HomeMy WebLinkAbout01-3287ORDINANCE NO. 3287
AN ORDINANCE authorizing the issuance of "CITY OF PLAINVIEW, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM SURPLUS
REVENUE CERTIFICATES OF OBLIGATION, SERIES 2001"; specifying
the terms and features of said certificates; providing for the payment of
said certificates of obligation by the levy of an ad valorem tax upon all
taxable property within the City and a Pledge of the net revenues from the
operation of the City's Waterworks and Sewer System; and resolving
other matters incident and relating to the issuance, payment, security,
sale and delivery of said Certificates, including the approval and
execution of a Paying Agent/Registrar Agreement and the approval and
distribution of an Official Statement; and providing an effective date.
WHEREAS, notice of the City Council's intention to issue certificates of obligation in the
maximum principal amount of $10,000,000 for the purpose of paying contractual obligations to
be incurred for (i) improvements and extensions to the City's Sewer System, and (ii)
professional services rendered in relation to such projects and the financing thereof, has been
duly published in the Plainview Daily Herald, a newspaper hereby found and determined to be
of general circulation in the City of Plainview, Texas, on May 1, 2001 and May 8, 2001, the date
the first publication of such notice being not less than fifteen (15) days prior to the tentative date
stated therein for the passage of the ordinance authorizing the issuance of such certificates; and
WHEREAS, no petition protesting the issuance of the certificates of obligation and
bearing valid petition signatures of at least 5% of the qualified electors of the City, has been
presented to or filed with the Mayor, City Secretary or any other official of the City on or prior to
the date of the passage of this Ordinance; and
WHEREAS, the Council hereby finds and determines that the certificates of obligation
described in the aforesaid notice should be issued and sold at this time in the amount and
manner as hereinafter provided; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PLAINVIEW, TEXAS:
SECTION 1: Authorization, Designation, Principal Amount, Purpose. Certificates of
obligation of the City shall be and are hereby authorized to be issued in the aggregate principal
amount of $10,000,000, to be designated and bear the title "CITY OF PLAINVIEW, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM SURPLUS REVENUE CERTIFICATES OF
OBLIGATION, SERIES 2001" (hereinafter referred to as the "Certificates"), for the purpose of
paying contractual obligations to be incurred for (i) improvements and extensions to the City's
Sewer System, and (ii) professional services rendered in relation to such projects and the
financing thereof, pursuant to authority conferred by and in conformity with the Constitution and
laws of the State of Texas, including V.T.C.A., Local Government Code, Subchapter C of
Chapter 271, as amended.
45039432.1 1
SECTION 2: Fully Registered Obligations - Authorized Denominations-Stated
Maturities-Date. The Certificates are issuable in fully registered form only; shall be dated
May 15, 2001 (the "Certificate Date") and shall be in denominations of $5,000 or any integral
multiple thereof (within a Stated Maturity) and the Certificates shall become due and payable on
March 1 in each of the years and in principal amounts (the "Stated Maturities") and bear interest
at the per annum rate(s) in accordance with the following schedule:
Year of Principal Interest
Stated Maturity Amount Rate(s)
2OO2
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
$305,000
320,000
335,000
355,000
370,000
390,000
410 000
430 000
450 000
470 000
490 000
515 000
540 000
565.000
595.000
625.000
655 000
690 000
725,000
765,000
5.50%
5.50%
5.50%
5.50%
5.50%
5.50%
4.80%
4.75%
4.50%
4.50%
4.55%
4.625%
4.70%
4.80%
4.85%
4.90%
5.00%
5.00%
5.00%
5.00%
The Certificates shall bear interest on the unpaid principal amounts from the Certificate
Date at the rates per annum shown above in this Section (calculated on the basis of a 360-day
year of twelve 30-day months), and such interest shall be payable on March 1 and September 1
of each year, commencing September 1, 2001.
SECTION 3: Terms of Payment-Paying Agent/Registrar. The principal of, premium, if
any, and the interest on the Certificates, due and payable by reason of maturity, redemption, or
otherwise, shall be payable only to the registered owners or holders of the Certificates
(hereinafter called the "Holders") appearing on the registration and transfer books maintained by
the Paying Agent/Registrar and the payment thereof shall be in any coin or currency of the
United States of America, which at the time of payment is legal tender for the payment of public
and private debts, and shall be without exchange or collection charges to the Holders.
45039432.1 2
The selection and appointment of The Bank of New York, New York, New York to serve
as Paying Agent/Registrar for the Certificates is hereby approved and confirmed. Books and
records relating to the registration, payment, transfer and exchange of the Certificates (the
"Security Register") shall at all times be kept and maintained on behalf of the City by the Paying
Agent/Registrar, as provided herein and in accordance with the terms and provisions of a
"Paying Agent/Registrar Agreement", substantially in the form attached hereto as Exhibit A,
and such reasonable rules and regulations as the Paying Agent/Registrar and the City may
prescribe. The Mayor and City Secretary are authorized to execute and deliver such Agreement
in connection with the delivery of the Certificates. The City covenants to maintain and provide a
Paying Agent/Registrar at all times until the Certificates are paid and discharged, and any
successor Paying Agent/Registrar shall be a bank, trust company, financial institution or other
entity qualified and authorized to serve in such capacity and perform the duties and services of
Paying Agent/Registrar. Upon any change in the Paying Agent/Registrar for the Certificates,
the City agrees to promptly cause a written notice thereof to be sent to each Holder by United
States Mail, first class postage prepaid, which notice shall also give the address of the new
Paying Agent/Registrar.
Principal of and premium, if any,' on the Certificates shall be payable at the Stated
Maturities or the redemption thereof only upon presentation and surrender of the Certificates to
the Paying Agent/Registrar at its designated offices in Houston, Texas (the "Designated
Payment/Transfer Office"). Interest on the Certificates shall be paid to the Holders whose name
appears in the Security Register at the close of business on the Record Date (the 15th day of the
month next preceding each interest payment date) and shall be paid by the Paying
Agent/Registrar (i) by check sent United States Mail, first class postage prepaid, to the address
of the Holder recorded in the Security Register or (ii) by such other method, acceptable to the
Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder. If the date for
the payment of the principal of or interest on the Certificates shall be a Saturday, Sunday, a
legal holiday, or a day when banking institutions in the City where the Designated
Payment/Transfer Office of the Paying Agent/Registrar is located are authorized by law or
executive order to close, then the date for such payment shall be the next succeeding day which
is not such a Saturday, Sunday, legal holiday, or day when banking institutions are authorized to
close; and payment on such date shall have the same force and effect as if made on the original
date payment was due.
In the event of a nonpayment of interest on a scheduled payment date, and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date") will be
established by the Paying Agent/Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be 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 next preceding the date of mailing of such
notice.
45039432.1
SECTION 4: Redemption. (a) Optional Redemption. The Certificates having Stated
Maturities on and after March 1, 2011 shall be subject to redemption prior to maturity, at the
option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple
thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar), on March 1, 2010,
or on any date thereafter at the redemption price of par plus accrued interest to the date of
redemption.
(b) Exercise of Redemption Option. At least forty-five (45) days prior to a redemption
date for the Certificates (unless a shorter notification period shall be satisfactory to the Paying
Agent/Registrar), the City shall notify the Paying Agent/Registrar of the decision to redeem
Certificates, the principal amount of each Stated Maturity to be redeemed, and the date of
redemption therefor. The decision of the City to exercise the right to redeem Certificates shall
be entered in the minutes of the governing body of the City.
(c )Selection of Certificates for Redemption. If less than all Outstanding Certificates of
the same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/
Registrar shall treat such Certificates as representing the number of Certificates Outstanding
which is obtained by dividing the principal amount of such Certificates by $5,000 and shall
select the Certificates tobe redeemed within such Stated Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date for
the Certificates, a notice of redemption shall be sent by United States Mail, first class postage
prepaid, in the name of the City and at the City's expense, to each Holder of a Certificate to be
redeemed in whole or in part at the address of the Holder appearing on the Security Register at
the close of business on the business day next preceding the date of mailing such notice, and
any notice of redemption so mailed shall be conclusively presumed to have been duly given
irrespective of whether received by the Holder.
All notices of redemption shall (i) specify the date of redemption for the Certificates, (ii)
identify the Certificates to be redeemed and, in the case of a portion of the principal amount to
be redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price,
(iv) state that the Certificates, 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, provided moneys sufficient for the payment of such Certificate (or the
principal amount thereof to be redeemed) at the then applicable redemption price are held for
the purpose of such payment by the Paying Agent/Registrar and (v) specify that payment of the
redemption price for the Certificates, or the principal amount thereof to be redeemed, shall be
made at the Designated Payment/Transfer Office of the Paying Agent/Registrar only upon
presentation and surrender of the Certificates. If a Certificate is subject by its terms to prior
redemption and has been called for redemption and notice of redemption has been duly given
as hereinabove provided, such Certificate (or the principal amount thereof to be redeemed) shall
become due and payable and interest thereon shall cease to accrue from and after the
redemption date therefor.
45039432.1 4
SECTION 5: Registration - Transf~r.~,.:._Excha.nge of Certificates-Predecessor
Certificates. The Paying Agent/Registrar shall obtain, record, and maintain in the Security
Register the name and address of each and every owner of the Certificates issued under and
pursuant to the provisions of this Ordinance, or if appropriate, the nominee thereof. Any
Certificate may be transferred or exchanged for Certificates of other authorized denominations
by the Holder, in person or by his duly authorized agent, upon surrender of such Certificate to
the Paying Agent/Registrar for cancellation, accompanied by a written instrument of transfer or
request for exchange duly executed by the Holder or by his duly authorized agent, in form
satisfactory to the Paying Agent/Registrar.
Upon surrender of any Certificate (other than the Initial Certificate(s) authorized in
Section 8 hereof) for transfer at the Designated Payment/Transfer Office of the Paying
Agent/Registrar, the Paying Agent/Registrar shall register and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized denominations
and having the same Stated Maturity and of a like aggregate principal amount as the Certificate
or Certificates surrendered for transfer.
At the option of the Holder, Certificates (other than the Initial Certificate(s) authorized in
Section 8 hereof) may be exchanged for other Certificates of authorized denominations and
having the same Stated Maturity, bearing the same rate of interest and of like aggregate
principal amount as the Certificates surrendered for exchange, upon surrender of the
Certificates to be exchanged at the Designated Payment/Transfer Office of the Paying Agent/
Registrar. Whenever any Certificates are surrendered for exchange, the Paying
Agent/Registrar shall register and deliver new Certificates to the Holder requesting the
exchange.
All Certificates issued in any transfer or exchange of Certificates shall be delivered to the
Holders at the Designated Payment/Transfer Office of the Paying Agent/Registrar or sent by
United States Mail, first class, postage prepaid to the Holders, and, upon the registration and
delivery thereof, the same shall be the valid obligations of the City, evidencing the same
obligation to pay, and entitled to the same benefits under this Ordinance, as the Certificates
surrendered in such transfer or exchange.
All transfers or exchanges of Certificates pursuant to this Section shall be made without
expense or service charge to the Holder, except as otherwise herein provided, and except that
the Paying Agent/Registrar shall require payment by the Holder requesting such transfer or
exchange of any tax or other governmental charges required to be paid with respect to such
transfer or exchange.
Certificates cancelled by reason of an exchange or transfer pursuant to the provisions
hereof are hereby defined to be "Predecessor Certificates," evidencing all or a portion, as the
case may be, of the same obligation to pay eVidenced by the new Certificate or Certificates
registered and delivered in the exchange or transfer therefor. Additionally, the term
"Predecessor Certificates" shall include any mutilated, lost, destroyed, or stolen Certificate for
which a replacement Certificate has been issued, registered and delivered in lieu thereof
pursuant to the provisions of Section 20 hereof and such new replacement Certificate shall be
deemed to evidence the same obligation as the mutilated, lost, destroyed, or stolen Certificate.
45039432.1 5
Neither the City nor the Paying Agent/Registrar shall be required to issue or transfer to
an assignee of a Holder any Certificate called for redemption, in whole or in part, within 45 days
of the date fixed for the redemption of such Certificate; provided, however, such limitation on
transferability shall not be applicable to an exchange by the Holder of the unredeemed balance
of a Certificate called for redemption in part.
SECTION 6: Book-Entry Only Transfers and Transactions. Notwithstanding the
provisions contained in Sections 3, 4 and 5 hereof relating to the payment, and
transfer/exchange of the Certificates, the City hereby approves and authorizes the use of
"Book-Entry Only" securities clearance, settlement and transfer system provided by The
Depository Trust Company (DTC), a limited purpose trust company organized under the laws of
the State of New York, in accordance with the operational arrangements referenced in the
Blanket Issuer Letter of Representations by and between the City and DTC (the "Depository
Agreement").
Pursuant to the Depository Agreement and the rules of DTC, the Certificates shall be
deposited with DTC who shall hold said Certificates for its participants (the "DTC Participants").
While the Certificates are held by DTC under the Depository Agreement, the Holder of the
Certificates on the Security Register for all purposes, including payment and notices, shall be
Cede & Co., as nominee of DTC, notwithstanding the ownership of each actual purchaser or
owner of each Certificate (the "Beneficial Owners") being recorded in the records of DTC and
DTC Participants.
In the event DTC determines to discontinue serving as securities depository for the
Certificates or otherwise ceases to provide book-entry clearance and settlement of securities
transactions in general or the City determines that DTC is incapable of properly discharging its
duties as securities depository for the Certificates, the City covenants and agrees with
the Holders of the Certificates to cause Certificates to be printed in definitive form
and issued and delivered to DTC Participants and Beneficial Owners, as the case may be.
Thereafter, the Certificates in definitive form shall be assigned, transferred and
exchanged on the Security Register maintained by the Paying Agent/Registrar and payment
of such Certificates shall be made in accordance with the provisions of Sections 3, 4 and 5
hereof.
SECTION 7: Execution - Registration. The Certificates shall be executed on behalf of
the City by the Mayor under its seal reproduced or impressed thereon and countersigned by the
City Secretary. The signature of said officers on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals who are or were the proper
officers of the City on the Certificate Date shall be deemed to be duly executed on behalf of the
City, notwithstanding that one or more of the individuals executing the same shall cease to be
such officer at the time of delivery of the Certificates to the initial purchaser(s) and with respect
to Certificates delivered in subsequent exchanges and transfers, all as authorized and provided
in V.T.C.A., Government Code, Chapter 1201.
45039432.1 6
No Certificate shall be entitled to any right or benefit under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Certificate either a certificate of
registration substantially in the form provided in Section 9C, manually executed by the
Comptroller of Public Accounts of the State of Texas, or his duly authorized agent, or a
certificate of registration substantially in the form provided in Section 9D, manually executed by
an authorized officer, employee or representative of the Paying Agent/Registrar, and either such
certificate duly signed upon any Certificate shall be conclusive evidence, and the only evidence,
that such Certificate has been duly certified, registered and delivered.
SECTION 8: Initial Certificate(s). The Certificates herein authorized shall be initially
issued either (i)as a single fully registered certificate in the total principal amount of
$10,000,000 with principal installments to become due and payable as provided in Section 2
hereof and numbered T-l, or (ii) as multiple fully registered certificates, being one certificate for
each year of maturity in the applicable principal amount and denomination and to be numbered
consecutively from T-1 and upward (hereinafter called the "Initial Certificate(s)") and, in either
case, the Initial Certificate(s) shall be registered in the name of the initial purchaser(s) or the
designee thereof. The Initial Certificate(s) shall be the Certificates submitted to the Office of the
Attorney General of the State of Texas for approval, certified and registered by the Office of the
Comptroller of Public Accounts of the State of Texas and delivered to the initial purchaser(s).
Any time after the delivery of the Initial Certificate(s), the Paying Agent/Registrar, pursuant to
written instructions from the initial purchaser(s), or the designee thereof, shall cancel the Initial
Certificate(s) delivered hereunder and exchange therefor definitive Certificates of authorized
denominations, Stated Maturities, principal amounts and bearing applicable interest rates for
transfer and delivery to the Holders named at the addresses identified therefor; all pursuant to
and in accordance with such written instructions from the initial purchaser(s), or the designee
thereof, and such other information and documentation as the Paying Agent/Registrar may
reasonably require.
SECTION9: Forms. A. Forms Generally. The Certificates, the Registration
Certificate of the Comptroller of Public Accounts of the State of Texas, the Registration
Certificate of Paying Agent/Registrar, and the form of Assignment to be printed on each of the
Certificates, 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
identifying numbers and letters of the Committee on Uniform Securities Identification
Procedures of the American Bankers Association) and such legends and endorsements
(including insurance legends in the event the Certificates, or any maturities thereof, are
purchased with insurance and any reproduction of an opinion of counsel) thereon as may,
consistently herewith, be established by the City or determined by the officers executing such
Certificates as evidenced by their execution. Any portion of the text of any Certificates may be
set forth on the reverse thereof, with an appropriate reference thereto on the face of the
certificate.
45039432.1 7
The definitive Certificates and the Initial Certificate(s) shall be printed, lithographed, or
engraved, typewritten, photocopied or otherwise reproduced in any other similar manner, all as
determined by the officers executing such Certificates as evidenced by their execution.
B. Form of Certificates.
REGISTERED REGISTERED
NO. $
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF PLAINVIEW, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM
SURPLUS REVENUE
CERTIFICATE OF OBLIGATION,
SERIES 2001
Certificate Date:
May 15, 2001
Interest Rate:
Stated Maturity:
CUSIP NO:
Registered Owner:
Princi pal Amount:
DOLLARS
The City of Plainview (hereinafter referred to as the "City"), a body corporate and
municipal corporation in the County of Hale, State of Texas, for value received, acknowledges
itself indebted to and hereby promises to pay to the order of the Registered Owner named
above, or the registered assigns thereof, on the Stated Maturity date specified above the
Principal Amount hereinabove stated (or so much thereof as shall not have been paid upon prior
redemption) and to pay interest on the unpaid principal amount hereof from the Certificate 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 in each year,
commencing September 1, 2001. Principal of this Certificate is payable at its Stated Maturity or
redemption to the registered owner hereof, upon presentation and surrender, at the Designated
Payment/Transfer Office of the Paying Agent/Registrar executing the registration certificate
appearing hereon, or its successor; provided, however, while this Certificate.is registered to
Cede & Co., the payment of principal upon a partial redemption of the principal amount hereof
may be accomplished without presentation and surrender of this Certificate. Interest is payable
to the registered owner of this Certificate (or one or more Predecessor Certificates, 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 15th day of the month next preceding each interest payment date, and interest shall be
paid by the Paying Agent/Registrar by check sent United States Mail, first class postage
prepaid, to the address of the registered owner recorded in the Security Register or by such
other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and
expense of, the registered owner. All payments of principal of, premium, if any, and interest on
this Certificate shall be without exchange or collection charges to the owner hereof and in any
coin or currency of the United States of America which at the time of payment is legal tender for
the payment of public and private debts.
45039432.1 8
This Certificate is one of the series specified in its title issued in the aggregate principal
amount of $10,000,000 (herein referred to as the "Certificates") for the purpose of paying
contractual obligations to be incurred for (i) improvements and extensions to the City's Sewer
System, and (ii) professional services rendered in relation to such projects and the financing
thereof, under and in strict conformity with the Constitution and laws of the State of Texas,
particularly V.T.C.A., Local Government Code, Subchapter C of Chapter 271, as amended, and
pursuant to an Ordinance adopted by the City Council of the City (herein referred to as the
"Ordinance").
The Certificates maturing on and after March 1, 2011, may be redeemed prior to their
Stated Maturities, at the option of the City, in whole or in part in principal amounts of $5,000 or
any integral multiple thereof (and if within a Stated Maturity by lot by the Paying
Agent/Registrar), on March 1, 2010, or on any date thereafter, at the redemption price of par,
together with accrued interest to the date of redemption.
At least thirty days prior to a redemption date, the City shall cause a written notice of
such redemption to be sent by United States Mail, first class postage prepaid, to the registered
owners of each Certificate to be redeemed at the address shown on the Security Register and
subject to the terms and provisions relating thereto contained in the Ordinance. If a Certificate
(or any portion of its principal sum) shall have been duly called for redemption and notice of
such redemption duly given, then upon the redemption date such Certificate (or the portion of its
principal sum to be redeemed) shall become due and payable, and, if moneys for the payment
of the redemption price and the interest accrued on the principal amount to be redeemed to the
date of redemption are held for the purpose of such payment by the Paying Agent/Registrar,
interest shall cease to accrue and be payable from and after the redemption date on the
principal amount redeemed.
in the event a portion of the principal amount of a Certificate is to be redeemed and the
registered owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender of
such Certificate to the Designated Payment/Transfer Office of the Paying Agent/Registrar, and a
new Certificate or Certificates of like maturity and interest rate in any authorized denominations
provided by the Ordinance for the then unredeemed balance of the principal sum thereof will be
issued to the registered owner, without charge. If a Certificate is selected for redemption, in
whole or in part, the City and the Paying Agent/Registrar shall not be required to transfer such
Certificate to an assignee of the registered owner within 45 days of the redemption date
therefor; provided, however, such limitation on transferability shall not be applicable to an
exchange by the registered owner of the unredeemed balance of a Certificate redeemed in part.
45039432.1 9
The Certificates are payable from the proceeds of an ad valorem tax levied, within the
limitations prescribed by law, upon all taxable property in the City, and are additionally payable
from and secured by a lien on and pledge of the Net Revenues (as defined in the Ordinance) of
the City's combined Waterworks and Sewer System (the "System"), such lien and pledge,
however, being junior and subordinate to the lien on and pledge of such Net Revenues securing
the payment of the "Prior Lien Obligations" (identified and defined in the Ordinance) now
outstanding and hereafter issued by the City. In the Ordinance, the City reserves and retains
the right to issue Prior Lien Obligations without limitation as to principal amount but subject to
any applicable terms, conditions or restrictions under law or otherwise.
Reference is hereby made to the Ordinance, a copy of which is on file in the Designated
Payment/Transfer Office of the Paying Agent/Registrar, and to all the provisions of which the
owner or holder of this Certificate by the acceptance hereof hereby assents, for definitions of
terms; the description of and the nature and extent of the tax levied for the payment of the
Certificates; the nature and extent of the pledge of the Net Revenues securing the payment of
the Certificates; the terms and conditions relating to the transfer or exchange of this Certificate;
the conditions upon which the Ordinance may be amended or supplemented with or without the
consent of the Holders; the rights, duties, and obligations of the City and the Paying
Agent/Registrar; the terms and provisions upon which the tax levy and the pledge of the Net
Revenues and covenants made in the Ordinance may be discharged at or prior to the matudty
of this Certificate, and this Certificate deemed to be no longer Outstanding thereunder; and for
the other terms and provisions contained therein. Capitalized terms used herein have the
meanings assigned in the Ordinance.
This Certificate, subject to certain limitations contained in the Ordinance, may be
transferred on the Security Register only upon its presentation and surrender at the Designated
Payment/Transfer Office of the Paying Agent/Registrar, with the Assignment hereon duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the
Paying Agent/Registrar duly executed by, the registered owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or more new fully registered
Certificates.of the. same Stated Maturity, of authorized denominations, bearing the same rate of
interest, and of the same aggregate principal amount will be issued by the Paying
Agent/Registrar to the designated transferee or transferees.
45039432.1 10
The City and the Paying Agent/Registrar, and any agent of either, shall treat the
registered owner whose name appears on the Security Register (i) on the Record Date as the
owner entitled to payment of interest hereon, (ii) on the date of surrender of this Certificate as
the owner entitled to payment of principal hereof at its Stated Maturity or its redemption, in
whole or in part, and (iii) on any other date as the owner for all other purposes, and neither the
City nor the Paying Agent/Registrar, or any agent of either, shall be affected by notice to the
contrary. In the event of nonpayment of interest on a scheduled payment date and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date") will be
established by the Paying Agent/Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be 15 days after the Special Record Date)
shall be sent at least five (5) business days prior to the Special Record Date by United States
Mail, first class postage prepaid, to the address of each Holder appearing on the Security
Register at the close of business on the last business day next preceding the date of mailing of
such notice.
It is hereby certified, recited, represented and declared that the City is a body corporate
and political subdivision duly organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the issuance of the Certificates is duly
authorized by law; that all acts, conditions and things required to exist and be done precedent to
and in the issuance of the Certificates to render the same lawful and valid obligations of the City
have been properly done, have happened and have been performed in regular and due time,
form and manner as required by the Constitution and laws of the State of Texas, and the
Ordinance; that the Certificates do not exceed any Constitutional or statutory limitation; and that
due provision has been made for the payment of the principal of and interest on the Certificates
as aforestated. In case any provision in this Certificate shall be invalid, illegal, or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The terms and provisions of this Certificate and the Ordinance
shall be construed in accordance with and shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the City Council of the City has caused this Certificate to be
duly executed under the official seal of the City as of the Certificate Date.
CITY OF PLAINVIEW, TEXAS
COUNTERSIGNED:
Mayor
City Secretary
(SEAL)
45039432.1 I 1
*Form of Registration Certificate of Comptroller
of Public Accounts to appear on Initial Certificate(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OFTHE COMPTROLLER )
)
OF PUBLIC ACCOUNTS )
)
THE STATE OF TEXAS )
REGISTER NO.
I HEREBY CERTIFY that this Certificate 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:
Comptroller of Public Accounts
of the State of Texas
Do not print on definitiVe Certificates
Form of Certificate of Paying Agent/Registrar to
appear on Definitive Certificates only.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Certificate has been duly issued and registered under the provisions of the
within-mentioned Ordinance; the certificate or certificates of the above entitled and designated
series originally delivered having been approved by the Attorney General of the State of Texas
and registered by the Comptroller of Public Accounts, as shown by the records of the Paying
Agent/Registrar.
The designated offices of the Paying Agent/Registrar located in Houston, Texas, is the
"Designated Payment/Transfer Office" for this Certificate.
THE BANK OF NEW YORK,
New York, New :York,
as Paying Agent/Registrar
Registration Date:
By
Authorized Signature
45039432.1
12
E. Form of Assignment
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto
(Print or typewrite name, address, and zip code of transferee:)
(Social Security or other identifying number ) the within
Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Certificate on the books kept for registration thereof, with full
power of substitution in the premises.
DATED:
Signature guaranteed:
NOTICE: The signature on this
assignment must correspond with the
name of the registered owner as it
appears on the face of the within
Certificate in every particular.
F. The Initial Certificate(s) shall be in the form set forth in paragraph B
Section, except that the form of a single fully registered Initial Certificate shall be
as follows:
of this
modified
(i) immediately under the name of the certificate the headings "Interest Rate
and "Stated Maturity "shall both be omitted;
(ii) paragraph one shall read as follows:
Registered Owner:
Principal Amount:
DOLLARS
The City of Plainview (hereinafter referred to as the "City"), a body corporate and
municipal corporation in the County of Hale, State of Texas, for value received, acknowledges
itself indebted to and hereby promises to pay to the order of the Registered Owner named
above, or the registered assigns thereof, the Principal Amount hereinabove stated on March 1 in
each of the years and in principal installments in accordance with the following schedule:
PRINCIPAL INTEREST
YEAR INSTALLMENTS RATE
(Information to be inserted from schedule in Section 2 hereof).
(or so much thereof as shall not have been prepaid prior to maturity) and to pay interest on the
unpaid principal amounts hereof from the Certificate Date at the per annum rate(s) 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 I of each year, commencing September 1,
45039432.1 1 3
2001. Principal installments of this Certificate are payable at its Stated Maturity or on a
prepayment date to the registered owner hereof by The Bank of New York, New York (the
"Paying Agent/Registrar"), upon presentation and surrender, at its designated offices in
Houston, Texas (the "Designated Payment/Transfer Office"). Interest is payable to the
registered owner of this Certificate 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 15th
day of the month next preceding each interest payment date hereof and interest shall be paid by
the Paying Agent/Registrar by check sent United States Mail, first class postage prepaid, to the
address of the registered owner recorded in the Security Register or by such other method,
acceptable to the Paying Agent/Registrar, requested by, and at the risk and expense of, the
registered owner. All payments of principal of, premium, if any, and interest on this Certificate
shall be without exchange or collection charges to the owner hereof and in any coin or currency
of the United States of America which at the time of payment is legal tender for the payment of
public and private debts.
SECTION 10: Definitions. For purposes of this Ordinance and for clarity with respect to
the issuance of the Certificates herein authorized, and the levy of taxes and appropriation of Net
Revenues therefor, the following words or terms, whenever the same appears herein without
qualifying language, are defined to mean as follows:
(a) The term "Additional Obligations" shall mean tax and revenue
obligations hereafter issued which by their terms are payable from ad valorem
taxes and additionally payable from and secured by a parity lien on and pledge of
the Net Revenues of the System of equal rank and dignity with the lien and
pledge securing the payment of the Certificates.
(b) The term "Certificates" shall mean the $10,000,000 "City of Plainview,
Texas, Tax and Waterworks and Sewer System Surplus Revenue Certificates of
Obligation, Series 2001 "authorized by this Ordinance.
(c) The term "Certificate Fund" shall mean the special Fund created and
established under the provisions of Section 11 of this Ordinance.
(d) The term "Collection Date" shall mean, when reference is being made
to the levy and collection of annual ad valorem taxes, the date the annual ad
valorem taxes levied each year by the City become delinquent.
(e) The term "Fiscal Year" shall mean the annual financial accounting
period used with respect to the operations of the System now ending on
September 30th of each year; prOvided, however, the City Council may change,
by ordinance duly passed, such annual financial accounting period to end on
another date if such change is found and determined to be necessary for
budgetary or other fiscal purposes.
(f) The term "Government Securities" shall mean (i) direct noncallable
obligations of the United States of America, including obligations the principal of
and interest on which are unconditionally guaranteed by the United States of
America, (ii) noncallable obligations.of an agency or instrumentality of the United
States, including obligations unconditionally guaranteed or insured by the agency
or instrumentality and on the date of their acquisition or purchase by the City are
rated as to investment quality by a nationally recognized investment rating firm
45039432.1
14
not less than AAA or its equivalent and (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 on the date of their acquisition or purchase by the City,
are rated as to investment quality by a nationally recognized investment rating
firm not less than AAA or its equivalent.
(g) The term "Gross Revenues" shall mean all revenues, income and
receipts of any nature derived or received by the City from the operation and
ownership (excluding gifts and grant moneys, federal or state) of the System,
including the income from the investment or deposit of money in any special
funds or accounts created for the payment and security of the Prior Lien
Obligations or any other obligations payable in whole or in part from and secured
by lien on and pledge of the Net Revenues.
(h) The term "Net Revenues" shall mean all Gross Revenues less the
expense of operation and maintenance, including all salaries, labor, materials,
repairs and extensions necessary to render efficient service, provided, however,
that only such repairs and extensions as in the judgment of the City Council,
reasonably and fairly exercised, are necessary to keep the System in operation
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 the security of any obligations payable therefrom and secured
by a lien on and pledge of the Net Revenues thereof, shall be deducted in
determining "Net Revenues".
(i) The term "Outstanding" when used in this Ordinance with respect to
Certificates means, as of the date of determination, all Certificates theretofore
issued and delivered under this Ordinance, except:
(1) those Certificates cancelled by the Paying
Agent/Registrar or delivered to the Paying Agent/Registrar for
cancellation;
(2) those Certificates for which payment has been duly
provided by the City in accordance with the provisions of
Section 21 hereof; and
(3) those Certificates that have been mutilated,
destroyed, lost, or stolen and replacement Certificates have been
registered and delivered in lieu thereof as provided in Section 20
hereof.
(j) The term "Prior Lien Obligations" shall mean (A) all revenue bonds or
other obligations hereafter issued, payable solely from and secured only by a lien
on and pledge of the Net Revenues of the System, and (B) obligations now
outstanding and hereafter issued which by the terms of this Ordinance and the
ordinances authorizing their issuance have a prior right and claim on the Net
Revenues of the System to the claim and right securing the payment of the
Certificates, including, but not limited to, the outstanding "City of Plainview,
Texas, Tax and Waterworks and Sewer System (Limited Pledge) Revenue
45039432.1 1 5
Certificates of Obligation, Series 1992, dated August 1, 1992, issued in the
original principal amount of $5,000,000.
(k) The term "System" shall mean and include the City's combined
waterworks and sewer system, including all present and future extensions,
improvements, enlargements, replacements and additions thereto.
SECTION 11: Certificate Fund. For the purpose of paying the interest on and to provide
a sinking fund for the payment, redemption and retirement of the Certificates, there shall be and
is hereby created a special account or fund on the books and records of the City known as the
"SPECIAL SERIES 2001 TAX AND REVENUE CERTIFICATE OF OBLIGATION FUND", and
all moneys deposited to the credit of such Fund shall be shall be kept and maintained in a
special banking account at the City's depository bank. Authorized officials of the City are
hereby authorized and directed to make withdrawals from said Fund sufficient to pay the
principal of and interest on the Certificates as the same become due and payable, and, shall
cause to be transferred to the Paying Agent/Registrar from moneys on deposit in the Certificate
Fund an amount sufficient to pay the amount of principal and/or interest falling due on the
Certificates, such transfer of funds to the Paying Agent/Registrar to be made in such manner as
will cause immediately available funds to be deposited with the Paying Agent/Registrar on or
before the last business day next preceding each interest and principal payment date for the
Certificates.
Pending the transfer of funds to the Paying Agent/Registrar, money in the Certificate
Fund may, at the option of the City, be invested in obligations identified in, and in accordance
with the provisions of the "Public Funds Investment Act" (V.T.C.A., Government Code, Chapter
2256) relating to the investment of "bond proceeds"; provided that all such investments shall be
made in such a manner that the money required to be expended from said Fund will be
available at the proper time or times. All interest and income derived from deposits and
investments in said Certificate Fund shall be credited to, and any losses debited to, the said
Certificate Fund. All such investments shall be sold promptly when necessary to prevent any
default in connection with the Certificates.
SECTION 12: Tax Levy. To provide for the payment of the "Debt Service
Requirements" on the Certificates being (i) the interest on said Certificates and (ii) a sinking
fund for their redemption at maturity or a sinking fund of 2% (whichever amount shall be the
greater), there shall be and there is hereby levied a sufficient tax on each one hundred dollars'
valuation of taxable property in said City, adequate to pay such Debt Service Requirements
while the Certificates remain Outstanding, full allowance being made for delinquencies and
costs of collection; and said tax shall be assessed and collected each year and applied to the
payment of the Debt Service Requirements, and the same shall not be diverted to any other
purpose. The taxes so levied and collected shall be paid into the Certificate Fund. The City
Council hereby declares its purpose and intent to provide and levy a tax legally and fully
sufficient to pay the said Debt Service Requirements, it having been determined that the
existing and available taxing authority of the City for such purpose is adequate to permit a
legally sufficient tax in consideration of all other outstanding in~lebtedness.
The amount of taxes to be provided annually for the payment of the principal of and
interest on the Certificates shall be determined and accomplished in the following manner:
45039432.1 16
Prior to the date the City Council establishes the annual tax rate and
passes an ordinance levying ad valorem taxes each year, the Council shall
determine:
(1) The amount on deposit in the Certificate Fund after
(a) deducting therefrom the total amount of Debt Service
Requirements to become due on Certificates prior to the
Collection Date for the ad valorem taxes to be levied and
(b) adding thereto the amount of the Net Revenues of the System
appropriated and allocated to pay such Debt Service
Requirements prior to the Collection Date for the ad valorem taxes
to be levied.
(2) The amount of Net Revenues of the System,
appropriated and to be set aside for the payment of the Debt
Service Requirements on the Certificates between the Collection
Date for the taxes then to be levied and the Collection Date for the
taxes to be levied during the next succeeding calendar year.
(3) The amount of Debt Service Requirements to
become due and payable on the Certificates between the
Collection Date for the taxes then to be levied and the Collection
Date for the taxes to be levied during the next succeeding
calendar year.
The amount of taxes to be levied annually each year to pay the Debt
Service Requirements on the Certificates shall be the amount established in
paragraph (3) above less the sum total of the amounts established in
paragraphs (1) and (2), after taking into consideration delinquencies and costs of
collecting such annual taxes.
SECTION 13: Pledge of Net Revenues. The City hereby covenants and agrees that,
subject to the prior lien on and pledge of the Net Revenues of the System to the payment and
security of Prior Lien Obligations, all the Net Revenues of the System, with the exception of
those in excess of the amounts required to be deposited to the Certificate Fund as hereafter
provided, are hereby irrevocably pledged, equally and ratably, to the payment of the principal of
and interest on the Certificates and Additional Obligations, if issued, and the pledge of Net
Revenues of the System herein made for the payment of the Certificates shall constitute a lien
on the Net Revenues of the System in accordance with the terms and provisions hereof and be
valid and binding without further action by the City and without any filing or recording except for
the filing of this Ordinance in the records of the City.
SECTION 14: System Fund. The City covenants and agrees that all Gross Revenues
(excluding earnings from the investment of money held in any special funds or accounts created
for the payment and security of the Prior Lien Obligations) shall be deposited as collected into a
fund maintained at an official depository of the City and known on the books of the City as the
"System Fund" (hereinafter called the "System Fund"). All moneys deposited to the credit of the
System Fund shall be allocated, dedicated and disbursed to the extent required for the following
purposes and in the order of priority shown, to wit:
45039432.1 1 7
First: To the payment of all necessary and reasonable maintenance and
operating expenses of the System as defined herein or required by statute to be
a first charge on and claim against the revenues thereof.
Second: To the payment of all amounts required to be deposited in the special
Funds created and established for the payment, security and benefit of Prior Lien
Obligations in accordance with the terms and provisions of the ordinances
authorizing the issuance of Prior Lien Obligations.
Third: To the payment of the amounts pledged to the payment of the
Certificates.
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 15: Deposits to Certificate Fund. The City hereby covenants and agrees to
cause to be deposited to the credit of the Certificate Fund prior to each principal and interest
payment date for the Certificates from the pledged Net Revenues of the System in the System
Fund, after the deduction of all payments required to be made to the special Funds or accounts
created for the payment and security of the Prior Lien Obligations, an amount equal to one
hundred per centum (100%) of the amount required to fully pay the interest and principal
payments then due and payable on the Certificates, such deposits to pay accrued interest and
maturing principal on the Certificates to be made in substantially equal monthly installments on
or before the last business day of each month beginning on or before the last business day of
the month following the date of delivery of the Certificates to the purchasers.
The monthly deposits to the Certificate Fund, as hereinabove provided, shall be made
until such time as such Fund contains an amount equal to pay the principal of and interest on
the Certificates to maturity. Accrued interest received from the purchasers of the Certificates
deposited to the Certificate Fund and ad valorem taxes levied, collected and deposited in the
Certificate Fund for and on behalf of the Certificates may be taken into consideration and
reduce the amount of the monthly deposits otherwise required to be deposited in the Certificate
Fund from the Net Revenues of the System. In addition, any proceeds of sale of the Certificates
in excess of the amount required to pay the contractual obligations to be incurred (including
change orders to a construction contract) shall be deposited in the Certificate Fund, which
amount shall reduce the sums otherwise required to be deposited in said Fund from ad valorem
taxes and the Net Revenues of the System.
SECTION 16: Security of Funds. All moneys on deposit in the Funds for which this
Ordinance makes provision (except any portion thereof as may be at any time properly
invested) shall be secured in the manner and to the fullest extent required by the laws of Texas
for the security of public funds, and moneys on deposit in such Funds shall be used only for the
purposes permitted by this Ordinance.
SECTION 17: Special Covenants. The City hereby further covenants as follows:
(a) It has the lawful power to pledge the Net Revenues of the System to
the payment of the Certificates in the manner herein contemplated and has
lawfully exercised such power under the Constitution and laws of the State of
Texas, including said power existing under V.T.C.A, Government Code,
45039432.1
18
Sections 1502.056 and 1502.058 and V.T.C.A.,' Local Government Code,
Sections 271.041, et seq.
(b) Other than for the payment of the Prior Lien Obligations and the
Certificates, 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.
SECTION 18: Issuance of Prior Lien Obligations/Additional Obligations. The City
hereby expressly reserves the right to hereafter issue Prior Lien Obligations, without limitation
as to principal amount but subject to any terms, conditions or restrictions applicable thereto
under law or otherwise, payable, in whole or in part, from the Net Revenues (without impairment
of the obligation of contract with the Holders of the Certificates) upon such terms and conditions
as the City Council may determine. Additionally, the City reserves the right to issue obligations
payable, in whole or in part, from the Net Revenues of the System and, to the extent provided,
secured by a lien on and pledge of the Net Revenues of equal rank and dignity with the lien and
pledge securing the payment of the Certificates.
SECTION 19: Application of Prior Lien Obligations Covenants and Agreements. It is the
intention of this governing body and accordingly hereby recognized and stipulated that the
provisions, agreements and covenants contained herein bearing upon the management and
operations of the System, and the administering and application of revenues derived from the
operation thereof, shall to the extent possible be harmonized with like provisions, agreements
and covenants contained in the ordinances authorizing the issuance of the Prior Lien
Obligations, and to the extent of any irreconcilable conflict between the provisions contained
herein and in the ordinances authorizing the issuance of the Prior Lien Obligations, the
provisions, .agreements and covenants contained therein shall prevail to the extent of such
conflict and be applicable to this Ordinance but in all respects subject to the priority of rights and
benefits, if any, conferred thereby to the holders of the Prior Lien Obligations.
SECTION 20: Mutilated - Destroyed - Lost and Stolen Certificates. In case any
Certificate shall be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may
execute and deliver a replacement Certificate of like form and tenor, and in the same
denomination and bearing a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Certificate, or in lieu of and in substitution for such destroyed, lost
or stolen Certificate, only upon the approval of the City and after (i) the filing by the Holder
thereof with the Paying Agent/Registrar of evidence satisfactory to the Paying Agent/Registrar
of the destruction, loss or theft of such Certificate, and of the authenticity of the ownership
thereof and (ii) the furnishing to the Paying Agent/Registrar of indemnification in an amount
satisfactory to hold the City and the Paying Agent/Registrar harmless. All expenses and
charges associated with such indemnity and with the preparation, execution and delivery of a
replacement Certificate shall be borne by the Holder of the Certificate mutilated, or destroyed,
lost or stolen.
Every replacement Certificate issued pursuant to. this Section shall be a valid and
binding obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably
with all other Outstanding Certificates; notwithstanding the enforceability of payment by anyone
of the destroyed, lost, or stolen Certificates. 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 Certificates.
45039432.1 19
SECTION 21: 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 Certificates, at the times and in the manner stipulated in this Ordinance, then the pledge of
taxes levied under this Ordinance and the Net Revenues of the System and all covenants,
agreements, and other obligations of the City to the Holders shall thereupon cease, terminate,
and be discharged and satisfied.
Certificates 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 Certificates or the principal amount(s) thereof at maturity or the redemption date
therefor, together with all interest due thereon, shall have been irrevocably deposited with and
held in trust by the Paying Agent/Registrar, or an authorized escrow aqent, or (ii) Government
Securities shall have been irrevocably deposited in trust with the Paying] Agent/Registrar, or an
authorized escrow agent, which Government Securities have been certified by an independent
accounting firm to mature as to principal and interest in such amounts and at such times as will
insure the availability, without reinvestment, of sufficient money, together with any moneys
deposited therewith, if any, to pay when due the principal of and interest on such Certificates, or
the principal amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of
redemption has been duly given or waived or if irrevocable arrangements therefor acceptable to
the Paying Agent/Registrar have been made) the redemption date thereof. The City covenants
that no deposit of moneys or Government Securities will be made under this Section and no use
made of any such deposit which would cause the Certificates to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, or
regulations adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/ Registrar, or an authorized escrow
agent, and all income from Government Securities held in trust by the Paying Agent/Registrar,
or an authorized escrow agent, pursuant to this Section which is not required for the payment of
the Certificates, or any principal amount(s) thereof, or interest thereon with respect to which
such moneys have been so deposited shall be remitted to the City or deposited as directed by
the City. Furthermore, any money held by the Paying Agent/Registrar for the payment of the
principal of and interest on the Certificates and remaining unclaimed for a period of three (3)
years after the Stated Maturity, or applicable redemption date, of the Certificates such moneys
were deposited and are held in trust to pay shall upon the request of the City be remitted to the
City against a written receipt therefor. Notwithstanding the above and foregoing, any remittance
of funds from the Paying Agent/Registrar to the City shall be subject to any applicable
unclaimed property laws of the State of Texas.
SECTION 22: Ordinance a Contract-Amendments. This Ordinance shall constitute a
contract with the Holders from time to time, be binding on the City, and shall not be amended or
repealed by the City so long as any Certificate 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 consent of Holders holding a majority in aggregate principal
amount of the Certificates 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
Certificates, no such amendment, addition, or rescission shall (1)extend the time or times of
payment of the principal of, premium, if any, and interest on the Certificates, reduce the principal
amount thereof, the redemption price, or the rate of interest thereon, or in any other way modify
the terms of payment of the principal of, premium, if any, or interest on the Certificates, (2) give
45039432.1 20
any preference to any Certificate over any other Certificate, or (3)reduce the aggregate
principal amount of Certificates required to be held by Holders for consent to any such
amendment, addition, or rescission.
SECTION 23: Covenants to Maintain Tax-Exempt Status. (a) Definitions. When used
in this Section, the following terms have the following meanings:
"Closing Date" means the date on which the Certificates are first authenticated and
delivered to the initial purchasers against payment therefor.
"Code" means the Intemal 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 Certificates.
"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 Certificates are invested and which is not acquired
to carry outthe governmental purposes of the Certificates.
"Rebate Amount" has the meaning set forth in Section 1.148-1 (b) of the Regulations.
"Regulations" means any proposed, temporary, or final Income Tax Regulations issued
pursuant to Sections 103 and 141 through 150 of the Code, and 103 of the Internal Revenue
Code of 1954, which are applicable to the Certificates. Any reference to any specific Regulation
shall also mean, as appropriate, any proposed, temporary or final Income Tax Regulation
designed to supplement, amend or replace the specific Regulation referenced.
"Yield" of (1) any Investment has the meaning set forth in Section 1.148-5 of the
Regulations and (2) the Certificates has the meaning set forth in Section 1.148-4 of the
Regulations.
(b) Not to Cause Interest to Become Taxable. The City shall not use, permit the use of,
or omit to use Gross Proceeds or any other amounts (or any property the acquisition,
construction or improvement of which is to be financed directly or indirectly with Gross
Proceeds) in a manner which if made or omitted, respectively, would cause the interest on any
Certificate 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 Certificate, the
City shall comply with each of the specific covenants in this Section.
(c) No Private Use or Private Payments. Except as permitted by section 141 of the
Code and the Regulations and rulings thereunder, the City shall at all times prior to the last
Stated Maturity of Certificates:
45039432.1 21
(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 Certificates, and not use or permit the use of such Gross
Proceeds (inCluding all contractual arrangements with terms
different than those applicable to the general public) or any
property acquired, constructed or improved with such Gross
Proceeds in any activity carried on by any person or entity
(including the United States or any agency, department and
instrumentality thereof) other than a state or local government,
unless such use is solely as a member of the general public; and
(2) not directly or indirectly impose or accept any
charge or other payment by any person or entity who is treated as
using Gross Proceeds of the Certificates or any property the
acquisition, construction or improvement of which is to be financed
or refinanced directly or indirectly with such Gross Proceeds, other
than taxes of general application within the City or interest earned
on investments acquired with such Gross Proceeds pending
application for their intended purposes.
(d) No Private Loan. Except to the extent permitted by section 141 of the Code and the
Regulations and rulings thereunder, the City shall not use Gross Proceeds of the Certificates 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 to the extent permitted by section 148 of the
Code and the Regulations and rulings thereunder, the City shall not at any time prior to the final
Stated MatUrity of the Certificates directly or indirectly invest Gross Proceeds in any Investment
(or use Gross Proceeds to replace money so invested), if as a result of such investment the
Yield from the Closing Date of all Investments acquired with Gross Proceeds (or with money
replaced thereby), whether then held or previously disposed of, exceeds the Yield of the
Certificates.
(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 Certificates 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.
45039432.1 22
(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 Certificate is discharged. However, to the extent
permitted by law, the City may commingle Gross Proceeds of the Certificates
with other money of the City, provided that the City separately accounts for each
receipt and expenditure of Gross Proceeds and the obligations acquired
therewith.
(2) Not less frequently than each Computation Date, the City shall
calculate the Rebate Amount in accordance with rules set forth in section 148(0
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 Certificates until six years after the final Computation Date.
(3) As additional consideration for the purchase of the Certificates 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 Interest and
Sinking 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
Certificates 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(0 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 Certificates, 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
45039432.1 23
resulted if the transaction had been at arm's length and had the Yield of the Certificates not
been relevant to either party.
(j) Elections. The City hereby directs and authorizes the Mayor, City Manager, or
Director of Finance/Treasurer, individually or jointly, to make elections permitted or required
pursuant to the provisions of the Code or the Regulations, as they deem necessary or
appropriate in connection with the Certificates, in the Certificate as to Tax Exemption or similar
or other appropriate certificate, form or document.
(k) Qualified Tax Exempt Obligations. In accordance with the provisions of paragraph
(3) of subsection (b) of Section 265 of the Code, the City hereby designates the Certificates to
be "qualified tax exempt obligations" in that the Certificates are not "private activity bonds" as
defined in the Code and the reasonably anticipated amount of "qualified tax exempt obligations"
to be issued by the City (including all subordinate entities of the City) for the calendar year 2001
will not exceed $10,000,000.
SECTION 24: Sale of Certificates. Pursuant to a public sale for the Certificates, the bid
submitted by Stephens, Inc. (herein referred to as the "Purchasers") is declared to be the best
bid received producing the lowest true interest cost rate to the City; such bid is hereby accepted
and incorporated herein by reference as a part of this Ordinance for all purposes, and the sale
of the Certificates to said Purchasers at the price of par and accrued interest to the date of
delivery, plus a premium of $-0-, is hereby approved and confirmed. Delivery of the Certificates
to the Purchasers shall occur as soon as possible upon payment being made therefor in
accordance with the terms of sale.
SECTION 25: Official Statement The use of the Preliminary Official Statement, dated
May 1, 2001, in the offering and sale of the Certificates is hereby ratified, confirmed and
approved in all respects, and the City Council hereby finds that the information and data
contained in said Preliminary Official Statement pertaining to the City and its financial affairs is
true and correct in all material respects and no material facts have been omitted therefrom
which are necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading. The final Official Statement, which reflects the terms of sale
(together with such changes approved by the Mayor, City Secretary, City Manager of Director of
Finance/Treasurer, one or more of said officials), shall be and is hereby in all respects approved
and the Purchasers are hereby authorized to use and distribute said final Official Statement,
dated May 22, 2001, in the reoffering, sale and delivery of the Certificates to the public..
SECTION 26: Proceeds of Sale. The proceeds of sale of the Certificates, excluding the
accrued interest and premium, if any, received from the Purchasers, shall be deposited in a
construction fund maintained at the City's depository bank. Pending expenditure for authorized
projects and purposes, such proceeds of sale may be invested in authorized investments in
accordance with the provisions of V.T.C.A., Government Code, Chapter 2256, including
guaranteed investment contracts permitted by V.T.C.A., Section 2256.015 et seq., and the
City's investment policies and guidelines, and any investment earnings realized may be
expended for such authorized projects and purposes or deposited in the Certificate Fund as
shall be determined by the City Council. Accrued interest and premium, if any, as well as all
surplus proceeds of sale of the Certificates, including investment earnings, remaining after
completion of all authorized projects or purposes shall be deposited to the credit of the
Certificate Fund.
45039432.1
24
SECTION 27: Control and Custody of Certificates. The Mayor of the City shall be and is
hereby authorized to take and have charge of all necessary orders and records pending the sale
of the Certificates, the investigation by the Attorney General of the State of Texas, including the
printing and supply of definitive Certificates, and shall take and have charge and control of the
Initial Certificate(s) pending the approval thereof by the Attorney General, the registration
thereof by the Comptroller of Public Accounts and the delivery thereof to the Purchasers.
Furthermore, the Mayor, Mayor Pro Tem, City Manager, Director of Finance/Treasurer,
and City Secretary, any one or more of said officials, are hereby authorized and directed to
furnish and execute such documents and certifications relating to the City and the issuance of
the Certificates, including a certification as to facts, estimates, circumstances and reasonable
expectations pertaining to the use and expenditure and investment of the proceeds of the
Certificates as may be necessary for the approval of the Attorney General and their registration
by the Comptroller of Public Accounts. In addition, such officials, together with the City's
financial advisor, bond counsel and the Paying Agent/Registrar, are authorized and directed to
make the necessary arrangements for the delivery of the Initial Certificate(s) to the Purchasers
and the initial exchange thereof for definitive Certificates.
SECTION 28: Notices to Holders-Waiver. Wherever this Ordinance provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to
the address of each Holder appearing in the Security Register at the close of business on the
business day next preceding the mailing of such notice.
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 Certificates. Where this Ordinance provides
for notice in any manner, such notice may be waived in writing by the Holder entitled to receive
such notice, either before or after the event with respect to which such notice is given, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 29: Cancellation. All Certificates surrendered for payment, redemption,
transfer, exchange, or replacement, if surrendered to the Paying Agent/Registrar, shall be
promptly cancelled by it and, if surrendered to the City, shall be delivered to the Paying
Agent/Registrar and, if not already cancelled, shall be promptly cancelled by the Paying
Agent/Registrar. The City may at any time deliver to the Paying Agent/Registrar for cancellation
any Certificates previously certified or registered and delivered which the City may have
acquired in any manner whatsoever, and all Certificates so delivered shall be Promptly
cancelled by the Paying Agent/Registrar. All cancelled Certificates held by the Paying
Agent/Registrar shall be returned to the City.
SECTION 30: Bond Counsel's Opinion. The Purchasers' obligation to accept delivery of
the Certificates is subject to being furnished a final opinion of Fulbright & Jaworski L.L.P.,
Dallas, Texas, approving the Certificates as to their validity, said opinion to be dated and
delivered as of the date of delivery and payment for the Certificates. An executed counterpart of
said opinion shall accompany the global certificates deposited with The Depository Trust
Company or a reproduction thereof shall be printed on the definitive Certificates in the event the
book entry only system shall be discontinued.
45039432.1 25
SECTION 31: CUSIP Numbers. CUSIP numbers may be printed or typed on the
definitive Certificates. It is expressly provided, however, that the presence or absence of CUSIP
numbers on the definitive Certificates shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Certificates as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Certificates.
SECTION 32: 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, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by
reason of this Ordinance or any provision hereof, and this Ordinance and all its provisions is
intended to be and shall be for the sole and exclusive benefit of the City, the Paying
Agent/Registrar and the Holders.
SECTION 33: Inconsistent Provisions. All ordinances, orders or resolutions, or parts
thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain
controlling as to the matters contained herein.
SECTION 34: 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 35: Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
SECTION 36: Construction of Terms. If appropriate in the context-of this Ordinance,
words of the singular number shall be considered to include the plural, words of the plural
number shall be considered to include the singular, and words of the masculine, feminine or
neuter gender shall be considered to include the other genders.
SECTION 37: Severability. If any provision of this Ordinance or the application thereof
to any circumstance shall be held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be valid, and the City Council
hereby declares that this Ordinance would have been enacted without such invalid provision.
SECTION 38: 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.
"NRMSII~' 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.
"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.
45039432.1
26
(b) Annual Reports. The City shall provide annually to each NRMSlR and any SID,
within six months after the end of each fiscal year (beginning with the fiscal year ending
September 30, 2001) financial information and operating data with respect to the City of the
general type included in the final Official Statement approved by Section 25 of this Ordinance,
being the information described in Exhibit B hereto. Financial Statements to be provided shall ....
be (1) prepared in accordance with the accounting principles described in Exhibit B hereto and
(2) 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 audited financial statements are not
available at the time the financial information and operating data must be provided, then the City
shall provide unaudited financial statements for the applicable fiscal year to each NRMSIR and
any SlD 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 NRMSlR 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 SlD 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 Certificates, if
such event is material within the meaning of the federal securities laws:
(1)
(2)
(3)
(4.)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
Principal and interest payment delinquencies;
Non-payment related defaults;
Unscheduled draws on debt service reserves reflecting financial difficulties;
Unscheduled draws on credit enhancements reflecting financial difficulties;
Substitution of credit or liquidity providers, or their failure to perform;
Adverse tax opinions or events affecting the tax-exempt status of the Certificates;
Modifications to rights of holders of the Certificates;
Certificate calls;
Defeasances;
Release, substitution, or sale of property securing repayment of the Certificates;
and
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
subsection (b) of this Section by the time required by such Section.
(d) Limitations, Disclaimers, and Amendments. The City shall be obligated to observe
and perform the covenants specified in this Section while, but only while, the City remains an
"obligated person" with respect to the Certificates within the meaning of the Rule, except that
the City in any event will give the notice required by subsection (c) hereof of any Certificate 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 Certificates, and nothing in this Section, express or implied, shall give any benefit
45039432.1 27
or any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the City's financial results, condition, or prospects or hereby undertake to update
any information provided in accordance with this Section or otherwise, except as expressly
provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Certificates at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR
BENEFICIAL OWNER OF ANY CERTIFICATE OR ANY OTHER PERSON, IN CONTRACT OR
TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE
CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT
SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON,
IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE
LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE.
No default by the City in observing or performing its obligations under this Section shall
constitute a breach of or default under this Ordinance for purposes of any other provision of this
Ordinance.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
The provisions of this Section may be amended by the City from time to time to adapt to
changed circumstances resulting from a change in legal requirements, a change in law, or a
change in the identity, nature, status, or type of operations of the City, but only if (1) the
provisions of this Section, as so amended, would have permitted underwriters to purchase or
sell Certificates in the primary offering of the Certificates in compliance with the Rule, taking into
account any amendments or interpretations of the Rule to the date of such amendment, as well
as such changed circumstances, and (2) either (a) the Holders of a majority in aggregate
principal amount (or any greater amount required by any other provision of this Ordinance that
authorizes such an amendment) of the Outstanding Certificates consent to such amendment or
(b) a Person that is unaffiliated with the City (such as nationally recognized bond counsel)
determines that such amendment will not materially impair the interests of the Holders and
beneficial owners of the Certificates. The provisionS of this Section may also be amended from
time to time or repealed by the City if the SEC amends or repeals the applicable provisions of
the Rule or a court of final jurisdiction determines that such provisions are invalid, but only if and
to the extent that reservation of the City's right to do so would not prevent underwriters of the
initial public offering of the Certificates from lawfullY purchasing or selling Certificates in such
offering. If the City so amends the provisions of this Section, it shall include with any amended
financial information or operating data next provided in accordance with subsection (b) 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 39: 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 V.'F.C.A., Government Code, Chapter 551, as
amended.
45039432.1
28
SECTION 40: Effective Date. This Ordinance shall take full force and effect after its
second reading and final adoption on the date shown below..
PASSED ON FIRST READING, May 8, 2001.
PASSED ON SECOND READING AND FINALLY ADOPTED, this May 22, 2001
CITY OF PLAINVIEW, TEXAS
ayor
ATTEST:
City Secretary
(City Seal)
45031370.1
29
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of May 22, 2001 (this "Agreement"), by and between
the City of Plainview, Texas (the "Issuer"), and The Bank of New York, New York, New York, a
state banking corporation organized and existing under the laws of the State of New York and
authorized to do busi_ness in the State of Texas, or its successors or assigns hereunder (the
"Bank"),
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the execution and delivery
of its "City of Plainview, Texas, Tax and Waterworks and Sewer System Surplus Revenue
Certificates of Obligation, Series 2001" (the "Securities"), dated May 15, 2001, which Securities
are scheduled to be delivered to the initial purchaser on or about June 26, 2001; and
WHEREAS, the Issuer has selected the Bank to serve as paying agent, registrar and
transfer agent with respect to such Securities; and
WHEREAS, the Bank has agreed to serve in such capacities for and on behalf of the
Issuer and is duly qualified and otherwise capable of performing the duties and responsibilities
contemplated by this Agreement with respect to the Certificates;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT Of BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01 Appointment. The Issuer hereby appoints the Bank to serve as Paying
Agent with respect to the Securities, and, as Paying Agent for the Securities, the Bank shall be
responsible for paying on behalf of the Issuer the principal, premium (if any), and interest on the
Securities as the same become due and payable to the registered owners thereof; all in
accordance with this Agreement and the "Bond Resolution" (hereinafter defined). The Issuer
hereby appoints the Bank as Registrar with respect to the Securities and, as Registrar for the
Securities, the Bank shall keep and maintain for and on behalf of the Issuer books and records
as to the ownership of said Securities and with respect to the transfer and exchange thereof as
provided herein and in the "Bond Resolution".
The Bank hereby accepts its appointment, and agrees to serve as the Paying Agent and
Registrar for the Securities.
Section 1.02 Compensation. As compensation for the Bank's services as Paying
Agent/Registrar, the Issuer hereby agrees to pay the Bank the fees and amounts set forth in
Annex A attached hereto for the first year of this Agreement and thereafter the fees and
amounts set forth in the Bank's current fee schedule then in effect for services as Paying
Agent/Registrar for municipalities, which shall be supplied to the Issuer on or before 90 days
prior to the close of the Fiscal Year of the Issuer, and shall be effective upon the first day of the
following Fiscal Year.
in addition, the Issuer agrees to reimburse the Bank upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Bank in accordance with any
45037459.1
of the provisions hereof (including the reasonable compensation and the expenses and
disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
"Acceleration Date" on any Security means the date on and after which the
principal or any or all installments of interest, or both, are due and payable on any
Security which has become accelerated pursuant to the terms of the Security.
"Bank Office" means the designated office of the Bank as indicated in Section
3.01 hereof. The Bank will notify the Issuer in writing of any change in location of the
Bank Office.
"Bond Resolution" means the resolution, order, or ordinance of the governing
body of the Issuer pursuant to which the Securities are issued, certified by the Secretary
or any other officer of the Issuer and delivered to the Bank.
"Fiscal Year" means the fiscal year of the Issuer, .ending September 30th.
"Holder" and "Security Holder" each means the Person in whose name a Security
is registered in the Secudty Register.
"Issuer Request" and "Issuer Order" means a wdtten request or order signed in
the name of the Issuer by the Mayor, City Secretary, Director of Finance/Treasurer or
City Manager, any one or more of said officials, and delivered to the Bank.
"Legal Holiday" means a day on which the Bank is required or authorized to be
closed.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or government or
any agency or political subdivision of a government.
"Predecessor Securities" of any particular Secudty means every previous
Security evidencing all or a portion of the same obligation as that evidenced by such
particular Secudty (and, for the purposes of this definition, any mutilated, lost, destroyed,
or stolen Security for which a replacement Security has been registered and delivered in
lieu thereof pursuant to Section 4.06 hereof and the Resolution).
"Redemption Date" when used with respect to any Security to be redeemed
means the date fixed for such redemption pursuant to the terms of the Bond Resolution.
"Responsible Officer" when used with respect to the Bank means the Chairman
or Vice-Chairman of the Board of Directors, the Chairman or Vice-Chairman of the
Executive Committee of the Board of Directors, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier,
any Assistant Cashier, any Trust Officer or Assistant Trust Officer, or any other officer of
45037459.1
2 ~l'l' A
the Bank customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
'Se_cu_rity Register" means a register maintained by the Bank on behalf of the
Issuer providing for ~he registration and transfers of Securities.
"Stated Maturity" means the date specified in the Bond Resolution the principal of
a Security is scheduled to be due and payable.
Section 2.02 Other Definitions. The terms "Bank," "Issuer," and "Securities (Security)"
have the meanings assigned to them in the recital paragraphs of this Agreement.
The term "Paying Agent/Registrar" refers to the Bank in the performance of the duties
and functions of this Agreement.
ARTICLE THREE
PAYING AGENT
Section 3.01 Duties of Paying Agent. As Paying Agent, the Bank shall, provided
adequate collected funds have been provided to it for such purpose by or on behalf of the
Issuer, pay on behalf of the Issuer the principal of each Secudty at its Stated Maturity,
Redemption Date, or Acceleration Date, to the Holder upon surrender of the Security to the
Bank at the following address:
The Bank of New York
Information Services
1301 Fannin Street, Suite 2215
Houston, Texas 77002
As Paying Agent, the Bank shall, provided adequate collected funds have been provided
to it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer the interest on
each Secudty when due, by computing the amount of interest to be paid each Holder and
making payment thereof to the Holders of the Securities (or their Predecessor Securities) on the
Record Date. All payments of principal and/or interest on the Securities to the registered
owners shall be accomplished (1) by the issuance of checks, payable to the registered owners,
drawn on the fiduciary account provided in Section 5.05 hereof, sent by United States mail, first
class, postage prepaid, to the address appearing on the Security Register or (2) by such other
method, acceptable to the Bank, requested in wdting by the Holder at the Holder's risk and
expense.
Section 3.02 Payment Dates. The Issuer hereby instructs the Bank to pay the pnncipal
of and interest on the Securities at the dates specified in the Bond Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01 Secudty Register - Transfers and Exchanges. The Bank agrees to keep
and maintain for and on behalf of the Issuer at the Bank Office books and records (herein
sometimes referred to as the "Security Register") for recording the names and addresses of the
45037459.1
3
Holders of the Securities, the transfer, exchange and replacement of the Securities and the
payment of the principal of and interest on the Securities to the Holders and containing such
other information as may be reasonably required by the Issuer and subject to such reasonable
regulations as the Issuer and Bank may prescribe. The Bank represents and warrants its office
in Houston, Texas will at all times have immediate access to the Security Register by electronic
or other means and '~ill be capable at all times of producing a hard copy of the Security Register
at its Houston office for. use by the Issuer. All transfers, exchanges and replacement of
Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be duly endorsed or be
accompanied by a written instrument of transfer, the signature on which has been guaranteed
by an officer of a federal or state bank or a member of the National Association of Securities
Dealers, in form satisfactory to the Bank, duly executed by the Holder thereof or his agent duly
authorized in wdting.
The Bank may request any supporting documentation it feels necessary to effect a
re-registration, transfer or exchange of the Securities.
To the extent possible and under reasonable circumstances, the Bank agrees that, in
relation to an exchange or transfer of Securities, the exchange or transfer by the Holders thereof
will be completed and new Securities delivered to the Holder or the assignee of the Holder in
not more than three (3) business days after the receipt of the Securities to be cancelled in an
exchange or transfer and the wdtten instrument of transfer or request for exchange duly
executed by the Holder, or his duly authorized agent, in form and manner satisfactory to the
Paying Agent/Registrar.
Section 4.02 Certificates. The Issuer shall provide an adequate inventory of printed
Securities to facilitate transfers or exchanges thereof. The Bank covenants that the inventory of
printed Securities will be kept in safekeeping pending their use and reasonable care will be
exercised by the Bank in maintaining such Securities in safekeeping, which shall be not less
than the care maintained by the Bank for debt securities of other governments or corporations
for which it serves as registrar, or that is maintained for its own securities.
Section 4.03 Form of Security Register. The Bank, as Registrar, will maintain the
Security Register relating to the registration, payment, transfer and exchange of the Securities
in accordance with the Bank's general practices and procedures in effect from time to time. The
Bank shall not be obligated to maintain such Security Register in any form other than those
which the Bank has currently available and currently utilizes at the time.
The Security Register may be maintained in written form or in any other form capable of
being converted into written form within a reasonable time.
Section 4.04 List of Security Holders. The Bank will provide the Issuer at any time
requested by the Issuer, upon payment of the required fee, a copy of the information contained
in the Security Register. The Issuer may also inspect the information contained in the Security
Register at any time the Bank is customarily open for business, provided that reasonable time is
allowed the Bank to provide an up-to-date listing or to convert the information into written form.
The Bank will not release or disclose the contents of the Security Register to any person
other than to, or at the wdtten request of, an authorized officer or employee of the Issuer, except
upon receipt of a court order or as otherwise required by law. Upon receipt of a court order and
45037459.1
4
prior to the release or disclosure of the contents of the Security Register, the Bank will notify the
Issuer so that the Issuer may contest the court order or such release or disclosure of the
contents of the Security Register.
Section 4.05 Return of Cancelled Certificates. The Bank will, at such reasonable
intervals as it dete_rm~_'nes, surrender to the Issuer, Securities in lieu of which or in exchange for
which other Securities have been issued, or which have been paid.
Section 4.06 Mutilated, Destroyed, Lost or Stolen Securities. The Issuer hereby
instructs the Bank, subject to the provisions of Section 20 of the Bond Resolution, to deliver and
issue Securities in exchange for or in lieu of mutilated, destroyed, lost, or stolen Securities as
long as the same does not result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost or stolen, the Bank may
execute and deliver a replacement Security of like form and tenor, and in the same
denomination and beadng a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in substitution for such destroyed lost or
stolen Security, only upon the approval of the Issuer and after (i) the filing by the Holder thereof
with the Bank of evidence satisfactory to the Bank of the destruction, loss or theft of such
Security, and of the authenticity of the ownership thereof and (ii) the furnishing to the Bank of
indemnification in an amount satisfactory to hold the Issuer and the Bank harmless. All
expenses and charges associated with such indemnity and with the preparation, execution and
delivery of a replacement Secudty shall be borne by the Holder of the Security mutilated, or
destroyed, lost or stolen.
Section 4.07 Transaction Information to Issuer. The Bank will, within a reasonable
time after receipt of written request from the Issuer, furnish the Issuer information as to the
Securities it has paid pursuant to Section 3.01, Securities it has delivered upon the transfer or
exchange of any Securities pursuant to Section 4.01, and Securities it has delivered in
exchange for or in lieu of mutilated, destroyed, lost, or stolen Securities pursuant to
Section 4.06.
ARTICLE FIVE
TH E BANK
Section 5.01 Duties of Bank. The Bank undertakes to perform the duties set forth
herein and agrees to use reasonable care in the performance thereof.
Section 5.02 Reliance on Documents, Etc. (a) The Bank may conclusively rely, as
to the truth of the statements and correctness of the opinions expressed therein, on certificates
or opinions furnished to the Bank.
(b) The Bank shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Bank was negligent in ascertaining the
pertinent facts.
(c) No provisions of this Agreement shall require the Bank to expend or risk its own
funds or otherwise incur any financial liability for performance of any of its duties hereunder, or
in the exercise of any of its dghts or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity satisfactory to it against such risks or
liability is not assured to it.
45037459.1
(d) The Bank may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note, security, or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties. Without limiting the
generality of the foregoing statement, the Bank need not examine the ownership of any
Securities, but-is pro_-tected in acting upon receipt of Securities containing an endorsement or
instruction of transfer or power of transfer which appears on its face to be signed by the Holder
or an agent of the Holder. The Bank shall not be bound to make any investigation into the facts
or matters stated in a resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note, security, or other paper or document supplied by
Issuer.
(e) The Bank may consult with counsel, and the written advice of such counsel or
any opinion of counsel shall be full and complete authorization and protection with respect to
any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon.
(f) The Bank may exercise any of the powers hereunder and perform any duties
hereunder either directly or by or through agents or attorneys of the Bank.
Section 5.03 Recitals of Issuer. The recitals contained herein with respect to the
Issuer and in the Securities shall be taken as the statements of the Issuer, and the Bank
assumes no responsibility for their correctness.
The Bank shall in no event be liable to the Issuer, any Holder or Holders of any Security,
or any other Person for any amount due on any Secudty from its own funds.
Section 5.04 Ma)/Hold Securities. The Bank, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the Issuer with the
same rights it would have if it were not the Paying Agent/Registrar, or any other agent.
Section 5.05 Moneys Held by Bank - Paying agent Account/Collateralization. A
paying agent account shall at all times be kept and maintained by the Bank for the receipt,
safekeeping and disbursement of moneys received from the Issuer hereunder for the payment
of the Securities, and money deposited to the credit of such account until paid to the Holders of
the Securities shall be continuously collateralized by securities or obligations which qualify and
are eligible under both the laws of the State of Texas and the laws of the United States of
Amedca to secure and be pledged as collateral for paying agent accounts to the extent such
money is not insured by the Federal Deposit Insurance Corporation. Payments made from such
account shall be made by check drawn on such account unless the owner of such Securities
shall, at its own expense and risk, request such other medium of payment.
The Bank shall be under no liability for interest on any money received by it hereunder.
Subject to the applicable unclaimed property laws of the State of Texas, any money
deposited with the Bank for the payment of the principal, premium (if any), or interest on any
Security and remaining unclaimed for three years after final maturity of the Security has become
due and payable will be paid by the Bank to the Issuer, and the Holder of such Security shall
thereafter look only to the Issuer for payment thereof, and all liability of the Bank with respect to
such moneys shall thereupon cease.
5o37 5 . 6 A
Section 5.06 Indemnification. To the extent permitted by law, the Issuer agrees to
~ndemnify the Bank for, and hold it harmless against, any loss, liability, or expense incurred
without negligence or bad faith on its part, arising out of or in connection with its acceptance or
administration of its duties hereunder, including the cost and expense against any claim or
liability in connection with the exercise or performance of any of its powers or duties under this
Agreement. __ --_
Section 5.07 Interpleader. The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over its person as well as funds on
deposit, in either a Federal or State District Court located in the State and County where either
the Bank Office or the administrative offices of the Issuer is located, and agree that service of
process by certified or registered mail, return receipt requested, to the address referred to in
Section 6.03 of this Agreement shall constitute adequate service. The Issuer and the Bank
further agree that the Bank has the right to file a Bill of Interpleader in any court of competent
jurisdiction to determine the rights of any Person claiming any interest herein.
Section 5.08 DT Services. It is hereby represented and warranted that, in the event
the Securities are otherwise qualified and accepted for "Depository Trust Company" services or
equivalent depository trust services by other organizations, the Bank has the capability and, to
the extent within its control, will comply with the "Operational Arrangements", which establishes
requirements for securities to be eligible for such type depository trust services, including, but
not limited to, requirements for the timeliness of payments, and funds availability, transfer
turnaround time, and notification of redemptions and calls.
ARTICLE SiX
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment. This Agreement may be amended only by an agreement in
wdting signed by both of the parties hereto.
Section 6.02 Assignment. This Agreement may not be assigned by either party without
the prior written consent of the other.
Section 6.03 Notices. Any request, demand, authorization, direction, notice, consent,
waiver, or other document provided or permitted hereby to be given or furnished to the Issuer or
the Bank shall be mailed or delivered to the Issuer or the Bank, respectively, at the addresses
shown on page 9.
Section 6.04 Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 6.05 Successors and Assigns. All covenants and agreements herein by the
Issuer shall bind its successors and assigns, whether so expressed or not.
Section 6.06 Severability. In case any provision herein shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 6.07 Benefits of Agreement. Nothing herein, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder, any benefit or any
legal or equitable right, remedy, or claim hereunder.
45037459.1 7 ~ j~
Section 6.08 Entire Agreement. This Agreement and the Bond Resolution constitute
the entire agreement between the parties hereto relative to the Bank acting as Paying
Agent/Registrar and if any conflict exists between this Agreement and the Bond Resolution, the
Bond Resolution shall govern.
Section6.09--_Counterparts. This Agreement may be executed in any number of
counterparts, eac~ of which shall be deemed an original and all of which shall constitute one
and the same Agreement.
Section 6.10 Termination. This Agreement will terminate (i) on the date of final
payment of the principal of and interest on the Securities to the Holders thereof or (ii) may be
earlier terminated by either party upon sixty (60) days written notice; provided, however, an
early termination of this Agreement by either party shall not be effective until (a) a successor
Paying Agent/Registrar has been appointed by the Issuer and such appointment accepted and
(b) notice given to the Holders of the Securities of the appointment of a successor Paying
Agent/Registrar. Furthermore, the Bank and Issuer mutually agree that the effective date of an
early termination of this Agreement shall not occur at any time which would disrupt, delay or
otherwise adversely affect the payment of the Securities.
Upon an early termination of this Agreement, the Bank agrees to promptly transfer and
deliver the Security Register (or a copy thereof), together with other pertinent books and records
relating to the Securities, to the successor Paying Agent/Registrar designated and appointed by
the Issuer.
The provisions of Section 1.02 and of Article Five shall survive and remain in full force
and effect following the termination of this Agreement.
Section 6.11 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
[SEAL]
Attest:
Title:
THE BANK OF NEW YORK
New York, New York
BY
Title:
Address:
10161 Centurion Parkway
2nd Floor
Jacksonville, FL 32256
(CITY SEAL)
Attest:
City Secretary
CITY OF PLAINVIEW, TEXAS
BY
Mayor
Address:
121 West 7th Street
Plainview, Texas 79072
45037459.1 9 ~ A
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
Exhibit B
to
Ordinance
The following information is referred to in Section 38 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 financial statements of the City appended to the Official Statement as
Appendix B, but for the most recently concluded fiscal year.
Statement.
The information contained in Tables 1 through 6 and 8 through 20 in the Official
Accounting Principles
The accounting principles referred to in such Section are the generally accepted
accounting principles as applicable to governmental units as prescribed by The Government
Accounting Standards Board.
45031370.1