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HomeMy WebLinkAboutOrdinance 10722CITY OF DALLAS ORDINANCE NO. 20790 CITY OF FORT WORTH ORDINANCE NO 10722 AN ORDINANCE ADOPTED CONCURRENTLY BY THE CITY COUNCILS OF THE CITIES OF DALLAS AND FORT WORTH AUTHORIZING THE EXECUTION OF A CERTAIN ESCROW AGREEMENT, AGREEMENT TO ENTER INTO ESCROW AND FORWARD PURCHASE AGREEMENT AND ESCROW AND FORWARD PURCHASE AGREEMENT WHEREAS, concurrently herewith the City Councils, respectively, of the Cities of Dallas and Fort Worth (the "Cities") have adopted the Eighteenth Supplemental Regional Airport Concurrent Bond Ordinance authorizing the issuance of the Dallas-Fort Worth Regional Airport Joint Revenue Refunding Bonds, Series 1992A (the "Bonds"); and WHEREAS, the Joint Revenue Bonds to be refunded are to be paid and retired, pursuant to the terms of the Dallas-Fort Worth International Airport Series 1992A Escrow Agreement with respect to the Series 1982A Joint Revenue Bonds to be refunded (the "Escrow Agreement") between the Cities of Dallas and Fort Worth and NCNB Texas National Bank; and WHEREAS, the Bonds are to be sold to the Underwriters pursuant to the terms and conditions of the Agreement to Enter Into Escrow and Forward Purchase Agreement (the "Agreement to Enter Into Escrow and Forward Purchase Agreement"); and WHEREAS, the Bonds are to be delivered to the holders of the Escrow Receipts pursuant to a forward purchase arrangement in accordance with the terms and conditions of the Escrow and Forward Purchase Agreement (the "Escrow and Forward Purchase Agreement") which has previously been approved by the Dallas-Fort Worth International Airport Board and forwarded on for action by the Cities. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DALLAS, TEXAS: NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: That the Escrow Agreement in substantially the form attached hereto and made a part hereof as Exhibit A, the Agreement to Enter Into Escrow and Forward Purchase Agreement in substantially the form attached hereto and made a part hereof as Exhibit B and the Escrow and Forward Purchase Agreement in substantially the form attached hereto and made a part hereof as Exhibit C, are hereby accepted, approved and authorized to be executed and delivered in such forms, with such changes and modifications as the respective City Attorneys shall approve as necessary and appropriate as evidenced by their execution thereof, to the respective parties set forth in such Agreements. Such Agreements shall be executed on behalf of the City of Dallas by the City Manager, with its corporate seal impressed thereon, attested by the City Secretary, and approved as to form by the City Attorney Such Agreements shall be executed on behalf of the City of Fort Worth by the City Manager, with its corporate seal impressed thereon, attested by the City Secretary, and approved as to form and legality by the City Attorney After such execution the Escrow and Forward Purchase Agreement shall be forwarded- by the Dallas-Fort Worth International Airport Board along with the transcript of proceedings relating to the Bonds for approval by the Attorney General of Texas as a "Credit Agreement" in accordance with Article 717q, V.A.T C.S. APPROVED AND ADOPTED BY THE DALLAS CITY COUNCIL THIS NOVEMBER 14, 1990. APPROVED AS TO FORM. Analeslie Muncy, City Attorney, City of Dallas, Texas PASSED NOVEMBER 13, 199C ~° ~ ~~ , _r ~. ~.~ ~ , _ n $ A r •.. r ATTEST' City Secretary, City of Fort Worth, Texas APPROVED AS TO FORM AND LEGALITY ~~ City Attorney, City of Fort Worth, Texas 2 DALLAS-FORT WORTH INTERNATIONAL AIRPORT SERIES 1992A ESCROW AGREEMENT THIS DALLAS-FORT WORTH INTERNATIONAL AIRPORT SERIES 1992A ESCROW AGREEMENT, dated as of November 1, 1990 (herein, together with any amendments or supplements hereto, called the "Agreement") is entered into by and between the Cities of Dallas and Fort Worth, Texas (herein called the "Issuer"), duly organized and existing Home Rule Cities, and NCNB Texas National Bank, as escrow agent (herein, together with any successor in such capacity, called the "Escrow Agent"), a banking corporation organized under the laws of the United States of America. WITNESSETH. WHEREAS, the Issuer has heretofore issued and there presently remain outstanding $110,700,000 Dallas-Fort Worth Regional Airport Joint Revenue Bonds, Series 1982A maturing November 1, 2012, (the "Refunded Obligations") and attached as Exhibit A hereto is a schedule showing the amounts due on the such Series 1982A Bonds on May 1, 1992, the first optional redemption date; and WHEREAS, when the firm banking arrangements have been made for the payment of principal and .interest to the maturity or redemption date 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 WHEREAS, Article 717k, Vernon's Annotated Texas Civil Statutes, authorize the Issuer to issue refunding bonds and to deposit the proceeds from the sale thereof, and any other available funds or resources, directly with one of the places of payment (paying agent) for the Refunded Obligations, and such deposit, if made before such payment dates, shall constitute the making of firm banking and financial arrangements for the discharge and final payment of the Refunded Obligations; and WHEREAS, Article 717k further authorizes the Issuer to enter into an escrow agreement with any paying agent or trustee for the Refunded Obligations with respect to the safekeeping, investment, administration and disposition of any such deposit, upon such terms and conditions as the Issuer and such paying agent or trustee may agree, provided that such deposits may be invested only in direct obligations of the United States of America, including obligations the principal of and interest on which are unconditionally guaranteed by the United States of America, and which may be in book entry form, and which shall mature and/or bear interest payable at such times and in such amounts as will be sufficient co provide for the scheduled payment of the Refunded Obligations; and WHEREAS, NCNB Texas National Bank, is the paying agent for the Refunded Obligations and this Agreement constitutes an escrow agreement as authorized and permitted by said Article 717k; and WHEREAS, Article 717k provides that, after the proceedings authorizing such refunding bonds shall be approved by the Attorney General of Texas and registered by the Comptroller of Public Accounts, such refunding bonds may be sold and delivered to the purchaser thereof in order to permit the issuer, in timely manner determined by the issuer, to use the proceeds from such sale and delivery to make all or any part of said deposit; and WHEREAS, Issuer wishes to take advantage of current low tax-exempt interest rates, but is precluded under federal tax law from delivering the Refunding Bonds (hereinafter defined) more than ninety days prior to the redemption date of the Refunded Bonds; and WHEREAS, pursuant to the Escrow and Forward Purchase Agreement the Issuer has entered into a forward purchase commitment with the purchasers thereof for the Refunding Bonds pursuant to which the Issuer will be required to deliver all or a portion of the Refunding Bonds on February 5, 1992 in accordance with the provisions of such Escrow and Forward Purchase Agreement; and WHEREAS, concurrently herewith the Issuer has adopted an ordinance (the "Ordinance") authorizing the issuance and sale of not to exceed $116,280,000 of Dallas-Fort Worth Regional Airport Joint Revenue Refunding Bonds, Series 1992A (the "Refunding Bonds") for the purpose, among others, of providing amounts sufficient to provide for the payment of the principal of the Refunded Obligations on May 1, 1992, the applicable premium of two percent (2%) and interest thereon to such date; and WHEREAS, the Issuer desires that, concurrently with the delivery of the Refunding Bonds to the purchasers thereof, on February 5, 1992 the proceeds of the Refunding Bonds together with certain other available funds of the Issuer to be deposited with the Escrow Agent pursuant to the Ordinance, shall be applied to purchase direct obligations of the United States of America hereinafter defined as the Escrowed Securities for deposit to the credit of the Escrow Fund created pursuant to the terms of this Agreement and to establish a beginning cash balance in such Escrow Fund; and WHEREAS, the Escrowed Securities shall mature and the interest thereon shall be payable on or prior to May 1, 1992 so as to provide moneys which, together with cash balances from time to time on deposit in the Escrow Fund, will be sufficient to pay the interest on, the principal of, and the redemption premium on, the Refunded Obligations to the call date, May 1, 1992; and WHEREAS, the Escrow Agent is also a party to this Agreement to acknowledge its acceptance of the terms and provisions hereof and the receipt of its fee for such services to be performed under this Agreement; NOW, THEREFORE, in consideration of the mutual undertakings, promises and agreements herein contained and the payment of the fee of the Escrow Agent, the sufficiency of which hereby are acknowledged, and to secure the full and timely payment of principal, premium of and interest on the Refunded Obligations, the Issuer, the Board and the Escrow Agent mutually undertake, promise, and agree for themselves and their respective representatives and successors, as follows. ARTICLE I DEFINITIONS AND INTERPRETATIONS Section 1.01. Definitions. Unless the context clearly indicates otherwise, the following terms shall have the meanings assigned to them below when they are used in this Agreement: "Board" means the Dallas-Fort Worth International Airport Board established by the Contract and Agreement, dated as of April 15, 1968 by and between the Issuer to develop, operate and maintain the Dallas-Fort Worth International Airport. "Board Representative" means the Executive Director, Deputy Executive Director, Senior Director Finance and Administration, the Director of Finance or such other officer or employee of the Board as shall be hereafter designated as such by resolution of the Board of Directors of the Board. "Code" means the Internal Revenue Code of 1986, as amended, and the rules and regulations thereunder 2 "Escrow and Forward Purchase A~~eement" means the Escrow and Forward Purchase Agreement, dated as of November 17, 1990 among the Issuer, Board, The First Boston Corporation and Chase Manhattan Bank, N.A. "Escrow Agent" means NCNB Texas National Bank, and its successors as Escrow Agent under this Agreement. "Escrow Fund" means the fund created by this Agreement to be administered by the Escrow Agent pursuant to the provisions of this Agreement. "Escrowed Securities" means the noncallable United States Treasury obligations or the State and Local Government Series obligations maturing not later than May 1, 1992 which the Escrow Agent is directed by the Board Representative to purchase with the funds deposited on February 5, 1992 and any substitute securities or reinvestments all as provided in Article IV hereof. "Issuer" means the City of Dallas, Texas and the City of Fort Worth, Texas. "Payin¢ Agents" means. with respect to the Series 1982A Bonds, Bank One, formerly MBank Dallas, N.A., and also formerly Mercantile National Bank at Dallas; NCNB Texas National Bank, formerly First RepublicBank Fort Worth, National Association, and also formerly The First National Bank of Fort Worth, and Morgan Guaranty Trust Company of New York. "Refunded Obligations" means all or such portion of the Issuer's obligations more fully described in the first recital beginning on page 1 of this Agreement as shall be determined on February 5, 1992 in accordance with Section 2.01 hereof to have been defeased without regard to reinvestment of such funds. "Refundine Bonds" means the Dallas-Fort Worth Regional Airport Joint Revenue Refunding Bonds, Series 1992A. Section 1.02. Interpretations. The titles and headings of the articles and sections of this Agreement have been inserted for convenience and reference only and are not to be considered a part hereof and shall not in any way modify or restrict the terms hereof. This Agreement and all of the terms and provisions hereof shall be liberally construed to effectuate the purposes set forth herein and to achieve the intended purpose of providing for the refunding of the Refunded Obligations in accordance with applicable law ARTICLE II DEPOSIT OF FUNDS Section 2.01. Deposit in the Escrow Fund. The Issuer will deposit, or pose to be deposited, in the Escrow Fund on February 5, 1992, an amount of funds in accordance with Section 5.1 of the Ordinance. Immediately after such deposit of funds the Escrow Agent and a Board Representative shall determine and agree on the maximum number of Series 1982A Bonds maturing November 1, 2012 which pn be defeased as of such date as to principal, applipble premium and interest for the six months ended May 1, 1992, after payment of the Paying Agent charges for the Series 1982A Bonds of such maturity and without regard to investment or reinvestment of such funds in Escrow Securities (the "Refunded Obligations"). If less than all of the Series 1982A Bonds are to be redeemed the Board shall select by lot the Refunded Obligations prior to the close of business on February 5, 1992. The Escrow Agent is hereby inevopbly directed to publish as soon as practipble, after the determination of the amount of Series 1982A Bonds to be redeemed on May 1, 1992 and the selection by lot of the specific Series 1982A Bonds of such maturity to be redeemed, a notice of redemption in accordance with the requirements of Section 3.4 of the Eleventh Supplemental Ordinance of the Issuer concurrently adopted on November 16th and 17th of 1982. ARTICLE III CREATION AND OPERATION OF ESCROW FUND Section 3.01. Escrow Fund. The Escrow Agent has created on its books a special trust fund and irrevocable escrow to be known as the Dallas-Fort Worth International Airport Series 1992A Escrow Fund (the "Escrow Fund"). The Escrow Agent hereby agrees to deposit to the credit of the Escrow Fund the moneys described in Section 2.01. Such moneys and the Escrowed Securities and all proceeds therefrom shall be the property of the Escrow Fund, and shall be applied only in strict conformity with the terms and conditions of this Agreement. All of the Escrowed Securities, all proceeds therefrom and all cash balances from time to time on deposit in the Escrow Fund are hereby irrevocably pledged to the payment of the principal of and interest on the Refunded Obligations, which payment shall be made by timely transfers of such amounts at such times as are provided for in Section 3.02 hereof. The balance then remaining in the Escrow Fund after making the transfer contemplated by Section 3.02 hereof representing earnings on the Escrowed Securities, if any, shall be transferred to the Interest and Sinking Fund and applied to the next interest payment with respect to the Refunding Bonds. Section 3.02. Payment of Principal. Premium and Interest. The Escrow Agent is hereby irrevocably instructed to transfer from the cash balances from time to time on deposit in the Escrow Fund to the Paying Agents, the amounts required to pay the principal of the Refunded Obligations on May 1, 1992, the applicable two percent (2%) premium and interest thereon to such date. Section 3.03. Sufficiency of Escrow Fund. If, for any reason, at any time, the cash balances on deposit or scheduled to be on deposit in the Escrow Fund shall be insufficient to transfer the amounts required by the Paying Agents to make the payments set forth in Section 3.02 hereof, the Issuer shall timely deposit in the Escrow Fund, from lawfully available funds, additional funds in the amounts required to make such payments. Notice of any such insufficienry shall be given promptly as hereinafter provided, but the Escrow Agent shall not in any manner be responsible for any insufficiency of funds in the Escrow Fund or the Issuer's failure to make additional deposits thereto. Section 3.04. Trust Fund. The Escrow Agent shall hold at all times the Escrow Fund, the Escrowed Securities and all other assets of the Escrow Fund, wholly segregated from all other funds and securities on deposit with the Escrow Agent; it shall never allow the Escrowed Securities or any other assets of the Escrow Fund to be commingled with any .other funds or securities of the Escrow Agent; and it shall hold and dispose of the assets of the Escrow Fund only as set forth herein. The Escrowed Securities and other assets of the Escrow Fund shall always be maintained by the Escrow Agent as trust funds for the benefit of the holders of the Refunded Obligations; and a special account therefore shall at all times be maintained on the books of the Escrow Agent. The holders of the Refunded Obligations shall be entitled to the same preferred claim and first lien upon the Escrowed Securities, the proceeds thereof and all other assets of the Escrow Fund to which they were entitled as holders of the Refunded Obligations. The amounts received by the Escrow Agent under this Agreement shall not be considered as a banking deposit by the Issuer, and the Escrow Agent shall have no right to title with respect thereto except as a constructive trustee and Escrow Agent under the terms of this Agreement. The amounts received by the Escrow Agent under this Agreement shall not be subject to warrants, drafts or checks drawn by the Issuer or the Board or, except to the extent expressly herein provided, by the Paying Agents. Section 3.05. Security for Cash Balances. Cash balances from time to time on deposit in the Escrow Fund shall, to the extent not insured by the Federal Deposit Insurance Corporation or its successor, be continuously secured by a pledge of direct obligations of, or obligations unconditionally guaranteed by, the United States of America, having a market value at least equal to such cash balances. 4 ARTICLE IV LIMITATION ON INVESTMENTS Section 4.01. Except as provided in Sections 4.02 and 4.03 hereof, the Escrow Agent shall not have any power or duty to invest or reinvest any money held hereunder Section 4.02. Investment and Reinvestments. Upon written direction of~a Board Representative the Escrow Agent shall invest from time to time all or a portion of the moneys initially received hereunder in Escrowed Securities, shall reinvest cash balances representing receipts from the Escrowed Securities or hold such proceeds as cash, together with other moneys or securities held in the Escrow Fund provided that the Board Representative delivers to the Escrow Agent with respect to each such transaction, an unqualified opinion of nationally recognized municipal bond counsel to the effect that (a) such investment or reinvestment will not cause the Refunded Obligations to be "arbitrage bonds" within the meaning of Section 148 of the Code or Section 103([) of the Internal Revenue Code of 1954, as amended, or the regulations thereunder in effect on the date of such investment or reinvestment, or otherwise make the interest on the Refunded Obligations subject to federal income taxation, and (b) such investment or reinvestment wmplies with the Constitution and laws of the State of Texas and with all relevant documents relating to the issuance of the Refunded Obligations. The Escrow Agent shall have no responsibility or liability for loss or otherwise with respect to investments made at the written direction of the Board Representative in accordance with the preceding paragraph. Section 4.03. Arbitrarre. The Issuer hereby covenants and agrees that it shall never request the Escrow Agent to exercise any power hereunder or permit any part of the money in the Escrow Fund or proceeds from the sale of Escrowed Securities to be used directly or indirectly to acquire any securities or obligations if the exercise of such power or the acquisition of such securities or obligations would cause any Refunding Obligations or Refunded Obligations to be an "arbitrage bond" within the meaning of Section 148 of the Code or Section 103([) of the Internal Revenue Code of 1954, as amended, or the regulations [hereunder then in effect. ARTICLE V APPLICATION OF CASH BALANCES Section 5.01. In General. Except as provided in Sections 3.02 and 4.02 hereof, no withdrawals, transfers, or reinvestment shall be made of cash balances in the Escrow Fund. ARTICLE VI RECORDS AND REPORTS Section 6.01. Records. The Escrow Agent will keep books of record and account in which complete and correct entries shall be made of all transactions relating to the receipts, disbursements, allocations and application of the money and Escrowed Securities deposited to the Escrow Fund and all proceeds thereof, and such books shall be available for inspection at reasonable hours and under reasonable conditions by the Issuer and the holders of the Refunded Obligations. Section 6.02. ReQorts. For the period beginning on February 5, 1992 and ending on May 1, 1992, the Escrow Agent shall prepare and send to the Issuer and to the Board, within thirty (30) days following the end of such period a written report summarizing all transactions relating to the Escrow Fund during S such period, including without limitation credits to the Escrow Fund as a result of interest payments on or maturities of the Escrowed Securities and transfers from the Escrow Fund for payments on the Refunded Obligations or otherwise, together with a detailed statement of all Escrowed Securities and the cash balance on deposit in the Escrow Fund as of the end of such period. ARTICLE VII CONCERNING THE PAYING AGENTS AND ESCROW AGENT Section 7.01. Representations. The Escrow Agent hereby represents that it has all necessary power and authority to enter into this agreement and undertake the obligations and responsibilities imposed upon it herein, and that it will carry out all of its obligations hereunder Section 7.02. Limitation on Liability The liability of the Escrow Agent to transfer funds for the payment of the principal of and interest on the Refunded Obligations shall be limited to the proceeds of the Escrowed Securities and the cash balances from time to time on deposit in the Escrow Fund. Notwithstanding any provision contained herein to the contrary, neither the Escrow Agent nor the Paying Agents shall have any liability whatsoever for the insufficiency of funds from time to time in the Escrow Fund or any failure of the obligors of the Escrowed Securities to make timely payment thereon, except for the obligation to notify the Issuer promptly of any such occurrence. The recitals herein and in the proceedings authorizing the Refunding Obligations shall be taken as the statements of the Issuer and shalt not be considered as made by, or imposing any obligation or liability upon, the Escrow Agent. In its capacity as Escrow Agent, it is agreed that the Escrow Agent need look only to the terms and provisions of this Agreement. The Escrow Agent makes no representations as to the value, conditions or sufficiency of the Escrow Fund, or any part thereof, or as to the title of the Issuer thereto, or as to the security afforded thereby or hereby, and the Escrow Agent shall not incur any liability or responsibility in respect to any of such matters. It is the intention. of the parties hereto that the Escrow Agent shall never be required to use or advance its own funds or otherwise incur personal financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder The Escrow Agent shall not be liable for any action taken or neglected to be taken by it in good faith in any exercise of reasonable pre and believed by it to be within the discretion or power conferred upon it by this Agreement, nor shall the Escrow Agent be responsible for the consequences of any error of judgment; and the Escrow Agent shall not be answerable except for its own action, neglect or default, nor for any loss unless the same shall have been through its negligence or want. of good faith. Unless it is specifiplly otherwise provided herein, the Escrow Agent has no duty to determine or inquire into the happening or occurrence of any event or contingency or the performance or failure of performance of the Issuer with respect to arrangements or contracts with others, with the Escrow Agent's sole duty hereunder being to safeguard the Escrow Fund, to dispose of and deliver the same in accordance with this Agreement. If, however, the Escrow Agent is piled upon by the terms of this Agreement to determine the occurrence of any event or contingency, the Escrow Agent shall be obligated, in making such determination, only to exercise reasonable pre and diligence, and in event of error in making such determination the Escrow Agent shall be liable only for its own misconduct or its negligence. In determining the occurrence of any such event or contingency the Escrow Agent may request from the Issuer or any other person such reasonable additional evidence as the Escrow Agent in its discretion may deem necessary to determine any fact relating to the occurrence of such event or contingency, and in this connection may make inquiries of, and consult with, among others, the Issuer at any time. 6 Section 7.03. Compensation. The Issuer has caused to be paid to the Escrow Agent, as a fee for performing the services hereunder, for alt expenses incurred or to be incurred by the Escrow Agent in the administration of this Agreement the sum of $500.00, the receipt and sufficiency of which are hereby acknowledged by the Escrow Agent. In the event that the Escrow Agent is requested to perform any extraordinary services hereunder as Escrow Agent, the Issuer hereby agrees to pay reasonable fees to the Escrow Agent for such extraordinary services and to reimburse the Escrow Agent for all expenses incurred by the Escrow Agent in performing such extraordinary services, including counsel fees, and the Escrow Agent hereby agrees to look only to the Issuer for the payment of such fees and reimbursement of such expenses. The Escrow Agent hereby agrees that in no event shall it ever assert any claim or lien against the Escrow Fund for any fees for its services whether regular or extraordinary, as Escrow Agent, or in any other capacity, or for reimbursement for any of its expenses. Section 7.04. Successor Escrow Agents. If at any time the Escrow Agent or its legal successor or successors should become unable, through operation of law or otherwise, to act as escrow agent hereunder, or if its property and affairs shall be taken under the control of any state or federal court or administrative body because of insolvency or bankruptcy or for any other reason, a vacancy shall forthwith exist in the office of Escrow Agent hereunder In such event the Issuer, by appropriate resolution or ordinance, shall promptly appoint an Escrow Agent to fill such vacancy If no successor Escrow Agent shall have been appointed by the Issuer within 60 days, a successor may be appointed by the holders of a majority in principal amount of the Refunded Obligations then outstanding by an instrument or instruments in writing filed with the Issuer, signed by such holders or by their duly authorized attorneys-in-fact. If, in a proper case, no appointment of a successor Escrow Agent shall be made pursuant to the foregoing provisions of this section within three months after a vacancy shall have occurred, the holder of any Refunded Obligation may apply to any court of competent jurisdiction to appoint a successor Escrow Agent. Such court may thereupon, after such notice, if any, as it may deem proper, prescribe and appoint a successor Escrow Agent. Any successor Escrow Agent shall be a corporation or banking association organized and doing business under the laws of the United States or the State of Texas, authorized under such laws to exercise corporate trust powers, having its principal office and place of business in the State of Texas, having a combined capital and surplus of at least $5,000,000 and subject to the supervision or examination by Federal or State authority Any successor Escrow Agent shall execute, acknowledge and deliver to the Issuer and the Escrow Agent an instrument accepting such appointment hereunder, and the Escrow Agent shall execute and deliver an instrument transferring to such successor Escrow Agent, subject to the terms of this Agreement, all the rights, powers and trusts of the Escrow Agent hereunder Upon the request of any such successor Escrow Agent, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Escrow Agent all such rights, powers and duties. The Escrow Agent shall pay over to its successor Escrow Agent a proportional part of the Escrow Agent's fee hereunder ARTICLE VIII MISCELLANEOUS Section 8.01. Notice. Any notice, authorization, request, or demand required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given when mailed by registered or certified mail, postage prepaid addressed as follows. To the Escrow Agent: NCNB Texas National Bank 500 West 7th Street, 11th Floor Fort Worth, Texas 76102 Attention: Corporate Trust Department To the Issuer City of Dallas, Texas 1500 Marilla Dallas, Texas 75201 Attention. City Manager City of Fort Worth, Texas 1000 Throckmorton Street Fort Worth, Texas 76102 Attention. City Manager To the Board: Dallas-Fort Worth International Airport Board P O. Box DFW Dallas-Fort Worth International Airport, Texas 75261 Attention. Director of Finance The United States Post Office registered or certified mail receipt showing delivery of the aforesaid shall be conclusive evidence of the date and fact of delivery Any party hereto may change the address to which notices are to be delivered by giving to the other parties not less than ten (10) days prior notice thereof. Section 8.02. Termination of Responsibilities. Upon the taking of all the actions as described herein by the Escrow Agent, the Escrow Agent shall have no further obligations or responsibilities hereunder to the Issuer, the Board, the holders of the Refunded Obligations or to any other person or persons in connection with this Agreement. Section 8.03. Binding Agreement. This Agreement shall be binding upon the Issuer, the Board and the Escrow Agent and their respective successors and legal representatives, and shall inure solely to the benefit of the holders of the Refunded Obligations, the Issuer, the Escrow Agent and their respective successors and legal representatives. Section 8.04. Severabilitv. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but this Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. Section 8.05. Texas Law Governs. This Agreement shall be governed exclusively by the provisions hereof and by the applicable laws of the State of Texas. Section 8.06. Time of the Essence. Time shall be of the essence in the performance of obligations from time to time imposed upon the Escrow Agent by this Agreement. 8 EXECUTED as of the date first written above. CITY OF DALLAS, TEXAS By City Manager " (SEAL) ATTEST Ciry Secretary APPROVED AS TO FORM. City Attorney CITY OF FORT WORTH, TEXAS ay City Manager (SEAL) ATTEST City Secretary APPROVED AS TO FORM AND LEGALITY City Attorney 9 NCNB TEXAS NATIONAL BANK By Title (BANK SEAL) ATTEST Title 10 EXHIBIT A Amounts Due on Refunded Obligations on May 1, 1992~1~ Principal Premium Interest Total $110,700,000 2,214,000 $5,950,125 $118,864,125 ~'~ Assumes all Refunded Obligations are called for redemption. For purposes of the computation required by Section 2.01 the minimum amount necessary per $5,000 maturity amount is $5,368.75 R EXHIBIT B REDss"' REFUNDING ESCROW DEPOSITS Escrow Receipts evidencing forward purchase of an aggregate principal amount of $116,280,000 DALLAS-FORT WORTH REGIONAL AIRPORT Joint Revenue Refunding Bonds, Series 1992A AGREEMENT TO ENTER INTO ESCROW AND FORWARD PURCHASE AGREEMENT November 14, 1990 Dallas-Fort Worth International Airport Board Dallas-Fort Worth Airport, Texas City of Dallas Dallas, Texas City of Fort Worth Fort Worth, Texas Ladies and Gentlemen: The First Boston Corporation ("First Boston"), on behalf of itself, Merrill Lynch & Co., Apex Securities Inc. and WR Lazard, Laidlaw & Mead Incorporated (collectively referred to herein as the "Underwriters"), hereby offers to enter .into this Agreement to Enter Into Escrow and Forward Purchase Agreement (this "Agreement") with you (herein called the "Board" and the "Cities", respectively). Upon your acceptance of this often, this Agreement will be binding upon each of you and the Underwriters. This offer is made subject to your acceptance at or prior to 6:00 P.M., Texas time, on November 14, 1990, and, if not so accepted, will be subject to withdrawal by the Underwriters upon written notice delivered to the Board at any time prior to such acceptance. 1. Forward Purchase of the Refunding Bonds. On the basis of the representati-ons, warranties, covenants and agreements herein contained, but subject to the terms and conditions herein set forth, First Boston, as representative of the Underwriters, the Board and the Cities hereby agree to enter into that certain Escrow and Forward Purchase Agreement in substantially the form heretofore agreed upon and approved by the Cities on the date hereof (the "Escrow Agreement") for the purpose of providing for the forward purchase of $116,280,000 aggregate principal amount of Joint Revenue Refunding Bonds, Series 1992A (the "Refunding Bonds") to be issued jointly by the Cities and the provision of one or more letters of credit to secure the obligation of the Owners (as defined in the Escrow Agreement) to pay liquidated damages in the event of their failure to purchase the Refunding Bonds. 2. Background. (a) Pursuant to a Contract and Agreement Between the Cities, dated and effective as of April 15, 1968 (the "Contract Between the Cities"), the Cities authorized and directed the Board, acting on behalf of the Cities, to proceed with the development of the Dallas-Fort Worth International Airport (the "Airport"). Pursuant to the Contract Between the Cities, the City Councils of the Cities on November it and 12, 1968, adopted the 1968 Regional Airport Concurrent Bond Ordinance (the "1968 Ordinance") authorizing the issuance of Dallas-Fort Worth Regional Airport Joint Revenue Bonds for the financing of the Airport. The Refunding Bonds will constitute "Refunding Bonds" under the 1968 Ordinance and will be issued under the provisions of the 1968 Ordinance, as supplemented and amended, including the Eighteenth Supplemental Regional Airport Concurrent Bond Ordinance, adopted by the City Council of the City of Dallas on November 14, 1990 and by the City Council of the City of Fort Worth on November 13, 1990 (the "Series 1992A Ordinance"). The Refunding Bonds will be issued to refund, by redemption on May 1, 1992, Dallas-Fort Worth Regional Airport, Joint Revenue Bonds, Series 1982A maturing on November 1, 2012. Tha 1968 Ordinance as originally enacted is hereinafter referred to as the "Original Ordinance" and, as amended and supplemented, as the "Ordinance". As of the date hereof, no ordinances amending or supplementing the Original Ordinance have been enacted other than Supplemental Ordinances One through Eighteen. 2 7598 6 (b) The Refunding Bonds will be issued under the provisions of Articles 46d, 1269j-5.1, 717k and 717q, V.A.T.C.S., as amended (the "Act") and the Ordinance. (c) The respective officers of the Airport, auditors, counsel and advisors referred to in this Agreement are Executive Director: Mr. Oris W. Dunham, Jr., Executive Director of the Airport Senior Director: Mr. James H. Chubbock, Senior Director for Finance and Administration Co-Bond Counsel: McCall, Parkhurst & Horton and Hutchison Boyle Brooks & Fisher Accountants: Arthur Andersen & Co. Financial Advisors: First Southwest Company, Dallas, Texas Counsel to the Underwriters: Dewey Ballantine The Refunding Bonds shall be dated, shall bear interest, shall mature and shall be redeemable and shall otherwise be as described in a final official statement dated November 14, 1990, as supplemented by a Supplement of the same date, substantially in the form of the official statement, as supplemented, attached as Exhibit A hereto, together with any changes thereto, the provisions of which are incorporated herein by reference (hereinafter, together with the cover page and any and all appendices, exhibits, maps, reports and summaries included therein or attached thereto, called the "Official Statement"). 3. Execution and Delivery of Escrow Agreement. On December 4, 1990, or, at the option of First Boston, within five business days thereafter or on such other business day as shall have been mutually agreed upon by the Cities, the Board and First Boston (the "Closing Date"), (a) the Cities, the Board, First Boston, as representative of the Underwriters, and The Chase Manhattan Bank, N.A., as escrow agent (the "Escrow Agent"), shall execute and deliver the Escrow Agreement, (b) simultaneously therewith and in accordance with the terms of the Escrow Agreement, (i) First Boston, as initial Owner of the Escrow Receipts, shall cause a latter or letters of credit (the "Letter of Credit") permitting drawings in the full amount of Liquidated Damages (as set forth in the Otticial Statement) to be deposited with the Escrow Agent and (fi) the Escrow Agent shall issue Escrow Receipts (as defined in the Escrow Agreement) in the name of First Boston as initial Owner, said Escrow Receipts to evidence the obligation and right to purchase the Refunding Bonds, (c) the Escrow Receipts shall be transferred to such successor Owners as designated by First Boston, and (d) the Board shall pay the fee of the Underwriters in the amount of $1,773,270.00 for the offering and 3 ~9a 6 sale of the obligation and right to purchase the Refunding Bonds, as evidenced by the Escrow Receipts. The Letter of Credit (or the issuer or issuers thereof, as appropriate) shall satisfy the following requirements: (a) the Letter of Credit shall be an irrevocable, unconditional, direct-pay letter of credit, in substantially the form attached hereto as Exhibit B with such changes as may be approved in writing by the Director of Finance of the Board, issued by a domestic commercial bank or a domestic agency or branch of a foreign commercial bank (the "Letter of Credit Bank") (i) having outstanding long-term securities rated by either Moody's Investors Service or Standard & Poor's Corporation in one of the two highest rating categories (determined without gradation within categories) or (ii) the letter of credit of which, if utilized as credit support for the long-term debt securities of a third party, would result in such securities being rated in one of such rating categories (without regard to the creditworthiness of such third party), in either case, as evidenced by a writing from either such rating agency; (b) the Letter of Credit Bank shall expressly waive any interest in or claim against the Cities, the Board, the Escrow Agent or the Underwriters for reimbursement of drawings under the Letter of Credit, said waiver not to extend to any claim the Letter of Credit Bank may have against any party under any reimbursement or similar agreement between the Letter of Credit Bank and such party or rights arising under any such agreement; and (c) the Letter of Credit shall permit the transfer of the latter of Credit to a successor Escrow Agent as contemplated in Section 10 of the Escrow Agreement. It is anticipated that CUSIP identification numbers will be printed on the Escrow Receipts, but neither the failure to print such numbers on any Escrow Receipt nor any error with respect thereto shall constitute cause for a failure or refusal by First Boston or the Underwriters to perform its or their obligations hereunder or under the Escrow Agreement. It is understood that the Underwriters propose to make a bona fide public offering of the obligation and right to purchase the Refunding Bonds, as evidenced by the Escrow Receipts, initially at the public offering price or prices (or yields) set forth on the cover page of the Supplement to the Official Statement and that the 4 7596 6 public offering price or prices (or yields) may be changed from time to time by the Underwriters. 2. Representations Warranties and Covenants of the Cities and the Board. (a) The Cities, each as to itself only, represent that: (i) The Cities are and will be on the Closing Date duly organized and existing as home rule cities in the State of Texas with the powers and authority, among others, set forth in the Act. (ii) The Board is and will be on the Closing Date duly organized and existing as a joint airport board in the State of Texas with the powers and authority, among others, set forth in Article 46d, V.A.T.C.S., as amended, as limited by the Contract Between the Cities and the Ordinance and with the powers and authority to carry out and consummate the obligations imposed on it by this Agreement, the Escrow Agreement, the Contract Between the Cities and the Ordinance. (iii) On and as of February 5, 1992 (the "Issue Date"), the Refunding Bonds (a) will have been duly authorized, executed, issued and delivered in conformity with the Act and the Ordinance, and be entitled to the benefit and security of the Contract Between the Cities, the ordinance and the Act, and (b) will constitute valid and binding special obligations of the Cities of the character referred to in the Act, subject to bankruptcy, reorganization and other law affecting creditors' rights generally. (iv) The adoption on or prior to the date hereof of the Eighteenth Supplemental Ordinance and the Ordinance authorizing the execution and delivery of this Agreement, the Escrow Agreement, the Paying Agent/Registrar Agreement, dated as of November 1, 1990 by and between the Board and NCNB Texas National Bank (the "Paying Agent Agreement") and the Dallas- Fort Worth International Airport Series 1992A Escrow Agreement, dated as o! November 1, 1990, by and between the Cities and NCNB Texas National Bank (the "Refunding Escrow Agreement") and the consummation of the transactions contemplated thereby, the execution and delivery of this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Refunding Escrow Agreement and performance of their obligations hereunder and thereunder and the execution and delivery of the Refunding Bonds, will not conflict with or constitute on the part o! the Cities a breach of or a default under any agreement or instrument to which either of the Cities is a party or by which either is bound or any existing law, administrative regulation, court order or consent decree 5 ova 6 to which either of the Cities is subject and the Cities have no reason to believe that any such conflict, breach or default will exist as of February 5, 1992 (except that no representation is made with respect to Federal or state securities laws). (v) Assuming the due authorization, execution and delivery of this Agreement by the other parties hereto and the enforceability of this Agreement against such other parties, this Agreement is the valid and binding obligation of the Cities, enforceable against them in accordance with its tenas, subject to bankruptcy and other laws affecting creditors' rights generally. (vi) The Cities have no reason to believe that any of the representations by the Cities in this Section 3(a) will be incorrect in any material respect as of the Issue Date. (b) The Board represents that: (i) The Board is and will be on the Closing Date duly organized and existing as a joint airport board of the Cities having the powers and authority, among others, set forth in Article 46d, V.A.T.C.S., as amended, as limited by the Contract Between the Cities and Ordinance and with the powers and authority to carry out and consummate its obligations under this Agreement, the Escrow Agreement, the Paying Agent Agreement, the Refunding Escrow Agreement, the Contract Between the Cities and the Ordinance. (ii) The execution and delivery of this Agreement, the Escrow Agreement, the Paying Agent Agreement and the Refunding Escrow Agreement, and the performance by the Board of its obligations hereunder under the circumstances contemplated will not, as of the Closing Date, conflict with or constitute on the part of the Board a breach of or default under any agreement or other instrument to which the Board is a party or by which it is bound or any existing law, administrative ragulatfon, court order or consent decree to which the Board is subject (except that no representation is made as to Federal or state securities laws). The Board has duly authorized the execution and delivery of this Agreement and the Escrow Agreement. (iiij Both at the time of the execution of this Agreement by the Hoard and on the Closing Date, subject, however, to the provisions of Section 3(c) hereof, the statements and information contained in the Official Statement are and will be true, correct and complete in all material respects, and the Official Statement does not and will not omit any statement or information which is necessary to make 6 7598 6 the statements and information therein, in the light of the circumstances under which they were made, not misleading in any material respect. (iv) The financial statements included as Appendix B to the Official Statement have been prepared in all material respects on a consistent basis, aid present fairly the financial position of the Board and the results of the operation of the Airport at the dates and for the periods indicated and the statistical and other financial information contained in the Official Statement fairly presents the information with respect to the Airport purported to be shown. (c) The Cities and the Board represent that the Use Agreements (as defined in the Official Statement) are not inconsistent with or in violation of the provisions of the Ordinance or any other contract or agreement to which the Board is a party. (d) The Cities and the Board represent that, except as disclosed in the Official Statement, there are no pending or, to the knowledge of the Cities or the Board, threatened, legal, administrative or judicial proceedings: (i) contesting the corporate existence or powers of the Board or of the Cities with respect to the obligations of the Cities under the Contract Between the Cities, the Ordinance, this Agreement, the Escrow Agreement, any Bonds issued under the Ordinance or the Refunding Bonds; (ii) contesting or affecting the authority for the issuance of, or the security for, the Refunding Bonds, or seeking to restrain or enjoin the issuance or the delivery of the Escrow Receipts or the Refunding Bonds; (iii) contesting or affecting the validity of any Bonds issued under the Ordinance, the Ordinance, the Contract between the Cities, the Use Agreements, this Agreement or the Escrow Agreement; (iv) seeking to restrain or enjoin the collection of the income or revenues available or pledged under the Ordinance; (v) contesting or affecting in any way the ability of the Board to establish rates and charges for the use of the Airport consistent with the requirements of the Use Agreements; (vi) in which a final adverse decision would materially adversely affect the financial condition or operations of the Airport; or (iv) contesting in any way the completeness, accuracy or fairness o! the Official Statement. (e) The Cities represent that the Contract Between the Cities and the Ordinance are and on the Closing Date will be in full force and effect in accordance with their terms and, as of the Closing Date, will not have been amended, modified or supplemented except as the Official Statement shall disclose. The Board represents that the Use Agreements are and on the Closing Date will be in full force and effect in accordance with their terms and, as of the Closing Date, will not have been amended, modified or supplemented except as the Official Statement shall disclose and 7 7598 6 shall have been agreed to in writing by First Boston. The Cities and the Board represent that there shall have been duly adopted and there shall be in full force and effect such resolutions and ordinances as, in the opinion of Co-Bond Counsel, shall be necessary in connection with the transactions contemplated hereby and by the Escrow Agreement. (f) The Board hereby confirms that it has heretofore delivered to the Underwriters copies of a preliminary form of official statement, dated November 2, 1990, as supplemented by the Supplement to Preliminary Official Statement, dated November 2, 1990, (hereinafter, together with the cover page and any and all appendices, exhibits, reports and summaries included therein or attached thereto, called the "Preliminary Official Statement"), and ratifies and confirms the use thereof by the Underwriters and the distribution of copies thereof to prospective purchasers and investors. Each person named in the Preliminary Official Statement or the Official Statement as having prepared or examined any report, financial statements or other data therein has consented to being so named, except as otherwise stated therein and except with respect to published material referred to therein. The Preliminary Official Statement was complete, as of its date, except for (i) the omission of certain information as indicated therein by blanks and (ii) certain information set forth therein and referenced as being subject to change. (q) Promptly after acceptance hereof by the Cities, the Board shall deliver or cause to be delivered to the Underwriters five copies of the Official Statement, in the form attached hereto. The Board will provide to the Underwriters a sufficient quantity of copies of the Official Statement, not in excess of 300, within seven business days following the date of this Agreement to permit delivery of copies of the Official Statement to any potential purchasers of the obligation and right to purchase the Refunding Bonds as evidenced by the Escrow Receipts as required pursuant to Rule 15c2-12 ("15c2-12") promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Exchange Act of 1934, as amended. The Cities and the Board confirm that, as of the date of the Preliminary Official Statement, the Cities and the Board, solely for purposes of 15c2-12, deemed the information in the Preliminary Official Statement to have been final as of its date (except for the offering price, interest rates, selling compensation, delivery dates and other exceptions as are permitted by 15c2-12). (h) No authorization, approval, consent or order of or filing or registration with any court or governmental agency or body is required for the valid authorization, execution, issuance, sale or delivery of the Refunding Bonds or the exclusion from gross income of interest thereon for Federal income tax purposes (except S ~z9a b for "substantial users" or "related persons" as defined in Section 147(a) of the Internal Revenue Code of 1986, as amended (the "Code")) or the execution and delivery by the Cities and the Board of the Escrow Agreement or this Agreement except (i) such action as shall have been taken by the Cities and the Board prior to the execution and delivery of the Escrow Agreement, (ii) the filing of an information return with respect to the Refunding Bonds as, and at the time, required by Section 149(e) of the Code, (iii) such action as may be required to qualify the Refunding Bonds or the obligation and right to purchase the Refunding Bonds for sale under the Blue Sky or securities laws of any jurisdiction, and (iv) the conduct of public hearings and approval by an applicable elected representative of the issuance of the Refunding Bonds as required under Section 147(f) of the Code. 3. Covenants of the Cities and the Board. The Cities and the Board hereby covenant that: (a) The proceeds from the sale of the Refunding Bonds will be used or applied as is provided in the Ordinance (and, particularly, the Eighteenth Supplemental Ordinance) and herein. (b) The Cities and the Board will cooperate in qualifying the Escrow Receipts for offering and sale under the "Blue Sky" or other securities laws of those states designated by First Boston; provided, however, that neither the Cities nor the Board shall be required to consent to service of process in any state or place. (c) The Cities and the Board will promptly notify First Boston of any material change in the affairs or financial condition of the Airport or the Board which may occur prior to the completion of the initial distribution by the Underwriters of the Escrow Receipts. After such notification, if, in the opinion of the Cities, the Board, First Boston or Counsel to the Underwriters, a change would be required in the Official Statement in order to make the statements therein true and not misleading or incomplete in any material respect, then such change will be made and the Official Statement as ao amended will be supplied to the Underwriters for distribution. The initial distribution of the Escrow Receipts shall ba deemed to have been completed on the Closing Date unless the Underwriters shall have notified the Board prior to the Closing Date of an extension of such initial distribution period which in no event shall extend beyond the date which is sixty (60) days after the Closing Date. The Underwriters agree to notify the Hoard of the completion of the initial distribution period if extended beyond the Closing Date. (d) The Cities and the Board will advise the Underwriters promptly of any proposal to amend or supplement the Official Statement and will not effect any such amendment or 9 ~z9a e supplement prior to the completion of the initial distribution without the consent of the Underwriters. Prior to the completion of the initial distribution by the Underwriters of the Escrow Receipts, the Cities and the Board will advise the Underwriters promptly of the institution of any proceedings known by any of them by any governmental agency prohibiting or otherwise affecting the use of the Official Statement in connection with the offering, sale or distribution of the obligation and right to purchase the Refunding Bonds, as evidenced by the Escrow Receipts. (e) Between the time of acceptance hereof and the Closing Date, the Cities will not, without the prior written consent of the Underwriters, issue any bonds or securities payable from Pledged Revenues (as defined in the Ordinance). 4. Conditions to the Obligations of First Boston and the Underwriters. The obligations of First Boston to execute and deliver the Escrow Agreement on behalf of the Underwriters and, as initial Owner, to deposit with the Escrow Agent a letter or letters of credit as contemplated therein will be subject to the accuracy of the representations and warranties on the part of the Cities and the Board herein, to the accuracy of the statements of officers of the Cities and the Board made pursuant to the provisions hereof, to the performance by the Cities and the Board of their obligations hereunder and to the following additional conditions precedent: (a) On and as of the Closing Date, the Eighteenth Supplemental Ordinance shall have been duly approved by the Board and enacted by the City Councils of the Cities and shall be in full force and effect and the Ordinance shall not have been amended, modified or supplemented except as may have been agreed to in writing by First Boston, and the Cities and the Board shall have duly adopted and there shall be in full force and effect such resolutions, and the Cities and the Board and the officials and officers thereof, shall have taken such other action as in the opinion of Co-Bond Counsel shall be necessary or appropriate in connection with the Ordinance, with the execution and delivery of the Escrow Agreement and the Escrow Receipts and performance of the obligations of the Cities and the Board thereunder, with the execution and delivery of the Paying Agent Agreement and the Refunding Escrow Agreement, with the issuance of the Refunding Bonds and with the transactions contemplated thereby and hereby. No event of default shall have occurred and be continuing under the Ordinance, and no event shall have occurred and be continuing which with the lapse of time or the giving of notice or both would constitute such an event of default. (b) Subsequent to the acceptance of this Agreement by the Cities and the Board and prior to the Closing Date, there shall not have occurred any event materially and adversely affecting the Airport, the Board, the Cities or the transactions contemplated by the Escrow Agreement which, in the reasonable 1 ~ 759E 6 opinion of First Boston, is required to be set forth in an amendment or supplement to the Official Statement (whether or not the Official Statement shall have been amended or supplemented to set forth such event). (c) Subsequent to the acceptance of this Agreement by the Cities and the Board and prior to the Closing Date, the market price of the obligation and right to purchase the Refunding Bonds, or the market price of general credit or revenue obligations issued by states or political subdivisions thereof, or the market price of revenue obligations of the character of the Refunding Bonds, shall (in the judgment of First Boston) not have been materially and adversely affected by reason of the fact that: (i) legislation shall have been enacted by the Congress of the United States, or recommended to the Congress for passage by the President of the United States or favorably reported for passage to either House of the Congress by any Committee of such House to which such legislation has been referred for consideration, or otherwise endorsed for passage (by press release, other form of notice or otherwise) by the President of the United States, the Treasury Department of the United States, the Internal Revenue Service or the Chairman or ranking minority member of the Committee on Finance of the United States Senate or the Committee on Ways and Means of the United States House of Representatives, or (ii) a decision shall have been rendered by a court established under Article III of the Constitution of the United States, or the United States Tax Court, or (iii) an order, ruling or regulation shall have been made or proposed by the Treasury Department of the United States or the Internal Revenue Service, in each such case with the purpose or effect, directly or indirectly, of imposing Federal income taxation upon such interest as would be received by any holder of either series of the Refunding Bonds. (d) Subsequent to the acceptance of this Agreement by the Cities and tha Board and prior to the Closing Date, the market price of the obligation and right to purchase the Refunding Bonds, or the market price of general credit or revenue obligations issued by states or political subdivisions thereof, or the market price of revenue obligations of the character of the Refunding Bonds, shall (in the judgment of First Boston) have been materially and adversely affected by reason of: (ij any material change in the national or international financial or economic situation accompanied by (A) the closing of the Naw York Stock Exchange, or (B) the it ova e general suspension of trading on the New York Stock Exchange, or (C) the establishment of a general banking moratorium by Federal or New York State authorities or the authorities of the State of Texas; or (ii) the United States becoming engaged in any outbreak of armed hostilities (whether or riot foreseeable at the time of execution hereof) or hostilities previously commenced shall escalate. (e) On or prior to the Closing Date, no order, ruling, regulation, decree or injunction of any court of competent jurisdiction or of any governmental body or authority shall have been issued (whether in proposed, temporary or final form), and no judicial proceeding shall have been commenced, nor shall any legislation have been enacted or proposed for enactment, with the purpose or effect of prohibiting the issuance, offering, sale or distribution of the Escrow Receipts or the obligation and right to purchase the Refunding Bonds as contemplated hereby or by the Official Statement or performance by the Cities or the Board of their obligations under the Ordinance, the Escrow Agreement, this Agreement, the Fayinq Agent Agreement or the Refunding Agreement in accordance with their respective terms. (f) First Boston on behalf of the Underwriters shall have received signed copies of the opinion, dated the Closing Date, of Co-Bond Counsel, in the form attached hereto as Exhibit C. (q) First Boston on behalf of the Underwriters shall have received an opinion of Legal Counsel to the Board, in the form attached hereto as Exhibit D. (h) First Boston on behalf of the Underwriters shall have received a copy of an opinion of the Attorney General of the State of Texas relating to the Refunding Bonds and the Escrow Agreement rendered in accordance with Article 717q, V.A.T.C.S. (i) First Boston on behalf of the Underwriters shall have received signed copies of a certificate, dated the Closing Date, signed by the Executive Director or the Deputy Executive Director of the Board to the effect that (i) the representations and warranties of the Board contained herein are true and correct in all material respects on and as of the Closing Date with the samo effect as if made on the Closing Date; (ii) to the best of his knowledge, the Official Statement does not contain any untrue statement of a material fact or omit any statement of a material fact necessary to make the statements made, in the light of the circumstances under which they were made, not misleading; (iii) except as may otherwise be described in the Official Statement, no litigation is pending or, to his knowledge, threatened in any court in any way adversely affecting the legal existence of the Board or seeking to restrain or to enjoin the 12 ~qe.e issuance, sale, execution or delivery, as the case may be, of the Escrow Agreement, the Escrow Receipts, the obligation and right to purchase the Refunding Bonds, the Refunding Bonds, the Paying Agent Agreement or the Refunding Escrow Agreement or materially and adversely affecting the right of the Board to collect revenues and other moneys pledged or to be pledged to pay the principal of and interest on the Refunding Bonds or any Bonds issued under the Ordinance, or the pledge thereof, or in any way materially and adversely contesting or affecting the validity or enforceability of the Refunding Sonds, the Ordinance, the Use Agreements, the Paying Agent Agreement, the Refunding Escrow Agreement, this Agreement or the Escrow Agreement, or contesting the completeness or accuracy of the Preliminary Official Statement or the Official Statement, or contesting the power of the Cities or the Board or the authority of any of them with respect to the Airport, the Refunding Bonds, the Ordinance, this Agreement, the Use Agreements, the Paying Agent Agreement, the Refunding Escrow Agreement or the Escrow Agreement (but in lieu of or in conjunction with such certificate, First Boston may, in its sole discretion, accept certificates or opinions of counsel, acceptable to First Boston, that in the opinion of such counsel the issues raised in any such pending or threatened litigation are without substance or that the contentions of all plaintiffs therein are without merit); (iv) to the best of his knowledge, no event materially and adversely affecting the Airport or its operations or the transactions contemplated by the Escrow Agreement has occurred since the date of the Official Statement which, in the reasonable opinion of such officer, is required to be set forth in an amendment or supplement to the Official Statement (whether or not the Official Statement shall have been amended or supplemented to set forth such event); and (v) the Board has complied with all the requirements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date. (j) First Boston on behalf of the Underwriters shall have received signed copies of a certificate, dated the Closing Date, signed by an appropriate official of each of the Cities acceptable to First Boston to the effect that the representations and varrantias of such City contained herein are true and correct in all material respects on and as of the Closing Date with tha same effect as if made on the Closing Date. (k) First Boston on behalf of the Underwriters shall have received a latter from Arthur Andersen ~ Co., in substantially the form of Exhibit E hereto and a consent to the use of their reports on the financial statements of the Board in the Preliminary Official Statement and the Official Statement and to the references made to them in the Preliminary Official Statement and Official Statement. 13 7598 6 (1) First Boston on behalf of the Underwriters shall have received executed copies of the Paying Agent Agreement and the Refunding Escrow Agreement. (m) First Boston on behalf of the Underwriters shall have received such additional certificates, instruments and other documents as it may reasonably request to evidence the truth and accuracy as of the Closing Date of the representations and warranties of the Cities and the Board herein and the due performance or satisfaction by the Cities and the Board at or prior to the Closing Date of all agreements then to be performed and all conditions then to be satisfied by the Cities or the Board. (n) First Boston on behalf of the Underwriters shall have received the opinion, dated the Closing Date, of Dewey Ballantine, counsel to the Underwriters, in the form of Exhibit F hereto. The Cities and the Board will furnish First Boston with such conformed copies of such opinions, certificates, letters and documents as First Boston may reasonably request. If the Cities and the Board shall be unable to satisfy or cause to be satisfied any condition to the obligations of First Boston or the Underwriters contained in this Agreement and the satisfaction of such condition shall not be waived by First Boston or the Underwriters, as the case may be, this Agreement shall terminate and neither First Boston, the Underwriters, the Cities nor the Board shall have any further obligations or liabilities hereunder except as otherwise provided in Section 7. 5. ~nndil;,iOnB to Obligations of the Cities and the oa The obligations of the Cities and the Board hereunder will be subject to the following conditions precedent: (a) On or prior to the Closing Date, no order, ruling, regulation, decree or injunction of any court of competent jurisdiction or of any governmental body or authority shall have been issued (whether in proposed, temporary or final form), and no judicial proceeding shall have been commenced, nor shall any legislation have been enacted or proposed for enactment, with the purpose or effect of prohibiting the issuance, offering, sale or distribution of the Escrow Receipts or the obligation and right to purchase the Refunding Honds as contemplated hereby or by the Escrow Agreement or by the Official Statement or performance by First Boston, the Cities or the Board of their respective obligations under the Escrow Agreement or this Agreement in accordance with their respective terms; (b) The Cities and the Board shall have received the opinions of Co-Bond Counsel in the form of Exhibit G hereto; 14 ~59e s (c) The Cities and the Board shall have received the opinion of Dewey Ballantine in the form of Exhibit H hereto; (d) First Boston shall have deposited the Letter of Credit with the Escrow Agent; and (e) The Cities and the Board shall have received an opinion or opinions of counsel to the Letter of Credit Bank in the form set forth as Exhibit I hereto. b. Survival of Certain Representations and Obligations. The respective agreements, representations, warranties and other statements of the Cities and the Board and their officers set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of the Underwriters and will survive execution and delivery of the Escrow Agreement. If for any reason the. Escrow Agreement is not executed and delivered, the Cities and the Hoard shall remain responsible for the expenses to be paid or reimbursed by the Cities and the Board pursuant to Section 7. 7. Expenses. (a) The Cities or the Board will pay or cause to be paid from funds legally available to them all expenses incident to the performance of their obligations under this Agreement and the Escrow Agreement and the fulfillment of the conditions imposed hereunder, including but not limited to the cost of printing the Escrow Receipts and the Refunding Bonds and preparing and mailing this Agreement, the Escrow Agreement, the Ordinance, the Preliminary Official Statement, the Official Statement and any amendments or supplements thereto, in reasonable quantities, and all other documents prepared in connection with the transactions contemplated by this Agreement, the expenses of the Cities and the Board, the fees and disbursements of the Paying Agent/Registrar in connection with the Refunding Bonds, the fees and expenses of Co-Bond Counsel and of Counsel for the Board, the fees and expenses of The Bank of Tokyo, Ltd., New York Agency (the "Bank"), and their counsel, in connection with the issuance of the letter of credit to be initially deposited with the Escrow Agent any fees charged by investment rating agencies for ratings, and the fees and expenses of any auditors, consultants or others retained by the Cities or the Board in connection with the transactions contemplated herein. (b) The Underwriters will pay or cause to be paid the cost of preparation and printing any amendment or supplement to the Official Statement resulting from a determination by the Underwriters to change the initial offering prices or yields set forth in the Official Statement; alI advertising costs in connection with the public offering and sale of the ownership interests and rights and obligations evidenced by the Escrow Receipts, the expenses incurred by them in connection with the 15 ~59s s public offering and sale of the ownership interests and rights and obligations evidenced by the Escrow Receipts, the expenses incurred by them in connection with qualification of the ownership interests and rights and obligations evidenced by the Escrow Receipts for sale and the determination of their eligibility for investment under the Blue Sky and securities laws and legal investment laws of the several states, the fees and disbursements of counsel for the Underwriters, the fee of the Escrow Agent, and the charge of the CUSIP Service Bureau for the assignment of CUSIP numbers for the Escrow Receipts. 8. Purchase of Refunding Bonds. The Cities and the Board acknowledge that, under the terms of the Escrow Agreement, the purchase of the Refunding Bonds is the obligation of those persons who are Owners of the Escrow Receipts on December 15, 1991, and that the Underwriters (unless otherwise Owners and only to the extent then an Owner) shall have no obligation or right to purchase the Refunding Bonds or to pay all or any portion of the purchase price thereof, whether or not any Owner shall fail to pay any portion of the purchase price of the Refunding Bonds to be purchased by such Owner. It is provided, however, that nothing herein shall be construed to limit the right, power and duty of the Escrow Agent to draw upon, nor the obligation of the issuer of the Letter of Credit to honor draws under, the Letter of Credit (or any Substitute Letter of Credit as defined in the Escrow Agreement) in accordance with its terms and provisions. 9. Good Faith Check. First Boston herewith delivers to the Board a check drawn upon an account of The First Boston Corporation payable to the order of the Treasurer of the Board, in the amount of $1,100,000, as security for the performance by the Underwriters of their obligation to execute and deliver the Escrow Agreement and deposit the Letter of Credit with the Escrow Agent on the Closing Date in accordance with the provisions of this Agreement. Such check shall be held uncashed as such security and concurrently with the execution and delivery of the Escrow Agreement and deposit of the Latter of Credit on the Closing Date shall be returned to First Boston. In the event you do not accept this offer, or upon your failure to execute and deliver the Escrow Agreement on the Closing Date (for any reason other than the failure of the Underwriters to fulfill their obligations), or if you shall be unable to satisfy the conditions to the obligations of the Underwriters contained in this Agreement, or if such obligations shall be terminated for any reason permitted by this Agreement, such check shall be immediately returned to First Boston. In the event that the Underwriters fail (other than for a reason permitted under this Agreement) to execute and deliver the Escrow Agreement and deposit the Letter of Credit on the Closing Date, the good faith check shall be cashed by the Board and the amount thereof retained by the Board as and for full liquidated 16 eve e damages for such failure and for any and all defaults hereunder on the part of the Underwriters, and the cashing of such check shall constitute a full release and discharge of all claims and rights hereunder of you against the Underwriters. 10. Notices. All communications hereunder will be in writing, and mailed, delivered or telegraphed to. the addresses set forth below: To First Boston or the Underwriters: The First Boston Corporation Park Avenue Plaza New York, New York 10055 Attn: Ms. Carol Canfield To the Board: Dallas-Fort Worth International Airport Board P.O. Drawer DFW Dallas-Fort Worth Airport, Texas 75261 To the Cities: City of Dallas 1500 Marilla St. Dallas, Texas 75201 City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 11. Governinc I.aw. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Texas. 17 ~5va a 12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors, and no other person will have any right or obligation hereunder. THE FZRST BOSTON CORPORATION, on behalf of itself and Merrill Lynch & Co. Apex Securities Inc. WR Lazard, Laid.law & Mead Incorporated By Vice President 18 ~z9s 6 ACCEPTED: DALLAS-FORT WORTH INTERNATIONAL AIRPORT BOARD ATTEST: Secretary [SEAL] ATTEST: City Secretary [SEAL] COUNTERSIGNED: City Auditor By Executive Director CITY OF DALLAS ey City Manager AFPROVED AS TO FORM: City Attorney CITY OF FORT WORTH ATTEST: City Secretary [SEAL] By City Manager 19 7598 6 APPROVED AS TO FORM AND LEGALITY. City Attorney 2 0 7598 6