of and lien on Net Revenues of the System which
pledge of revenues is made subject to the limitations previously contained in Texas Revised
Civil Statutes Annotated Article 1112, as amended, all as further provided in Section 20 of
this Ordinance, and (ii) obligations issued to refund any of the foregoing as determined by
the City Council in accordance with any applicable law.
(c) The term Additional Prior Lien Obligations shall mean (i) bonds, notes,
warrants, certificates of obligation, or other evidences of indebtedness which the City
reserves the right to issue or enter into, as the case may be, in the future under the terms and
conditions provided in Section 18 of this Ordinance and which obligations or evidences of
indebtedness are equally and ratably secured solely by a first and prior lien on and pledge of
the Net Revenues, and (ii) obligations hereafter issued to refund any of the foregoing if
#45007333vl - 1 7-
issued in a manner so as to be payable fi'om and equally and ratably secured by a first and
prior lien on and pledge of the Net Revenues.
(d) The terrnAverageAnnualDebt Service Requirements shall mean that average
amount which, at the time of computation, will be required to pay the Debt Service
Requirements on all outstanding Bonds Similarly Secured when due (either at Stated
Maturity or mandatory redemption) and derived by dividing the total of such Debt Service
Requirements by the number of Fiscal Years then remaining before Stated Maturity of such
Bonds Similarly Secured. For the purposes of this definition, a fractional period of a Fiscal
Year shall be treated as an entire Fiscal Year. Capitalized interest payments provided from
bond proceeds and accrued interest on any Bonds Similarly Secured shall be excluded in
making the aforementioned computation.
(e) The term Bond Fund shall mean the special Fund created and established by
the provisions of Section 13 of this Ordinance.
(f) The term Bonds shall mean the $5,595,000 "CITY OF SCHERTZ, TEXAS
UTILITY SYSTEM REVENUE AND REFUNDING BONDS, SERIES 2001, dated April 1,
2001, authorized by this Ordinance.
(g) The term Bonds Similarly Secured shall mean the Bonds and any Additional
Prior Lien Obligations hereafter issued by the City or bonds issued to retired any of the
foregoing if issued in a manner that provides that.the refunding bonds are payable from and
equally and ratably secured by a first and prior lien on and pledge of the Net Revenues.
(h) The term City shall mean the City of Schertz, Texas, located in the Counties
ofBexar, Comal, and Guadalupe, Texas and, where appropriate, the City Council of the City.
(i) The term Closing Date shall mean shall mean the date of physical delivery
of the Initial Bonds in exchange for the payment in full by the Purchaser.
(j) The term Debt Service Requirements shall mean as of any particular date of
computation, with respect to any obligations and with respect to any period, the aggregate
of the amounts to be paid or set aside by the City as of such date or in such period for the
payment of the principal of, premium, if any, and interest (to the extent not capitalized) on
such obligations; assuming, in the case of obligations without a fixed numerical rate, that
such obligations bear interest at the maximum rate permitted bythe terms thereof and further
assuming in the case of obligations required to be redeemed or prepaid as to principal prior
to stated maturity, the principal amounts thereof will be redeemed prior to stated maturity in
accordance with the mandatory redemption provisions applicable thereto.
(k)
The term Depository shall mean an official depository bank of the City.
~45007333v~ - 18-
(1) The term Fiscal Year shall mean the twelve month accounting period used
by the City in connection with the operation of the System, currently ending on September
30th of each year, which may be any twelve consecutive month period established by the
City, but in no event may the Fiscal Year be changed more than one time in any three
calendar year period.
(m) The term Government Securities shall mean (i) direct noncallable obligations
of the United States, including obligations that are unconditionally guaranteed by, the United
States of America; (ii) noncallable obligations of an agency or instrumentality of the United
States, including obligations that are unconditionally guaranteed or insured by the agency or
instrumentality and that, on the date the governing body of the issuer adopts or approves the
proceedings authorizing the issuance ofrefimding bonds, are rated as to investment quality
by a nationally recognized investment rating firm not less than AAA or its equivalent; or (iii)
noncallable obligations of a state or an agency or a county, municipality, or other political
subdivision of a state that have been refunded and that, on the date the governing body of the
issuer adopts or approves the proceedings authorizing the issuance of refunding bonds, are
rated as to investment quality by a nationally recognized investment rating firm not less than
AAA or its equivalent.
(n) The term Gross Revenues shall mean all income, receipts, and revenues of
every nature derived or received from the operation and ownership (excluding refundable
meter deposits, restricted gifts, and grants in aid of construction) of the System.
(o) The term Holder or Holders shall mean the registered owner, whose name
appears in the Security Register, for any Bond.
(p) The term Inferior Lien Obligations shall mean the currently outstanding
Junior Lien Obligations and Limited Pledge Obligations or any Additional Junior Lien
Obligations, Subordinate Lien Obligations, or Additional Limited Pledge Obligations
hereafter issued by the City.
(q) The term Interest Payment Date shall mean the date semiannual interest is
payable on the Bonds, being March 1 and September 1 of each year, commencing
September 1, 2001, while any of the Bonds remain Outstanding.
(r) The term Junior Lien Obligations shall mean (i) the outstanding and unpaid
obligations of the City that are payable, in part, fi'om and equally and secured by a junior and
inferior lien on and pledge of the Net Revenues of the System and designated as follows:
(1) "City of Schertz, Texas Combination Tax and
Junior Lien Revenue Certificates of Obligation, Series
#45007333vl -19-
1992", dated December 1, 1992, in the original
principal amount of $200,000;
and (ii) obligations hereafter issued to retired any of the foregoing that are payable
from and secured by a junior and inferior lien on and pledge of the Net Revenues of
the System as determined by the City Council in accordance with any applicable law.
(s) The term Limited Pledge Obligations shall mean (i) the outstanding and
unpaid obligations of the City that are payable, in part, from and secured by a subordinate
and inferior lien on and pledge of a limited amount of the Net Revenues of the System and
designated as follows:
(1) "City of Schertz, Texas Combination Tax and Limited Pledge Revenue
Certificates of Obligation, Series 1990, dated February 1, 1990, in the original
principal amount of $850,000;
and (ii) obligations hereafter issued to refund any of the foregoing as determined by the City
Council in accordance with any applicable law.
(t) The term Maintenance and Operating Expenses shall mean (i) Maintenance
and Operating Expenses include all current expenses of operating and maintaining the
System as authorized by the provisions of Chapter 1502, as amended, Texas Government
Code, including, but not limited to, all salaries, labor, materials, repairs and extensions
necessary to render efficient service; provided, however, that only such repairs and
extensions, as in the judgment of the City Council, reasonably and fairly exercised, are
necessary to maintain the operations and render adequate service to the City and the
inhabitants thereof, or such as might be necessary to meet some physical accident or
condition which would otherwise impair obligations payable from Net Revenues shall be
deducted in determining Net Revenues; (ii) Depreciation, amortization, or other expenditures
which, under standard accounting practice, should be charged to capital expenditures shall
not constitute or be regarded as Maintenance and Operating Expenses of the System; (iii)
Payments required to be made by the City for water supply or water facilities, sewer services
or sewer facilities, or fuel supply which payments under law constitute operation and
maintenance expenses of any part of the System, shall constitute and be regarded as
Maintenance and Operating Expenses of the System under this Ordinance.
(u) The term Net Revenues shall mean Gross Revenues of the System, with
respect to any period, after deducting the System's Maintenance and Operating Expenses
during such period.
(v) The term Ordinance shall mean this ordinance adopted by the City Council
on March 28, 2001.
g45007333vl -20-
(w) The term Outstanding shall mean when used in this Ordinance with respect
to Bonds means, as of the date of determination, all Bonds issued and delivered under this
Ordinance, except:
(1) those Bonds canceled by the Paying Agent~egistrar or delivered to
the Paying Agent/Registrar for cancellation;
(2) those Bonds for which payment has been duly provided by the City
in accordance with the provisions of Section 35 of this Ordinance by the
irrevocable deposit with the Paying Agent/Registrar, or an authorized escrow
agent, of money or Government Securities, or both, in the amount necessary
to fully pay the principal of, premium, if any, and interest thereon to maturity
or redemption, as the case may be, provided that, if such Bonds are to be
redeemed, 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~egistrar, or waived; and
(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 30 of this ordinance..
(x) The term Purchaser shall mean the initial purchaser or purchasers of the
Bonds named in Section 33 of this Ordinance.
(y) The term Required Reserve Amount shall mean the amount required to be
deposited and maintained in the Reserve Fund under the provisions of Section 14 of this
Ordinance.
(z) The term Required Reserve Fund Deposits shall mean the monthly deposited
required to be deposited and maintained in the Reserve Fund under the provisions of Section
14 of this Ordinance.
(aa) The term Stated Maturity shall mean the annual principal payments of the
Bonds payable on September 1 of each year, as set forth in Section 2 of this Ordinance.
(bb) The term Subordinate Lien Obligations shall mean (i) any bonds, notes,
warrants, certificates of obligation or any similar obligations hereafter issued bythe City that
are payable wholly or in part from and equally and ratably secured by a subordinate and
inferior lien on and pledge of the Net Revenues of the System, such pledge being subordinate
and inferior to the lien on and pledge of the Net Revenues of the System that are or will be
pledged to the payment of the Bonds and the Junior Lien Obligations, or any Additional Prior
Lien Obligations or Additional Junior Lien Obligations hereafter issued bythe City, but prior
#45007333vl -21-
and superior to the lien on and pledge of the Net Revenues of the System that are or will be
pledged to the payment of the currently outstanding Limited Pledge Obligations and any
Additional Limited Pledge Obligations hereafter issued by the City, all as further provided
in Section 20 of the Ordinance, and (ii) any obligations issued to refund the foregoing that
are payable from and equally and ratably secured by a subordinate and inferior lien on and
pledge of the Net Revenues of the System as determined by the City Council in accordance
with any applicable law.
(cc) The term System shall mean all properties, facilities and plants currently
owned, operated, and maintained by the City for the supply, treatment, and transmission of
treated potable water, for the collection and treatment ofwastewater, together will all future
extensions, improvements, replacements and additions thereto, whether situated within or
without the limits of the City; 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 payable from Net Revenues but which are payable from and equally
and ratably secured by other liens on and pledges of any revenues, sources or payments, not
pledged to the payment of the Bonds Similarly Secured including, but not limited to, special
contract revenues or payments received from any other legal entity in connection with such
facilities.
SECTION 36' Pledge of Net Revenues. The City hereby covenants and agrees that the Net
Revenues of the System are hereby irrevocably pledged to the payment and security of the Bonds
Similarly Secured including the establishment and maintenance of the special funds or accounts
created and established for the payment and security thereof, all as hereinafter provided; and it is
hereby ordained that the Bonds Similarly Secured, and the interest thereon, shall constitute a first
and prior lien on and pledge of the Net Revenues of the System and be valid and binding without any
physical delivery thereof or further act by the City.
SECTION 37: Rates and Charges. For the benefit of the Holders of the Bonds Similarly
Secured and in addition to all provisions and covenants in the laws of the State of Texas and in this
Ordinance, the City hereby expressly stipulates and agrees, while any of the Bonds Similarly Secured
are Outstanding, to establish and maintain rates and charges for facilities and services afforded by
the System that are reasonably expected, on the basis of available information and experience and
with due allowance for contingencies, to produce Gross Revenues in each Fiscal Year sufficient:
A. to pay all Maintenance and Operating Expenses, or any expenses required by statute
to be a first claim on and charge against the Gross Revenues of the System;
#45007333vl -22-
B. to produce Net Revenues, together with any other lawfully available funds, 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 or account created for the payment and security of the
Bonds Similarly Secured, and any other obligations or evidences of indebtedness issued or incurred
that are payable from and secured by a prior and first lien on an pledge of the Net Revenues of the
System;
C. to produce Net Revenues, together with any other lawfully available funds, sufficient
to pay the principal of and interest on the Junior Lien Obligations and any Additional Junior Lien
Obligations hereafter issued by the City as the same become due and payable and to deposit the
amounts required to be deposited in any special fund or account created and established for the
payment and security of the Junior Lien Obligations and any Additional Junior Lien Obligations
hereafter issued by the City, and any other obligations or evidences of indebtedness issued or
incurred that are payable from and secured by a junior lien on and pledge of the Net Revenues of the
System;.
D. to produce Net Revenues, together with any other lawfully available fimds, sufficient
to pay the principal of and interest on any Subordinate Lien Obligations hereafter issued by the City
as the same become due and payable and to deposit the amounts required to be deposited in any
special fund or account created and established for the payment and security of any Subordinate Lien
Obligations hereafter issued by the City, and any other obligations or evidences of indebtedness
issued or incurred that are payable from and secured by a subordinate lien on and pledge of the Net
Revenues of the System;
E. to produce Net Revenues, together with any other lawfully available funds, sufficient
to pay the principal of and interest on the Limited Pledge Obligations or any Additional Limited
Pledge Obligations hereafter issued by the City as the same become due and payable and to deposit
the amounts required to be deposited in any special fund or account created and established for the
payment and security of the Limited Pledge Obligations and any Additional Limited Pledge
Obligations, and any other obligations or evidences of indebtedness issued or incurred that are
payable from and secured by a limited pledge of the Net Revenues of the System; and
F. to pay, together with any other lawfully available funds, any other legally incurred
indebtedness payable fi'om the Net Revenues of the System and/or secured by a lien on the System.
SECTION 38: System Fund. The Cityhereby covenants, agrees, and reaffirms that the Gross
Revenues of the System shall be deposited, as collected and received, into a separate Fund or account
to be created, established, and maintained with the Depository known as the "City of Schertz, Texas
Utility System Revenue and Refunding Funds" (the System Fund) and that the Gross Revenues of
the System shall be kept separate and apart from all other funds of the City. All Gross Revenues
deposited into the System Fund shall be pledged and appropriated to the extent required for the
following uses and in the order of priority shown:
#45007333vl -23-
FIRST: to the payment of all necessary and reasonable Maintenance and
Operating Expenses as defined herein or required by statute to be a first
charge on and claim against the Gross Revenues of the System.
SECOND: to the payment of the amounts required to be deposited into the
Bond Fund created and established for the payment of the Bonds Similarly
Secured as the same become due and payable.
THIRD- to the payment of the amounts required to be deposited into the
Reserve Fund (hereinafter defined) created and established to maintain the
mounts required to be deposited in accordance with the provisions of this
Ordinance.
FOURTH: to the payment of the amounts required to be deposited into the funds
created and established for the payment, security, and benefit of the Inferior Lien
Obligations as the same become due and payable.
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 appropriated and used
for any other City purpose now or hereafter permitted by law.
SECTION 39: Bond Fund; Excess Bond Proceeds. For purposes of providing funds to pay
the principal of and interest on the Bonds as the same become due and payable, the City agrees to
maintain, at the Depository, a separate and special Fund or account to be created and known as the
"City of Schertz, Texas Utility System Revenue and Refunding Bonds, Series 2001 Interest and
Sinking Fund" (the Bond Fund). The City covenants that there shall be deposited into the Bond
Fund prior to each principal and interest payment date from the available Net Revenues an amount
equal to one hundred per cent (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 and
accrued interest on the Bonds to be made in substantially equal monthly installments on or before
the tenth day of each month, beginning on or before the tenth day of the month next following the
delivery of the Bonds to the Purchaser. If the Net Revenues in any month are insufficient to make
the required payments into the Bond Fund, then the amount of any deficiency in such payment shall
be added to the amount otherwise required to be paid into the Bond Fund in the next month.
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 (principal and interest) or, (ii) the Bonds are no longer
Outstanding.
#45007333vl -24-
Accrued interest and premium, if any, received from the Purchaser shall be taken into
consideration and reduce the amount of the monthly deposits hereinabove required to be deposited
into the Bond Fund from the Net Revenues of the System. Additionally, any proceeds of the Bonds,
and investment income thereon, not expended for authorized purposes shall be deposited into the
Bond Fund and shall be taken into consideration and reduce the amount of monthly deposits required
to be deposited into the Bond Fund from the Net Revenues of the System.
SECTION 40: Reserve Fund. To accumulate and maintain a reserve for the payment of the
Bonds (the Required Reserve Amount) equal to the Average Annual Debt Service Requirements
(calculated on a Fiscal Year basis and determined as of the date of issuance of the Bonds or the most
recently issued series of Additional Prior Lien Obligations then Outstanding) for the Bonds, the City
agrees to create, establish, and maintain a separate and special fimd or account known as the "City
of Schertz, Utility System Revenue and Refunding Bond Reserve Fund" (the Reserve Fund), which
fund or account shall be maintained at the Depository. All funds deposited into the Reserve Fund
(excluding earnings and income derived or received from deposits or investments which will be
transferred to the System Fund established in Section 12 of this Ordinance during such period as
there is on deposit in the Reserve Fund the Required Reserve Amount) shall be used solely for the
payment of the principal of and interest on the Bonds, when and to the extent other funds available
for such purposes are insufficient, and, in addition, may be used to retire the last stated maturity or
interest on the Bonds.
Until the issuance of any Additional Prior Lien Obligations, the Required Reserve Amount
shall be $ , which shall be accumulated, if necessary, in the following manner.
Beginning on or before the tenth day of the month next following the delivery of the Bonds to the
Purchaser and on or before the tenth day of each following month until the Required Reserve
Amount has been accumulated in the Reserve Fund, the City covenants and agrees to deposit to the
Reserve Fund from the Net Revenues of the System, or any other lawfully available funds, an
amount not less than $ being the'Required Reserve Fund Deposits.
As and when Additional Prior Lien Obligations are delivered or incurred, the Required
Reserve Amount shall be increased, if required, to an amount calculated in the manner provided in
the first paragraph of this Section. Any additional amount required to be maintained in the Reserve
Fund shall be so accumulated by the deposit of the necessary amount of the proceeds of the issue or
other lawfully available funds in the Reserve Fund immediately after the delivery of the then
proposed Additional Prior Lien Obligations, or, at the option of the City, by the deposit of monthly
installments, made on or before the tenth day of each month following the month of delivery of the
then proposed Additional Prior Lien Obligations, of not less than 1/60th of the additional amount
to be maintained in the Reserve Fund by reason of the issuance of the Additional Prior Lien
Obligations then being issued (or 1/60th of the balance of the additional amount not deposited
immediately in cash), thereby ensuring the accumulation of the appropriate Required Reserve
Amount.
#45007333vl -25-
When and so long as the cash and investments in the Reserve Fund equal the Required
Reserve Amount, 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 Amount (other than as the result
of the issuance of Additional Prior Lien Obligations as provided in the preceding paragraph), the
City covenants and agrees to cure the deficiency in the Required Reserve Amount by resuming the
Required Reserve Fund Deposits to said Fund or account from the Net Revenues of the System, or
any other lawfully available funds, such monthly deposits to be in amounts equal to not less than
1/60th of the Required Reserve Amount covenanted by the City to be maintained in the Reserve
Fund with any such deficiency payments being made on or before the tenth day of each month until
the Required Reserve Amount has been fully restored. The City ft~her covenants and agrees that,
subject only to the prior payments to be made to the Bond Fund and as required by the ordinances
authorizing the issuance of any Additional Prior Lien Obligations hereafter issued by the City, the
Net Revenues shall be applied and appropriated and used to establish and maintain the Required
Reserve Amount 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 any Additional Prior Lien
Obligations.
During such time as the Reserve Fund contains the Required Reserve Amount, the City may,
at its option, withdraw all surplus funds in the Reserve Fund in excess of the Required Reserve
Amount and deposit such surplus in the System Fund.
The City expressly reserves the right at any time to fund the Reserve Fund at the Required
Reserve Amount by purchasing an insurance policy that will unconditionally obligate the insurance
company or other entity to pay all, or any part thereof, of the Required Reserve Amount in the event
funds on deposit in the Bond Fund are not sufficient to pay the debt service requirements on the
Bonds. All ordinances adopted after the date hereof authorizing the issuance of Additional Prior
Lien Obligations shall contain a provision to this effect.
In the event an insurance policy issued to satisfy all or part of the City's obligation with
respect to the Reserve Fund causes the amount then on deposit in the Reserve Fund to exceed the
Required Reserve Amount, the City may transfer such excess amount to any fund or account
established for the payment of or security for the Bonds (including any escrow established for the
final payment of any such obligations pursuant to Chapter 1207, as amended, Texas Government
Code) or use such excess amount for any lawful purpose now or hereafter provided by law; provided,
however, to the extent that such excess amount represents Bond proceeds, then such amount must
be transferred to the Bond Fund.
#45007333vl -26-
SECTION 41' Deficiencies - Excess Net Revenues.
A. If on any occasion there shall not be sufficient Net Revenues of the System to make
the required deposits into the Bond Fund and the Reserve Fund, then such deficiency shall be cured
as soon as possible from the next available unallocated Net Revenues of the System, or from any
other sources available for such purpose, and such payments shall be in addition to the amounts
required to be paid into these Funds or accounts during such month or months.
B. Subject to making the required deposits to the Bond Fund and the Reserve Fund when
and as required by this Ordinance, or any ordinance authorizing the issuance of any Additional Prior
Lien Obligations, or the payments required by the provisions of the ordinances authorizing the
issuance of the currently outstanding Inferior Lien Obligations, the excess Net Revenues of the
System may be used by the City for any lawful purpose.
SECTION 42: Payment of Bonds. While anyofthe Bonds are outstanding, the City Manager
or other authorized City official, shall cause to be transferred to the Paying Agent/Registrar therefor,
from funds on deposit in the Bond Fund, and, if necessary, in the Reserve Fund, amounts sufficient
to fully pay and discharge promptly each installment of interest on and principal of the Bonds
Similarly Secured as such installment accrues or matures; such transfer of funds must be made in
such manner as will cause immediately available funds to be deposited with the Paying
Agent/Registrar for the Bonds at the close of the business day next preceding the date a debt service
payment is due on the Bonds.
SECTION 43: Investments. Funds held in any Fund or account created, established, or
maintained pursuant to this Ordinance, at the option of the City, shall be invested as permitted by
the provisions of the Public Funds Investment Act, as amended, Chapter 2256, Texas Government
Code, or any other law, and secured (to the extent not insured by the Federal Deposit Insurance
Corporation) by obligations of the type hereinafter described, including investments held in book-
entry form, in securities including, but not limited to, 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 Land Banks, Federal Intermediate Credit Banks, Banks for Cooperatives,
Federal Home Loan Banks, Government National Mortgage Association, Farmers Home
Administration, Federal Home Loan Mortgage Association, or Federal Housing Association;
provided that all such deposits and investments shall be made in such a manner that the money
required to be expended from any Fund or account 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 each ordinance authorizing the issuance of
#45007333vl -27-
any Additional Prior Lien Obligations. All interest and income derived from deposits and
investments in the Bond Fund immediately shall be credited to, and any losses debited to, the Bond
Fund. All interest and interest income derived from deposits in and investments of the Reserve Fund
shall, subject to the limitations provided in Section 14, be credited to and deposited in the System
Fund. All such investments shall be sold promptly when necessary to prevem any default in
connection with the Bonds.
SECTION 44: Issuance of Additional Prior Lien Obligations. In addition to the right to issue
Additional Junior Lien Obligations, Subordinate Lien Obligations, and/or Additional Limited Pledge
Obligations as authorized by Section 20 hereof and any laws of the State of Texas, the City reserves
the right hereafter to issue Additional Prior Lien Obligations. The Additional Prior Lien Obligations,
when issued in compliance with the terms and conditions hereinafter prescribed, shall be payable
from and equally and ratably secured by a first and prior lien on and pledge of the Net Revenues of
the System in the same manner and to the same extent as the Bonds. The Additional Prior Lien
Obligations may be issued in one or more installments, provided, however, that none shall be issued
unless and until the following conditions have been met:
A. except for a refimding to cure a default, or the deposit of a portion of the proceeds of
any Additional Prior Lien Obligations to satisfy the City's obligations under this Ordinance, the City
is not then in default as to any covenant, condition, or obligation prescribed in this Ordinance or in
the ordinances authorizing the issuance of the then outstanding Bonds Similarly Secured;
B. the laws of the State of Texas in force at such time provide for the issuance of the
Additional Prior Lien Obligations;
C. the City has secured from a Certified Public Accountant a certificate or opinion to the
effect that, the Net Revenues of the System, for the preceding Fiscal Year or for any 12 consecutive
calendar month period ending not more than ninety (90) days preceding the month the ordinance
authorizing the Additional Prior Lien Obligations is adopted, are at least equal to one hundred and
twenty-five percent (125%) of the Average Annual Debt Service Requirements for the payment of
principal of and interest on all outstanding Bonds Similarly Secured after giving effect to the
issuance of the Additional Prior Lien Obligations then proposed. In making a determination of the
Net Revenues, the Accountant may take into consideration a change in the rates and charges for
services and facilities afforded by the System that became effective not more than ninety (90) days
prior to adoption of the ordinance authorizing the issuance of the Additional Prior Lien Obligations
and, for purposes of satisfying the Net Revenues test, make a pro forma determination of the Net
Revenues for the period of time covered by his certification or opinion based on such change in rates
and charges being in effect for the entire period covered by the Accountant's certificate or opinion.
D. the ordinance authorizing the issuance of the Additional Prior Lien Obligations
provides for deposits to be made to the Bond Fund in amounts sufficient to pay the principal of and
interest on such Additional Prior Lien Obligations as the same mature.
#45007333vl -28-
E. the ordinance authorizing the issuance of the Additional Prior Lien Obligations
provides that the amount to be accumulated and maintained in the Reserve Fund shall be in an
amount equal to not less than the Required Reserve Amount after giving effect to the issuance of the
proposed Additional Prior Lien Obligations, and provides that any additional amount to be
maintained in the Reserve Fund shall be accumulated within sixty (60) months from the date the
Additional Prior Lien Obligations are delivered.
All such Additional Prior Lien Obligations provided for in this Section, when issued in
accordance with the above, shall be payable from and equally and ratably secured by a first lien on
and pledge of the Net Revenues, and the provisions of this Ordinance relating to the use of Net
Revenues shall be applicable to such Additional Prior Lien Obligations as though the same were a
part of such original authorization.
The fight to issue such other and further Additional Prior Lien Obligations shall exist as often
as the need therefor shall arise and so long as such Additional Prior Lien Obligations are issued in
compliance with law and the terms and conditions contained in this Ordinance.
SECTION 45' Refunding Bonds. The City reserves the right to issue refunding bonds to
refund all or any part of the Bonds, pursuant to any law then available, upon such terms and
conditions as the City Council may deem to be in the best interest of the City and its inhabitants, and
if less than all such outstanding Bonds are refunded, the conditions precedent prescribed, for the
issuance of Additional Prior Lien Obligations, set forth in Section 18 of this Ordinance shall be
satisfied and the Accountant's certificate required in subparagraph C shall give effect to the Debt
Service Requirements of the proposed refimding bonds (but shall not give effect to the Debt Service
Requirements of the bonds being refunded following their cancellation or provision being made for
their payment).
SECTION 46' Inferior Lien Obligations. The City hereby reserves the right to issue, at any
time, obligations including, but not limited to, Additional Junior Lien Obligations, Subordinate Lien
Obligations, and/or Additional Limited Pledge Obligations payable from and equally and ratably
secured, in whole or in part, by a lien on and pledge of the Net Revenues, subordinate and inferior
in rank and dignity to the lien on and pledge of such Net Revenues securing the payment of the Bond
Similarly Secured, as may be authorized by the laws of the State of Texas upon satisfying any
conditions precedent contained in the ordinances authorizing the issuance of the currently
outstanding Limited Pledge Obligations.
SECTION 47- Maintenance of System - Insurance. The City covenants, agrees, and affirms
its covenants that while the Bonds Similarly Secured remain outstanding it will maintain and operate
the System with all possible efficiency and maintain casualty and other insurance on the properties
of the System and its operations of a kind and in such amounts customarily carded by municipal
corporations in the State of Texas engaged in a similar type of business (which may include an
adequate program of self insurance); and that it will faithfully and punctually perform all duties with
#45007333vl -29-
reference to the System required by the laws of the State of Texas. All money received from losses
under such insurance policies, other than public liability policies, shall be retained for the benefit of
the holders of the Bonds until and unless the proceeds are paid out in making good the loss or
damage in respect of which such proceeds are received, either by replacing the property destroyed
or repairing the property damaged, and adequate provision for making good such loss or damage
must be made within ninety (90) days after the date of loss. The payment of premiums for all
insurance policies required under the provisions hereof shall be considered Maimenance and
Operating Expenses. Nothing in this Ordinance shall be construed as requiring the City to expend
any fimds which are derived from sources other than the operation of the System but nothing herein
shall be construed as preventing the City from doing so.
SECTION 48: Records and Accounts - Annual Audit. The City covenants, agrees, and
affirms its covenants that so long as any of the Bonds Similarly Secured remain outstanding, it will
keep and maintain separate and complete records and accounts pertaining to the operations of the
System in which complete and correct entries shall be made of all transactions relating thereto, as
provided by Chapter 1502, as amended, Texas Government Code, or other applicable law. The
Holders of the Bonds or any duly authorized agent or agents of such Holders shall have the right to
inspect the System and all properties comprising the same. The City further agrees that following
(and in no event later than 120 days) 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 Accoumants. Copies of
each annual audit shall be furnished, without charge, to the (i) Executive Director of the Municipal
Advisory Council of Texas at his office in Austin, Texas, (ii) the Texas Water Development Board,
Attention: Development Fund Manager, and, upon written request, to (iii) any subsequent Holder
thereof. Expenses incurred in making the annual audit of the operations of the System are to be
regarded as Maintenance and Operating Expenses.
SECTION 49: Special Covenants. The City hereby further covenants that:
A. It has the lawful power to pledge the Net Revenues supporting the Bonds and has
lawfully exercised this power under the laws of the State of Texas, including the power existing
under Chapter 1502, as amended, Texas Government Code and the City's Home Rule Charter;
B. The Bonds Similarly Secured shall be equally and ratably secured by a lien on and
pledge of the Net Revenues of the System in a manner that one bond shall have no preference over
any other bond;
C. Other than for the payment of the currently outstanding Bonds, Junior Lien
Obligations, and the Limited Pledge Obligations, the Net Revenues of the System have not in any
manner been pledged to the payment of any debt or obligation of the City or of the System;
D. As long as any Bonds, or any interest thereon, remain Outstanding, the City will not
sell, lease, or encumber the System or any substantial part thereof (except as provided in Sections
#4SOO7333vl -30-
18, 19, and 20 of this Ordinance) provided that this covenant shall not be construed to prohibit the
sale of such machinery, or other properties or equipment which has become obsolete or otherwise
unsuited to the efficient operation of the System;
E. No free service of the System (except water provided to the City for municipal
fire-fighting purposes) shall be allowed, and, should the City or any of its agents or instrumemalities
make use of the services and facilities 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;
and
F. 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 utility systems other than those owned by the City, and
the operation of any such systems by anyone other than the City is hereby prohibited.
SECTION 50: Limited Obligations of the City. The Bonds are limited, special obligations
of the City payable from and equally and ratably secured solely by a first lien on and pledge of the
Net Revenues of the System, and the Holders thereof shall never have the right to demand payment
of the principal or interest on the Bonds from any funds raised or to be raised through taxation by
the City.
SECTION 51: Security of Funds. All money on deposit in the Funds or accounts for which
this Ordinance makes provision (except any portion thereof as may be at any time properly invested
as provided herein) shall be secured in the manner and to the fullest extent required by the laws of
Texas for the security of public funds, and money on deposit in such Funds or accounts shall be used
only for the purposes permitted by this Ordinance.
SECTION 52: Remedies in Event of Default. In addition to all the rights and remedies
provided by the laws of the State of Texas, the City covenants and agrees particularly that in the
event the City defaults in the payments to be made to the Bond Fund or Reserve Fund, or defaults
in the observance or performance of any other of the covenants, conditions, or obligations set forth
in this Ordinance, the Holders of any of the Bonds shall be entitled to seek a writ of mandamus
issued by a court of proper jurisdiction compelling and requiting the governing body of the City and
other officers of the City 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.
#45007333vl -31-
SECTION 53' Notices to Holders Waiver. Wherever this Ordinance provides for notice to
Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and sent by United States Mail, first-class postage prepaid, to the address of
each Holder as it appears in the Security Register.
In any case where notice to Holders is given by mail, neither the failure to mail such notice
to any particular Holders, nor any defect in any notice so mailed, shall affect the sufficiency of such
notice with respect to all other Holders. 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~egistrar, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 54: Bonds Are Negotiable Instruments. Each of the Bonds authorized herein shall
be deemed and construed to be a "security" and as such a negotiable instrument with the meaning
of the Chapter 8 of the Texas Uniform Commercial Code.
SECTION 55: Cancellation. All Bonds surrendered for payment, transfer, exchange, or
replacement, if surrendered to the Paying Agent/Registrar, shall be promptly canceled by it and, if
surrendered to the City, shall be delivered to the Paying Agent~egistrar and, if not already canceled,
shall be promptly canceled by the Paying Agent/Registrar. The City may at any time deliver to the
Paying Agent/Registrar for cancellation any Bonds previously certified or registered and delivered
which the City may have acquired in any manner whatsoever, and all Bonds so delivered shall be
promptly canceled by the Paying Agent~egistrar. All canceled Bonds held by the Paying
Agent~egistrar shall be destroyed as directed by the City.
SECTION 56: Mutilated, Destroyed, Lost, and Stolen Bonds. If any mutilated Bond is
surrendered to the Paying Agent~egistrar, or the City and the Paying Agent~egistrar receive
evidence to their satisfaction of the destruction, loss, or theft of any Bond, and there is delivered to
the City and the Paying Agent~egistrar such security or indemnity as may be required to save each
of them harmless, then, in the absence of notice to the City or the Paying Agent/Registrar that such
Bond has been acquired by a bona fide purchaser, the City shall execute and, upon its request, the
Paying Agent~egistrar shall register and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost, or stolen Bond, a new Bond of the same Stated Maturity and interest rate and of like
tenor and principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost, or stolen Bond has become or is about to become
due and payable, the City in its discretion may, instead of issuing a new Bond, pay such Bond.
Upon the issuance of any new Bond or payment in lieu thereof, under this Section, the City
may require payment bythe Holder ora sum sufficient to cover any tax or other governmental charge
#45007333vl -32-
imposed in relation thereto and any other expenses (including attorney's fees and the fees and
expenses of the Paying Agent/Registrar) connected therewith.
Every new Bond issued pursuant to this Section in lieu of any mutilated, destroyed, lost, or
stolen Bond shall constitute a replacement of the prior obligation of the City, whether or not the
mutilated, destroyed, lost, or stolen Bond shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Ordinance equally and ratably with all other Outstanding Bonds.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement and payment of mutilated, destroyed, lost, or
stolen Bonds.
SECTION 57: Official Statement. The City Council ratifies and confirms its prior approval
of the form and content of the Official Statement prepared in the initial offering and sale of the
Bonds and hereby approves the form and content of any addenda, supplement, or amendment thereto.
The use of such Official Statement in the reoffering of the Bonds by the Purchasers is hereby
approved and authorized. The proper officials of the City are hereby authorized to execute and
deliver a certificate pertaining to such Official Statement as prescribed therein, dated as of the date
of payment for and delivery of the Bonds.
SECTION 58: Sale of Bonds - Approval of Purchase Contract and the Contract - Official
Statement Approval. The Bonds authorized by this Ordinance are hereby sold by the City to
, as the authorized representative of a group of underwriters (the
"Purchasers") in accordance with the provisions of a Purchase Contract, dated April 3, 2001 (the
"Purchase Contract"), attached hereto as Exhibit B and incorporated hereby by reference as a part
of this Ordinance for all purposes. The Initial Bond shall be registered in the name of
· The Mayor is hereby authorized and directed to execute the Purchase
Contract for and on behalf of the City and as the act and deed of the City Council, and in regard to
the approval and execution of the Purchase Contract, the City Council hereby finds, determines and
declares that the representations, warranties, and agreements of the City contained in the Purchase
Contract are tree and correct in all material respects and shall be honored by the City. Delivery of
the Bonds to the Purchasers shall occur as soon as practicable after the adoption of this Ordinance,
upon payment therefor in accordance with the terms of the Purchase Contract.
Furthermore, the use and distribution of the Preliminary Official Statement bythe Purchasers
in connection with the public offering and sale of the Bonds is hereby ratified, confirmed and
approved in all respects. The final Official Statement shall be and is hereby in all respects approved
and the Purchasers are hereby authorized to use and distribute the final Official Statement, dated
April 3, 2001, in the reoffering, sale and delivery of the Bonds to the public. The Mayor and/or City
Secretary are further authorized and directed to manually execute and deliver for and on behalf of
the City copies of the Official Statement in final form as may be required by the Purchasers, and such
final Official Statement in the form and content manually executed by said officials shall be deemed
#45007333vl -33-
to be approved by the City Council and constitute the Official Statement authorized for distribution
and use by the Purchasers.
Proceeds from the sale of the Bonds shall be applied as follows:
(a) Accrued interest and premium, if any, received from the Purchasers shall be deposited
into the Bond Fund.
(b) The balance of the proceeds derived from the sale of the Bonds (after paying costs
of issuance) shall be deposited into a construction fund created for the projects to be constructed with
the proceeds of the Bonds. This Construction Fund shall be established and maintained at the
Depository and shall be invested in accordance with the provisions of Section 17 of this Ordinance.
Interest earned on the proceeds of the Bonds pending completion of the projects financed with such
proceeds shall be accounted for, maintained, deposited, and expended as permitted by the provisions
of Chapter 1201, as amended, Texas Government Code, or as required by any other applicable law.
Thereafter, such amounts shall be expended in accordance with Section 13.
SECTION 59: Escrow Deposit Letter Approval and Execution; Proceeds of Sale;
Contribution by City. The Escrow Deposit Letter dated as of April 3,2001 to be effective upon the
initial delivery of the Bonds to the Purchasers (the Agreement) between the City and The Bank of
New York, New York, New York (the Escrow Agent), attached hereto as Exhibit C and incorporated
herein by reference as a part of this Ordinance for all purposes, is hereby approved as to form and
content, and such Agreement in substantially the form and substance attached hereto, together with
such changes or revisions as may be necessary to accomplish the refunding or benefit the City, is
hereby authorized to be executed by the Mayor and City Secretary and on behalf of the City and as
the act and deed of this City Council; and such Agreement as executed by said officials shall be
deemed approved by the City Council and constitute the Agreement herein approved.
Furthermore, the Mayor, City Secretary or City Manager, any one or more of said officials,
and Bond Counsel in cooperation with the Escrow Agent are hereby authorized and directed to make
the necessary arrangements for the purchase of the Federal Securities referenced in the Agreement
and the initial delivery thereof to the Escrow Agent on the day of delivery of the Bonds to the
Purchasers for deposit to the credit of the "CITY OF SCHERTZ, TEXAS UTILITY SYSTEM
REVENUE AND REFUNDING BONDS SERIES 2001 ESCROW FUND" (the Escrow Fund),
including the execution of the subscription forms for the purchase and issuance of the "United States
Treasury Securities - State and Local Government Series", if any, for deposit to the Escrow Fund;
all as contemplated and provided by the provisions of the Act, this Ordinance, and the Agreement.
Immediately following the delivery of the Bonds, the proceeds of sale, along with a cash
contribution, if any, from the City (less certain costs of issuance, if any, and accrued interest received
from the Purchasers of the Bonds) shall be deposited with the Escrow Agent for application and
disbursement in accordance with the provisions of the Agreement. The proceeds of sale of the
#45007333vl -34-
Bonds not so deposited with the Escrow Agent for the refunding of the Refunded Obligations shall
be disbursed for payment of costs of issuance and deposited with the place of paymem (The Bank
of New York) in an account in the name of the City and applied for the purposes of providing for the
payment of the costs and expenses incurred in connection therewith or deposited in the Bond Fund
for the Bonds, all in accordance with written instructions from the Mayor.
SECTION 60: Redemption of Refunded Obligations. The Refunded Obligations referenced
in the preamble hereof become subject to redemption prior to their stated maturities at the price of
par and accrued interest to the date of redemption. The Mayor shall give written notice to the
Escrow Agent that all of the Refunded Obligations have been called for redemption, and the City
Council orders that such obligations are called for redemption on the earliest optional redemption
date, and such order to redeem the Refimded Obligations on such date shall be irrevocable upon the
delivery of the Bonds. Copies of the notices of redemption pertaining to the Refunded Obligations
are attached to this Ordinance as Exhibit D and is incorporated herein by reference for all purposes.
The Escrow Agent is authorized and instructed to provide notice of this redemption to the holders
of the Refunded Obligations in the form and manner described in the ordinances authorizing the
issuance of the Refunded Obligations.
SECTION 61' Covenants to Maintain Tax-Exempt Status.
meanings:
Definitions. When used in this Section, the following terms have the following
"Code" means the Internal Revenue Code of 1986, as amended by all legislation,
if any, effective on or before the Closing Date.
"Computation Date" has the meaning set forth in Section 1.148-1(b) of the
Regulations.
"Gross Proceeds" means any proceeds as defined in Section 1.148-1(b) of the
Regulations, and any replacement proceeds as defined in Section 1.148-1(c) of the
Regulations, of the Bonds.
"Investment" has the meaning set forth in Section 1.148-1(b) of the Regulations.
"Nonpurpose Investment" means any investment property, as defined in section
148(b) of the Code, in which Gross Proceeds of the Bonds are invested and which is not
acquired to carry out the governmental purposes of the Bonds.
"Rebate Amount" has the meaning set forth in Section 1.148-1 (b) of the Regulations.
#45007333vl -35-
"Regulations" means any proposed, temporary, or final Income Tax Regulations
issued pursuant to Sections 103 and 141 through 150 of the Code, and 103 of the Internal
Revenue Code of 1954, which are applicable to the Bonds. Any reference to any specific
Regulation shall also mean, as appropriate, any proposed, temporary or final Income Tax
Regulation designed to supplement, amend or replace the specific Regulation referenced.
"Yield" of
(1) any Investment has the meaning set forth in Section 1.148-5 of the
Regulations; and
(2)
Regulations.
the Bonds has the meaning set forth in Section 1.148-4 of the
B. Not to Cause Interest to Become Taxable. The City shall not use, permit the use of,
or omit to use Gross Proceeds or any other amounts (or any property the acquisition, construction
or improvement of which is to be financed directly or indirectly with Gross Proceeds) in a manner
which if made or omitted, respectively, would cause the interest on any Bond to become includable
in the gross income, as defined in section 61 of the Code, of the owner thereof for federal income
tax purposes. Without limiting the generality of the foregoing, unless and until the City receives a
written opinion of counsel nationally recognized in the field of municipal bond law to the effect that
failure to comply with such covenant will not adversely affect the exemption from federal income
tax of the interest on any Bond, the City shall comply with each of the specific covenants in this
Section.
C. No Private Use or Private Payments. Except as would not cause the Bonds to become
"private activity bonds" within the meaning of section 141 of the Code and the Regulations and
rulings thereunder, the City shall at all times prior to the last Stated Maturity of Bonds'
(1) exclusively own, operate and possess all property the acquisition, construction
or improvement of which is to be financed or refinanced directly or indirectly with Gross
Proceeds of the Bonds (including property financed with Gross Proceeds of the Refunded
Obligations), and not use or permit the use of such Gross Proceeds (including all contractual
arrangements with terms different than those applicable to the general public) or any property
acquired, constructed or improved with such Gross Proceeds in any activity carded on by any
person or entity (including the United States or any agency, department and instrumentality
thereof) other than a state or local government, unless such use is solely as a member of the
general public; and
(2) not directly or indirectly impose or accept any charge or other payment by any
person or entity who is treated as using Gross Proceeds of the Bonds or any property the
acquisition, construction or improvement of which is to be financed or refinanced directly
#45007333vl -36-
or indirectly with such Gross Proceeds, other than taxes of general application within the
City or interest earned on investments acquired with such Gross Proceeds pending
application for their intended purposes.
D. No Private Loan. Except as would not cause the Bonds to become "private activity
bonds" within the meaning of section 141 of the Code and the Regulations and rulings thereunder,
the City shall not use Gross Proceeds of the Bonds to make or finance loans to any person or entity
other than a state or local government. For purposes of the foregoing covenant, such Gross Proceeds
are considered to be "loaned" to a person or entity if: (1) property acquired, constructed or improved
with such Gross Proceeds is sold or leased to such person or entity in a transaction which creates a
debt for federal income tax purposes; (2) capacity in or service from such property is committed to
such person or entity under a take-or-pay, output or similar contract or arrangement; or (3) indirect
benefits, or burdens and benefits of ownership, of such Gross Proceeds or any property acquired,
constructed or improved with such Gross Proceeds are otherwise transferred in a transaction which
is the economic equivalent of a loan.
E. Not to Invest at Higher Yield. Except as would not cause the Bonds to become
"private activity bonds" within the meaning of section 141 of the Code and the Regulations and
rulings thereunder, the City shall not at any time prior to the final Stated Maturity of the Bonds
directly or indirectly invest Gross Proceeds in any Investment, if as a result of such investment the
Yield of any Investment acquired with Gross Proceeds, whether then held or previously disposed of,
materially exceeds the Yield of the Bonds.
F. Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the
Code and the Regulations and rulings thereunder, the City shall not take or omit to take any action
which would cause the Bonds to be federally guaranteed within the meaning of section 149(b) of the
Code and the Regulations and rulings thereunder.
G. Information Report. The City shall timely file the information required by section
149(e) of the Code with the Secretary of the Treasury on Form 8038-G or such other form and in
such place as the Secretary may prescribe.
H. Rebate of Arbitrage Profits. Except to the extent otherwise provided in section 148(f)
of the Code and the Regulations and rulings thereunder:
(1) The City shall account for all Gross Proceeds (including all receipts,
expenditures and investments thereof) on its books of account separately and apart from all
other funds (and receipts, expenditures and investments thereof) and shall retain all records
of accounting for at least six years after the day on which the last Outstanding Bond is
discharged. However, to the extent permitted by law, the City may commingle Gross
Proceeds of the Bonds with other money of the City, provided that the City separately
#45007333vl -37-
accounts for each receipt and expenditure of Gross Proceeds and the obligations acquired
therewith.
(2) Not less frequently than each Computation Date, the City shall calculate the
Rebate Amount in accordance with roles set forth in section 148(t) of the Code and the
Regulations and rulings thereunder. The City shall maintain such calculations with its
official transcript of proceedings relating to the issuance of the Bonds until six years after the
final Computation Date.
(3) As additional consideration for the purchase of the Bonds by the Purchasers
and the loan of the money represented thereby and in order to induce such purchase by
measures designed to insure the excludability of the interest thereon from the gross income
of the owners thereof for federal income tax purposes, the City shall pay to the United States
out of the Bond Fund or its general fund, as permitted by applicable Texas statute, regulation
or opinion of the Attorney General of the State of Texas, the amount that when added to the
future value of previous rebate payments made for the Bonds equals (i) in the case of a Final
Computation Date as defined in Section 1.148-3(e)(2) of the Regulations, one hundred
percent (100%) of the Rebate Amount on such date; and (ii) in the case of any other
Computation Date, ninety percent.(90%) of the Rebate Amount on such date. In all cases,
the rebate payments shall be made at the times, in the installments, to the place and in the
manner as is or may be required by section 148(f) of the Code and the Regulations and
rulings thereunder, and shall be accompanied by Form 8038-T or such other forms and
information as is or may be required by Section 148(f) of the Code and the Regulations and
rulings thereunder.
(4) The City shall exercise reasonable diligence to assure that no errors are made
in the calculations and payments required by paragraphs (2) and (3), and if an error is made,
to discover and promptly correct such error within a reasonable amount of time thereafter
(and in all events within one hundred eighty (180) days after discovery of the error),
including payment to the United States of any additional Rebate Amount owed to it, interest
thereon, and any penalty imposed under Section 1.148-3(h) of the Regulations.
I. Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of the
Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the earlier
of the Stated Maturity or final payment of the Bonds, enter into any transaction that reduces the
amount required to be paid to the United States pursuant to Subsection H of this Section because
such transaction results in a smaller profit or a larger loss than would have resulted if the transaction
had been at arm's length and had the Yield of the Bonds not been relevant to either party.
#45007333vl -38-
Je
Bonds Not Hedge Bonds.
(1) The City reasonably expects to spend at least 85% of the spendable proceeds
of the Bonds within three years after such Bonds are issued.
(2) Not more than 50% of the proceeds of the Bonds will be invested in
Nonpurpose Investments having a substantially guaranteed Yield for a period of 4 years or
more.
K. Elections. The City hereby directs and authorizes the Mayor, Mayor Pro Tem, City
Secretary, City Manager, City Attorney or Director of Finance, either or any combination of them,
to make elections permitted or required pursuant to the provisions of the Code or the Regulations,
as they deem necessary or appropriate in connection with the Bonds, in the Certificate as to Tax
Exemption or similar or other appropriate certificate, form or document.
L. Qualified Tax-Exempt Obligations. The City hereby designates the Bonds as
qualified tax-exempt obligations for purposes of section 265(b) of the Code. In furtherance of such
designation, the City represents, covenants and warrants the following: (a) during the calendar year
in which the Bonds are issued, the City (including any subordinate entities) has not designated nor
will designate obligations, which when aggregated with the Bonds, will result in more than
$10,000,000 of"qualified tax-exempt obligations" being issued; (b) the City reasonably anticipates
that the amount of tax-exempt obligations issued during the calendar year 2000 by the City
(including any subordinate entities) will not exceed $10,000,000; and (c) the City will take such
action or refrain from such action as is necessary in order that the Bonds will not be considered
"private activity bonds" within the meaning of section 141 of the Code.
SECTION 62: Control and Custody of Bonds. The Mayor shall be and is hereby authorized
to take and have charge of all necessary orders and records pending investigation by the Attorney
General of the State of Texas and shall take and have charge and control of the Bonds pending their
approval by the Attorney General, the registration thereof by the Comptroller of Public Accounts and
the delivery of the Bonds to the Purchaser.
Furthermore, the Mayor, City Secretary, City Manager, Director of Finance, or City Attorney,
either or all, are hereby authorized and directed to finnish 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 Initial Bonds to the Purchaser.
SECTION 63' 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 lien on and pledge of Net
g45007333vl
-39-
Revenues under this Ordinance and all covenants, agreements, and other obligations, of the City to
the Holders shall thereupon cease, terminate, and be discharged and satisfied.
Bonds, or any principal amount(s) thereof, shall be deemed to have been paid within the
meaning and with the effect expressed above in this Section when (i) money sufficient to pay in full
such Bonds or the principal amount(s) thereof at Stated 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~egistrar" or an authorized escrow agent, or (ii) Government Securities shall
have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow
agent, which Government Securities have been certified by an independent accounting firm to
mature as to principal and interest in such amounts and at such times as will insure the availability,
without reinvestment, of sufficient money, together with any money deposited therewith, if any, to
pay when due the principal of and imerest 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 money or Government Securities will
be made under this Section and no use made of any such deposit which would cause the Bonds to
be treated as arbitrage bonds within the meaning of section 148 of the Code (as defined in Section
32 hereof).
Any money so deposited with the Paying Agent~egistrar, and all income from Government
Securities held in trust by the Paying Agent~egistrar, 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 money has been so deposited shall be remitted to the City
or deposited as directed by the City. Furthermore, any money held by the Paying Agent~egistrar
for the payment of the principal of and interest on the Bonds and remaining unclaimed for a period
of four (4) years after the Stated Maturity, or applicable redemption date, of the Bonds such money
was deposited and is held in trust to pay shall upon the request of the City be remitted to the City
against a written receipt therefor, subject to the unclaimed property laws of the State of Texas.
Notwithstanding any other provision of this Ordinance to the contrary, it is hereby provided that any
determination not to redeem defeased Bonds that is made in conjunction with the payment
arrangements specified in (i) or (ii) above shall not be irrevocable, provided that: (1) in the
proceedings providing for such defeasance, the City expressly reserves the right to call the defeased
Bonds for redemption; (2) gives notice of the reservation of that right to the owners of the defeased
Bonds immediately following the defeasance; (3) directs that notice of the reservation be included
in any redemption notices that it authorizes; and (4) at the time of the redemption, satisfies the
conditions of (i) or (ii) above with respect to such defeased debt as though it was being defeased at
the time of the exercise of the option to redeem the defeased Bonds, after taking the redemption into
account in determining the sufficiency of the provisions made for the payment of the defeased
Bonds.
#45007333vl -40-
SECTION 64: Ordinance a Contract; Amendments - Outstanding Bonds. The City
acknowledges that the covenants and obligations of the City herein contained are a material
inducement to the purchase of the BondS. This Ordinance shall constitute a contract with the
Holders from time to time, binding on the City and its successors and assigns, and it 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 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 extend the time or times of payment of the
principal of and interest on the Bonds, reduce the principal amount thereof, the redemption price
therefor, or the rate of interest thereon, or in any other way modify the terms of payment of the
principal of or interest on the Bonds, give any preference to any Bond over any other Bond, or
reduce the aggregate principal amount of Bonds required for consent to any such amendment,
.addition, or rescission.
SECTION 65' Printed Opinion. The Purchaser's obligation to accept delivery of the Bonds
is subject to its being furnished a final opinion of Fulbright & Jaworski L.L.P., Attorneys at Law,
approving certain legal matters as to the Bonds, said opinion to be dated and delivered as of the date
of initial delivery and payment for such Bonds. Printing of a tree and correct copy of said opinion
on the reverse side of each of said Bonds, with appropriate certificate pertaining thereto executed by
facsimile signature of the City Secretary of the City is hereby approved and authorized.
SECTION 66- CUSIP Numbers. CUSIP numbers may be printed or typed on the definitive
Bonds. It is expressly provided, however, that the presence or absence of CUSIP numbers on the
definitive Bonds shall be of no significance or effect as regards the legality thereof, and neither the
City nor attorneys approving said Bonds as to legality are to be held responsible for CUSIP numbers
incorrectly printed or typed on the definitive Bonds.
SECTION 67' Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 68: Benefits of Ordinance. Nothing in this Ordinance, expressed or implied, is
intended or shall be construed to confer upon any person other than the City, bond counsel, Paying
Agent~egistrar, and the Holders, any right, remedy, or claim, legal or equitable, under or by reason
of this ordinance or any provision hereof, this Ordinance and all its provisions being intended to be
and being for the sole and exclusive benefit of the City, bond counsel, the Paying Agent~egistrar,
and the Holders.
#45007333vl -41-
SECTION 69: Inconsistent Provisions. All ordinances and resolutions, or parts thereof,
which are in conflict or inconsistent with any provision of this Ordinance are hereby repealed to the
extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the
matters ordained herein.
SECTION 70' 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 71: Severability. If any provision of this. Ordinance or the application thereof to
any person or circumstance shall be held to be invalid, the remainder of this Ordinance and the
application of such provision to other persons and circumstances shall nevertheless be valid, and the
City Council hereby declares that this Ordinance would have been enacted without such invalid
provision.
SECTION 72- Incorporation of Preamble Recitals. The recitals contained in the preamble
hereof are hereby found to be tree, and such recitals are hereby made a part of this Ordinance for all
purposes and are adopted as a part of the judgment and findings of the City Council.
SECTION 73' Authorization of Paying Agent~egistrar Agreement. The City Council hereby
finds and determines that it is in the best interest of the City to authorize the execution of a Paying
Agent~egistrar Agreement concerning the payment, exchange, and transferability of the Bonds.
A copy of the Paying Agent~egistrar Agreement is attached hereto, in substantially final form, as
Exhibit A and is incorporated by reference to the provisions of this Ordinance.
SECTION 74: Public Meeting. It is officially found, determined, and declared that the
meeting at which this Ordinance is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered at such meeting, including this
Ordinance, was given, all as required by Chapter 551, as amended, Texas Government Code.
SECTION 75' Continuing Disclosure Undertaking.
A. Definitions.
As used in this Section, the following terms have the meanings ascribed to such terms below:
"MSRB" means the Municipal Securities Rulemaking Board.
"NRMSIR" means each person whom the SEC or its staff has determined to be a
nationally recognized municipal securities information repository within the meaning of the Rule
from time to time.
"Rule" means SEC Rule 15c2-12, as amended from time to time.
#45007333vl -42-
"SEC" means the United States Securities and Exchange Commission.
"SID" means any person designated by the State of Texas or an authorized
department, officer, or agency thereof as, and determined by the SEC or its staff to be, a state
information depository within the meaning of the Rule from time to time.
B. Annual Reports.
The City shall provide annually to each NRMSIR and any SID, within six months
atter the end of each fiscal year ending in or after 2001, financial information and operating data with
respect to the City of the general type included in the final Official Statement authorized by
Section 31 of this Ordinance, being the information described in Exhibit E hereto. Any financial
statements so to be provided shall be (i) prepared in accordance with the accounting principles
described in Exhibit E hereto, or such other accounting principles as the City may be required to
employ from time to time pursuant to state law or regulation and audited, if the City commissions
an audit of such statements and the audit is completed within the period during which they must be
provided. If the audit of such financial statements is not complete within such period, then the City
shall provide unaudited financial statements for the applicable fiscal year to each NRMSIR and any
SID, with the financial information and operating data and will file the annual audit report when and
if the same becomes available.
If the City changes its fiscal year, it will notify each NRMSIR and any SID of the
change (and of the date of the new fiscal year end) prior to the next date by which the City otherwise
would be required to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section
may be set forth in full in one or more documents or may be included by specific reference to any
document (including an official statement or other offering document, if it is available from the
MSRB) that theretofore has been provided to each NRMSIR and any SID or filed with the SEC.
C. Material Event Notices.
The City shall notify any SID and either each NRMSIR or the MSRB, in a timely
manner, of any of the following events with respect to the Bonds, if such event is material within the
meaning of the federal securities laws:
(i)
Principal and interest payment delinquencies;
(ii)
Non-payment related defaults;
(iii)
Unscheduled draws on debt service reserves reflecting financial difficulties;
g45007333vl -43-
(iv)
Unscheduled draws on credit enhancements reflecting financial difficulties;
(v)
Substitution of credit or liquidity providers, or their failure to perform;
(vi)
Adverse tax opinions or events affecting the tax-exempt stares of the Bonds;
(vii) Modifications to rights of holders of the Bonds;
(viii) Bond calls;
(ix) Defeasances;
(x)
Release, substitution, or sale of property securing repayment of the Bonds; and
(xi) Rating changes.
The City shall notify any SID and either each NRMSIR or the MSRB, in a timely manner,
of any failure by the City to provide financial information or operating data in accordance with this
Section of this Ordinance by the time required by this Section.
De
Limitations, Disclaimers, and Amendments.
The City shall be obligated to observe and perform the covenants specified in this
Section with respect to the City and the Bonds while, but only while, the City remains an "obligated
person" with respect to the Bonds within the meaning of the Rule, except that the City in any event
will give the notice required by subsection (c) hereof of any Bond calls and defeasance that cause
the City to be no longer such an "obligated person".
The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or any
legal or equitable right, remedy, or claim hereunder to any other person. The City undertakes to
provide only the financial information, operating data, financial statements, and notices which it has
expressly agreed to provide pursuant to this Section and does not hereby undertake to provide any
other information that may be relevant or material to a complete presentation of the financial results,
condition, or prospects of the City or hereby undertake to update any information provided in
accordance with this Section or otherwise, except as expressly provided herein. The City does not
make any representation or warranty concerning such information or its usefulness to a decision to
invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE
HOLDER OR BENEFIC~ OWNER OF ANY BOND OR ANY OTHER PERSON, IN
CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY
#45007333vl -44-
BREACH BY THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF
ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF
ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH
BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC
PERFORMANCE.
No default by the City in observing or performing its obligations under this Section shall
constitute a breach of or default under this Ordinance for purposes of any other provision of this
Ordinance.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
The provisions of this Section may be amended by the City from time to time to adapt to
changed circumstances resulting from a change in legal requirements, a change in law, or a change
in the identity, nature, status, or type of operations of the City, but only if (i) the provisions of this
Section, as so amended, would have permitted an underwriter to purchase or sell Bonds in the
primary offering of the Bonds in compliance with the Rule, taking into account any amendments or
interpretations of the Rule to the date of such amendment, as well as such changed circumstances,
and either the Holders of a majority in aggregate principal amount (or any greater amount required
by any other provision of this Ordinance that authorizes such an amendment) of the Outstanding
Bonds consent to such amendment or a person that is unaffiliated with the City (such as nationally
recognized bond counsel) determines that' such amendment will not materially impair the interests
of the Holders and beneficial owners of the Bonds. The City may also repeal or amend the
provisions of this Section if the SEC amends or repeals the applicable provisions of the Rule or any
court of final jurisdiction enters judgment that such provisions of the Rule are invalid, and the City
also may amend the provisions of this Section in its discretion in any other manner or circumstance,
but in either case only if and to the extent that the provisions of this sentence would not have
prevented an underwriter from lawfully purchasing or selling Bonds in the primary offering of the
Bonds, giving effect to (a) such provisions as so amended and (b) any amendments or interpretations
of the Rule. If the City so amends the provisions of this Section, it shall include with any amended
financial information or operating data next provided in accordance with paragraph (b) of this
Section an explanation, in narrative form, of the reasons for the amendment and of the impact of any
change in the type of financial information or operating data so provided.
SECTION 76: Book-Entry Only System.
It is intended that the Bonds initially be registered so as to participate in a securities
depository system (the DTC System) with the Depository Trust Company, New York, New York,
or any successor entity thereto (DTC), as set forth herein. Each Stated Maturity of the Bonds shall
be issued (following cancellation of the Initial Bonds described in Section 7) in the form of a
separate single definitive Bond. Upon issuance, the ownership of each such Bond shall be registered
#45007333vl -45-
in the name of Cede & Co., as the nominee of DTC, and all of the Outstanding Bonds shall be
registered in the name of Cede & Co., as the nominee of DTC. The City and the Paying
AgentJRegistrar are authorized to execute, deliver, and take the actions set forth in such letters to or
agreements with DTC as shall be necessary to effectuate the DTC System, including the Letter of
Representation attached hereto as Exhibit F (the Re£resentation Letter).
With respect to the Bonds registered in the name of Cede & Co., as nominee of DTC, the
City and the Paying Agent~egistrar shall have no responsibility or obligation to any broker-dealer,
bank, or other financial institution for which DTC holds the Bonds from time to time as securities
depository (a Depository Participant) or to any person on behalf of whom such a Depository
Participant holds an interest in the Bonds (an Indirect Participant). Without limiting the
immediately preceding sentence, the City and the Paying AgentJRegistrar shall have no responsibility
or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co., or any Depository
Participant with respect to any ownership interest in the Bonds, or (ii) the delivery to any Depository
Participant or any other person, other than a registered owner of the Bonds, as shown on the Security
Registrar, of any notice with respect to the Bonds, including any notice of redemption, or (iii) the
delivery to any Depository Participant or any Indirect Participant or any other Person, other than a
Holder of a Bond, of any amount with respect to principal of, premium, if any, or interest on the
Bonds. While in the DTC System, no person other than Cede & Co., or any successor thereto, as
nominee for DTC, shall receive a Bond evidencing the obligation of the City to make payments of
principal, premium, if any, and interest pursuant to this Ordinance. Upon delivery by DTC to the
Paying Agent~egistrar of written notice to the effect that DTC has determined to substitute a new
nominee in place of Cede & Co., and subject to the provisions in this Ordinance with respect to
interest checks or drafts being mailed to the Holder, the word "Cede & Co." in this Ordinance shall
refer to such new nominee of DTC.
In the event that (a) the City determines that DTC is incapable of discharging its
responsibilities described herein and in the.Representation Lette~, (b) the Representation Letter shall
be terminated for any reason, or (c) DTC or the City determines that it is in the best interest of the
beneficial owners of the Bonds that they be able to obtain certificated Bonds, the City shall notify
the Paying AgentJRegistrar, DTC, and the Depository Participants of the availability within a
reasonable period of time through DTC of Bond certificates, and the Bonds shall no longer be
restricted to being registered in the name of Cede & Co., as nominee of DTC. At that time, the City
may determine that the Bonds shall be registered in the name of and deposited with a successor
depository operating a securities depository system, as may be acceptable to the City, or such
depository's agent or designee, and if the City and the Paying Agent~egistrar do not select such
alternate securities depository system then the Bonds may be registered in whatever name or names
the Holders of Bonds transferring or exchanging the Bonds shall designate, in accordance with the
provisions hereof.
Notwithstanding any other provision of this Ordinance to the contrary, so long as any Bond
is registered in the name of Cede & Co., as nominee of DTC, all payments with respect to principal
#45007333vl -46-
of, premium, if any, and interest on such Bond and all notices with respect to such Bond shall be
made and given, respectively, in the manner provided in the Representation Letter.
SECTION 77' Unavailability of Authorized Publication. If, because of the temporary or
permanent suspension of any newspaper, journal, or other publication, or, for any reason, publication
of notice cannot be made meeting any requirements herein established, any notice required to be
published by the provisions of this Ordinance shall be given in such other manner and at such time
or times as in the judgment of the City' or of the Paying Agent/Registrar shall most effectively
approximate such required publication and the giving of such notice in such manner shall for all
purposes of this Ordinance be deemed to be in compliance with the requirements for publication
thereof.
SECTION 78: No Recourse Against City. No recourse shall be had for the payment of
principal of, premium, if any, or interest on any Bond or for any claim based thereon or on this
Ordinance against any official of the City or any person executing any Bond.
SECTION 79:Further Procedures. The officers and employees of the City are hereby
authorized, empowered and directed fi'om time to time and at any time to do and perform all such
acts and things and to execute, acknowledge and deliver in the name and under the corporate seal
and on behalf of the City all such instruments, whether or not herein mentioned, as may be necessary
or desirable in order to carry out the terms and provisions of this Ordinance, the initial sale and
delivery of the Bonds, the Paying Agent~egistrar Agreement, and the Official Statement. In
addition, prior to the initial delivery of the Bonds, the Mayor, the City Manager or Assistant City
Manager, the City Attorney and Bond Counsel are hereby authorized and directed to approve any
technical changes or corrections to this Ordinance or to any of the instruments authorized and
approved by this Ordinance necessary in order to (i) correct any ambiguity or mistake or properly
or more completely document the transactions contemplated and approved by this Ordinance and
as described in the Official Statement, (ii) obtain a rating from any of the national bond rating
agencies, or (iii) obtain the approval of the Bonds by the Texas Attorney General's office. In case
any officer of the City whose signature shall appear on any certificate shall cease to be such officer
before the delivery of such certificate, such signature shall nevertheless be valid and sufficient for
all purposes the same as if such officer had remained in office until such delivery.
SECTION 80: Effective Date. This Ordinance shall be in force and effect from and after its
final passage, and it is so ordained.
[The remainder of this page intentionally left blank.]
#45007333vl
-47-
2001.
FIRST READING on the 20th day of March, 2001.
SECOND AND FINAL READING, PASSED AND ADOPTED on the 3rd day of April,
CITY OF S Z, TEXAS
Mayor
ATTEST-
City Secretary
(CITY SEAL)
SCHEDULE I- Refunded Obligations
EXHIBIT A- Form of Paying Agent~egistrar Agreemem
EXHIBIT B - Purchase Contract
EXHIBIT C - Escrow Deposit Letter
EXHIBIT D - Notice of Redemption
EXHIBIT E - Description of Annual Financial Information
EXHIBIT F - DTC Letter of Representations
#45007333vl S-1
SCHEDULE I
REFUNDED OBLIGATIONS
City of Schertz, Texas Utility System Revenue Bonds, Series 1987, dated March 1,
1987, in the original principal amount of $1,020,000, stated to mature on September
1 in each of the years 2001 through 2007, in the aggregate principal amount of
$785,00O.
~45007333vl
I-1
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
SEE TAB NO.
g45007333vl
A-1
EXHIBIT B
PURCHASE CONTRACT
#45007333vl
B-1
EXHIBIT C
ESCROW DEPOSIT LETTER
#45007333vl
C-1
EXHIBIT D
NOTICE OF REDEMPTION
g45007333vl
D-1
EXHIBIT E
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 47 of this Ordinance.
Annual Financial Statements and Operating Data
The financial information and operating data with respect to the City to be
provided annually in accordance with such Section are as specified (and included in the
Appendix or under the headings of the Official Statement referred to) below:
1. The City's audited financial statements for the most recently concluded
fiscal year or to the extent these audited financial statements are not available, the
portions of the unaudited financial statements of the City referenced in the Official
Statement, but for the most recently concluded fiscal year.
Bo
o
Table 1 of the Official Statement and Tables 11 through 14 of Appendix
Accounting Principles
The accounting principles referred to in such Section are generally accepted
accounting principles for governmental units as prescribed by the Government Accounting
Standards Board from time to time.
#45007333vl
E-1
EXHIBIT F
DTC LETTER OF REPRESENTATIONS
SEE TAB NO.
#45007333vl
F-1
THE STATE OF TEXAS,
PUBLISHER'S AFFIDAVIT
COunty of Guadalupe
Before me, the undersigned authority, on this date personally appeared
~:o m,~:~ c ~: o~ , known to me, who, being by me duly sworn, on
his oath deposes ~nd says that he.is the Publisher of The Seguin Gazette-Enterprise, a
newspaper published in said county; that a copy of the within and foregoing notice was.
published in said newspaper I time(s) before the return day named therein, such
publications being on the following dates' , ~.
,interest on the
pledge o~ trmtmt
the system;
terms and
~tO, '~
and a newspaper copy of which is hereto attached.
Swom to and subscribed before me this ~~'<~ day of
, ,,
., A.D., 2001.
CAROL ANN AVERY
Nota~ Public St~t~ of Texas
My Commission Expire~ 08-31-2004
registrar
ing with ~
ny's. letter
Notary Public, Guadalupe County, Texas
THE STATE OF TEXAS,
PUBLISHER'S AFFIDAVIT
COunty of Guadalupe
Before me, the undersigned authority, on this date personally appeared
\,
:rom~ c~ o~ , known to me, who, being by me duly sworn, on
his oath deposes and says that he.is the Publisher of The Seguin Gazette-Enterprise, a
newspaper published in said county; that a copy of the within and foregoing notice was.
published in said newspaper \ time(s) before the return day named therein, such
publications being on the following dates'
0
and a newspaper copy of which is hereto attached.
.c~y of
thodzing the' issuance
"City of?Schertz, Texas
ity 'Sy~m 'Revenue
Refund~g Bonds,
2001"; providing for the
interest i:~)n the bonds
first ~n~: prior lien on
pledge ~ the net
the, sy~m; ~providing
paying
letter; complying With
requirem~, ts
S~and subscribed before me this .~¢ dayof to,,,.
re--rations;, 'and ,for
..... ef~e~t~ date,
P~SED, ~ ~PPR0~
,/./v /~'f~ ' , A.D., 2001 ANDADOPTED the 3rd
~k.~:~_'~.,~?'.,~v/ MyCommissimExpims0S-31'2004 ~ Notary Public, Guadalupe County, Texas