HomeMy WebLinkAbout08-3498 ord80
ORDINANCE NO. 00 ~~~ +O
AN ORDINANCE authorizing the issuance of "CITY OF PLAINVIEW, TEXAS,
COMBINATION TAX AND REVENUE CERTIFICATES OF OBLIGATION,
SERIES 2008°; 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, a limited
pledge of the net revenues from the operation of the City's Waterworks
and Sewer System and a limited pledge of the net revenues of the City's
Sanitation System; and resolving other matters incident and relating to
the issuance, payment, security, sale and delivery of said Cert~cates,
including the approval and execution of a Paying Agent/Registrar
Agreement and a Purchase 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 $1,595,000 for the purpose of paying contractual obligations to be
incurred for {i) the construction of public works, to wit: (a) the excavation and lining of a cell for a
landfill, including development permits and the purchase of materials, equipment and machinery
therefor, and (b) improvements and extensions to the City's combined Waterworks and Sewer
System and (ii) professional services rendered in connection with the construction and financing
of the foregoing projects, has been duly published in the Plainview Daily Herald on May 30,
2008 and June 6, 2008, the date the first publication of such notice being not less than thirty-
one (31) days prior to the tentative date stated therein for the adoption 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 City 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 $1,550,000, to be designated and bear the title "CITY OF PLAINVIEW, TEXAS,
COMBINATION TAX AND REVENUE CERTIFICATES OF OBLIGATION, SERIES 2008"
(hereinafter referred to as the "Certificates°), for the purpose of paying contractual obligations to
be incurred for (i) the construction of public works, to wit: (a) the excavation and lining of a cell
for a landfill, including development permits and the purchase of materials, equipment and
machinery therefor, and (b) improvements and extensions to the City's combined Wateworks
and Sewer System and (ii) professional services rendered in connection with the construction
and financing of the foregoing projects; 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.
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SECTION 2: Fully Registered Obligations -Authorized Denominations -Stated
Maturities -Date. The Certificates are issuable in fully registered form only; shall be dated
July 1, 2008 (the "Cert~cate Date") and shall be in denominations of $5,000 or any integral
multiple thereof (within a Stated Maturity) and the Cert~cates 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
2009 $190,000 3.50°r6
2010 205,000 3.50°k
2011 215,000 3.50%
2012 225,000 3.50°r6
2013 230, 000 3.50%
2014 240,000 3.50°~
2015 245,000 3.50%
The Certificates shall bear interest on the unpaid principal amounts from the Cert~cate
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 March 1, 2009, until maturity.
SECTION 3: Terms of Payment-Paving Agent/Reaistrar. The principal of, premium, if
any, and the interest on the Cert~cates, due and payable by reason of maturity or otherwise,
shall be payable only to the registered owners or holders of the Cert~cates (hereinafter called
the "Holders") appearing on the registration and transfer books maintained by the Paying
AgenURegistrar and the payment thereof shall be in any coin or currency of the United States of
America which at the time of payment is legal tender for the payment of public and private
debts, and shall be without exchange or collection charges to the Holders.
The selection and appointment of The Bank of New York Mellon Trust Company, N.A.,
Dallas, Texas, to serve as Paying AgenURegistrar 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 AgenURegistrar, as provided herein and in accordance with the terms
and provisions of a "Paying AgenURegistrar Agreement°, substantially in the form attached
hereto as Exhibit A, and such reasonable rules and regulations as the Paying AgenURegistrar
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 AgenURegistrar at all times until the Certificates are paid and
discharged, and any successor Paying AgenURegistrar shall be a bank, trust company, financial
institution or other entity qual~ed and authorized to serve in such capacity and perform the
duties and services of Paying AgenURegistrar. Upon any change in the Paying AgenURegistrar
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 AgenURegistrar.
Principal of and premium, if any, on the Certificates shall be payable at the Stated
Maturities thereof only upon presentation and surrender of the Cert~cates to the Paying
AgenURegistrar at its designated offices initially in Dallas, Texas or, with respect to a successor
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Paying Agent/Registrar at the designated offices of such successor (the "Designated
PaymentlTransfer Office"). Interest on the Cert~cates shall be paid to the Holders whose
names appear in the Security Register at the close of business on the Record Date (the 15"' 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 Cert~cates shall be a Saturday, Sunday, a
legal holiday, or a day when banking institutions in the city where the Designated
PaymentlTransfer 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.
SECTION 4: Non-Redeemable. The Certificates are not subject to redemption prior to
maturity at the option of the City.
SECTION 5: Res~istration - Transfer - Exchan~ae 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 Cert~cates issued under and
pursuant to the provisions of this Ordinance, or if appropriate, the nominee thereof. Any
Certificate may be transferred or exchanged for Cert~cates 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 Cert~cate(s) authorized in
Section 8 hereof) for transfer at the Designated Payment/Transfer Office of the Paying
Agent/Registrar, the Paying AgenURegistrar 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
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Agent/Registrar shall register and deliver new Certificates to the Holder requesting the
exchange.
All Certificates issued in any transfer or exchange of Cert~cates shall be delivered to the
Holders at the Designated Payment/Transfer Office of the Paying Agerrt/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 Cert~cates
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 othervvise 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 Cert~cate 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 21 hereof and such new replacement Certificate shall be
deemed to evidence the same obligation as the mutilated, lost, destroyed, or stolen Certificate.
SECTION 6: Book-Entry-Only Transfers and Transactions. Notwithstanding the
provisions contained in Sections 3 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 Representation, by and between the City and DTC (the "Depository Agreement").
Pursuant to the Depository Agreement and the rules of DTC, the Cert~cates 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 Cert~cate (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 provide for
the Certificate certificates to be 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
and 5 hereof.
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84
SECTION 7: Execution -Registration. The Cert~cates 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 Cert~cates may be manual or facsimile.
Cert~cates 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 Cert~cates 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, as amended.
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 cert~cate 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
cert~cate 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 Certficate shall be conclusive evidence, and the only evidence,
that such Cert~cate has been duly cert~ed, registered and delivered.
SECTION 8: Initial Cert~cate(s). The Cert~cates herein authorized shall be initially
issued either (i) as a single fully registered cert~cate in the total principal amount stated in
Section 1 hereof with principal installments to become due and payable as provided in Section 2
hereof and numbered T-1, or (ii) as multiple fully registered certificates, being one cert~cate 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 Cert~cate(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 Cert~cate(s) submitted to the Office of
the Attorney General of the State of Texas for approval, cert~ed and registered by the Once 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 Certficate(s), the Paying Agent/Registrar,
pursuant to written instructions from the initial purchaser(s), or the designee thereof, shall
cancel the Initial Cert~cate(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.
SECTION 9: Forms. A. Forms Generally. The Cert~cates, 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 Cert~cates, 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
Cert~cates as evidenced by their execution. Any portion of the text of any Certficates may be
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set forth on the reverse thereof, with an appropriate reference thereto on the face of the
certificate.
The definitive Cert~cates and the Initial Certificate(s) shall be printed, lithographed,
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 Cert~cates.
REGISTERED REGISTERED
NO. $
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF PLAINVIEVN, TEXAS,
COMBINATION TAX AND REVENUE
CERTIFICATE OF OBLIGATION, SERIES 2008
Cert~cate Date: Interest Rate: Stated Maturity: CUSIP NO:
July 1, 2008 % March 1, 20_
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 Registered Owner named above, or the
registered assigns thereof, on the Stated Maturity date specked above the Principal Amount
hereinabove stated (without right of prior redemption) and to pay interest on the unpaid principal
amount hereof from the interest payment date next preceding the "Registration Date" of this
Certificate appearing below (unless this Certificate bears a "Registration Date" as of an interest
payment date, in which case it shall bear interest from such date, or unless the "Registration
Date" of this Certificate is prior to the initial interest payment date in which case it shall bear
interest from the Certificate Date) at the per annum rate of interest specked 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 March 1, 2009, until maturity. Principal of this
Certificate is payable at its Stated Maturity to the registered owner hereof, upon presentation
and surrender, at the Designated Payment/Transfer Office of the Paying Agent/Registrar
executing the registration cert~cate appearing hereon, or its successor. Interest is payable to
the registered owner of this Cert~cate (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 15"' 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. 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 PaymentlTransfer Office of the Paying Agent/Registrar is
located are authorized by law or executive order to close, then the date for such payment shall
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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. All payments of principal of,
premium, if any, and interest on this Cert~cate 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.
This Certificate is one of the series specified in its title issued in the aggregate principal
amount of $1,550,000 (herein referred to as the "Cert~cates") for the purpose of paying
contractual obligations to be incurred for (i) the construction of public works, to wit: (a) the
excavation and lining of a cell for a landfill, including development permits and the purchase of
materials, equipment and machinery therefor, and (b) improvements and extensions to the
City's combined Waterworks and Sewer System and (ii) professional services rendered in
connection with the construction and financing of the foregoing. projects; 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 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 from (i) a limited pledge of
the Net Revenues (as defined in the Ordinance) of the City's combined Watervvorks and Sewer
System (the "Utility System"}, such pledge being limited to an amount of $1,000 and being junior
and subordinate to the lien on and pledge of such Net Revenues securing the payment of "Prior
Lien Utility System Obligations" (identified and defined in the Ordinance) now outstanding and
hereafter issued by the City and (ii) a limited pledge of the Net Revenues (as defined in the
Ordinance) of the City's Sanitation System (the "Sanitation System"), such pledge being limited
to an amount of $1,000 and being junior and subordinate to the lien on and pledge of such Net
Revenues securing the payment of "Prior Lien Sanitation System Obligations" (identified and
defined in the Ordinance) hereafter issued by the City. In the Ordinance, the City reserves and
retains the right to issue Prior Lien Utility System Obligations and Prior Lien Sanitation System
Obligations without limitation as to principal amount but subject to any applicable terms,
conditions or restrictions under law or otherwise, as well as the right to issue Additional
Obligations, payable from the same sources as the Certificates, and, together with the
Certificates, equally and ratably secured by a parity lien on and pledge of the Net Revenues of
the Utility System and/or by a parity lien on and pledge of the Net Revenues of the Sanitation
System.
Reference is hereby made to the Ordinance, a copy of which is on file in the Designated
PaymentlTransfer Office of the Paying Agent/Registrar, and to all the provisions of which the
owner or holder of this Cert~cate 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 Net Revenues of the Utility System and the Net Revenues of the Sanitation
System pledged to the payment of the principal of and interest on the Cert~cates; the nature
and extent and manner of enforcement of the pledge; 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 AgentlRegistrar; the terms and provisions upon which the
tax levy and the pledges, charges and covenants made therein may be discharged at or prior to
the maturity 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.
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This Cert~cate, 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
Cert~cates of the same Stated Maturity, of authorized denominations, bearing the same rate of
interest, and of the same aggregate principal amount will be issued by the Paying
Agent/Registrar to the designated transferee or transferees.
The City and the Paying Agent/Registrar, and any agent of either, 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 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 Cert~cates
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.
1
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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.
COUNTERSIGNED:
CITY OF PLAINVIEW, TEXAS
Mayor
City Secretary
(city seal>
C. Form of Res~istration Certificate of Comptroller of Public Accounts to anoear on
Initial Cert~cate(s} only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER )
OF PUBLIC ACCOUNTS ) REGISTER NO.
THE STATE OF TEXAS )
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)
80225019.210807137
Comptroller of Public Accounts
of the State of Texas
9
89
1
only.
D. Form of Cert~cate of Paving Aaent/Reaistrar to aaoear on Definitive Certficates
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Certificate has been duly issued and registered under the provisions of the
within-mentioned Ordinance; the cert~cate or cert~cates 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 office of the Paying Agerrt/Registrar located in Dallas, Texas, is the
"Designated Payment/Transfer Office" for this Cert~cate.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas,
as Paying AgenURegistrar
C
1
Registration Date:
By
Authorized Signature
E. Form of Assi4nment.
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:
80225019.2/10807137
NOTICE: The signature on this
assignment must correspond with the
name of the registered owner as it
appears on the face of the within
Cert~cate in every particular.
10
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F. The Initial Cert~cate(s) shall be in the form set forth in aaraoraah B of this Section.
except that the form of a single fully registered Initial Certificate shall be modfied as follows:
REGISTERED
NO. T-1
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF PLAINVIEW, TEXAS,
COMBINATION TAX AND REVENUE
CERTIFICATE OF OBLIGATION, SERIES 2008
Cert~cate Date: July 1, 2008
Registered Owner:
Principal Amount:
REGISTERED
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 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).
(without right of prior redemption) and to pay interest on the unpaid principal amounts hereof
from the Cert~cate 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 1 of each year, commencing March 1, 2009, until maturity. Principal installments of
this Certificate are payable at its Stated Maturity to the registered owner hereof by The Bank of
New York Mellon Trust Company, N.A., Dallas, Texas (the "Paying Agent/Registrar"}, upon
presentation and surrender, at its designated offices in Dallas, Texas (the "Designated
PaymentlTransfer 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 15'" 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
AgenURegistrar, requested by, and at the risk and expense of, the registered owner. 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. All payments of principal of, premium, ff any, and interest on this
80225019.2/10807137 11
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Cert~cate 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 Cert~cates 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 Utility System and/or the Net Revenues of the
Sanitation System of equal rank and dignity with the lien and pledge securing the
payment of Cert~cates.
(b) The term "Cert~cates" shall mean the "CITY OF PLAINVIEW,
TEXAS, COMBINATION TAX AND REVENUE CERTIFICATES OF
OBLIGATION, SERIES 2008" 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 annual ad
valorem taxes levied each year by the City become delinquent.
(e) The term "Fiscal Year" shall mean the twelve month accounting
period used by the City which may be any twelve consecutive month period
established by the City.
(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 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 that, 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 of the Utility System" shall mean all
income, receipts and revenues of every nature derived or received from the
operation and ownership (excluding refundable meter deposits, restricted gifts
and grants in aid of construction) of the Utility System, including earnings and
income derived from the investment or deposit of moneys in any special funds or
accounts created and established for the payment and security of the Prior Lien
80225019.2/10807137 12
92
Utility System Obligations and other obligations payable solely from and secured
only by a lien on and pledge of the Net Revenues of the Utility System.
(h) The term "Gross Revenues of the Sanitation System" shall mean
all income, receipts and revenues of every nature derived or received from the
operation and ownership (excluding gifts and grant moneys, federal or state) of
the Sanitation System, including earnings and income derived from the
investment or deposit of moneys in any special funds or accounts created and
established for the payment and security of the Prior Lien Sanitation System
Obligations and other obligations payable solely from and secured only by a lien
on and pledge of the Net Revenues of the Sanitation System.
(i) The term Maintenance and Operating Expenses of the Sanitation
System" shall mean all reasonable and necessary expenses directly related and
attributable to the operation and maintenance of the System, including, but not
limited to, the cost of insurance, the purchase and carrying of stores, materials,
and supplies, the payment of salaries, labor and other expenses reasonably and
properly charged, under generally accepted accounting principles, to the
operation and maintenance of the Sanitation System. Depreciation charges on
equipment, machinery and other facilities comprising the System and
expenditures Gassed under generally accepted accounting principles as capital
expenditures shall not be considered as "Maintenance and Operating Expenses"
for purposes of determining "Net Revenues".
(j) The term "Maintenance and Operating Expenses of the Utility
System" shall mean all current expenses of operating and maintaining the Utility
System, including all salaries, labor, materials, repairs and extensions necessary
to render efficient service; provided, however, that only such repairs and
extensions, as in the judgment of the City Council, reasonably and fairly
exercised, are necessary to maintain the operations and render adequate service
to the City and the inhabitants thereof, or such as might be necessary to meet
some physical accident or condition which would otherwise impair obligations
payable from Net Revenues shall be deducted in determining "Net Revenues".
Depreciation charges shall not be considered Maintenance and Operating
Expenses. Maintenance and Operating Expenses shall include payments under
contracts for the purchase of water supply, treatment of sewage or other
materials, goods, services, or facilities for the Utility System to the extent
authorized by law and the provisions of such contract.
(k) The term "Net Revenues of the Sanitation System" shall mean the
Gross Revenues of the Sanitation System, with respect to any period, after
deducting the Maintenance and Operating Expenses of the Sanitation System
during such period.
(I) The term "Net Revenues of the Utility System" shall mean the
Gross Revenues of the Utility System, with respect to any period, after deducting
the Maintenance and Operating Expenses of the Utility System during such
period.
80225019.2/10807137 13
(m) The term "Outstanding", when used in this Ordinance with respect
to Certificates, means, as of the date of determination, all Cert~cates 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 deemed to be duly paid by the
City in accordance with the provisions of Section 22 hereof; and
(3) those mutilated, destroyed, lost, or stolen
Certificates which have been replaced with Certificates registered
and delivered in lieu thereof as provided in Section 21 hereof.
(n) The term "Prior Lien Utility System Obligations" shall mean
obligations now outstanding and hereafter issued which by the terms of the
authorizing ordinance are made payable from and secured by a lien on and
pledge of the Net Revenues of the Utility System ranking prior and superior to the
lien and pledge securing the payment of the Certificates, including, but not limited
to, the outstanding "City of Plainview, Texas, Tax and Waterworks and Sewer
Surplus Revenue Cert~cates of Obligation, Series 2001 ".
(o) The term "Prior Lien Sanitation System Obligations" shall mean
obligations hereafter issued which by the terms of the authorizing ordinance are
made payable from and secured by a lien on and pledge of the Net Revenues of
the Sanitation System ranking prior and superior to the lien and pledge securing
the payment of the Certificates.
(p) The term "Utility System" shall mean all properties, facilities and
plants currently owned, operated and maintained by the City for the supply,
treatment, transmission and distribution of treated potable water and the
collection, treatment and disposal of water-can'ied wastes, together with all future
extensions, improvements, replacements and additions thereto.
(q) The term "Sanitation System" shall mean the City's Soiid Waste
Collection and Disposal System, together with all rights, franchises and
agreements incident and related to the collection and disposal of solid waste
within the corporate limits of the City, and including, but not limited to, all plants,
collection vehicles, incinerators, sanitary landfills, or other works, facilities and
equipment of the City acquired, installed and operated for the purpose of
collecting, handling, storing, treating, neutralizing, stabilizing, or disposing of solid
wastes, garbage and rubbish, including sites therefor; provided, however, the
City, by ordinance adopted by the City Council, may identify and designate one
or more incinerators hereafter acquired or constructed, together with all property
incident and necessary to its operation, to be removed and not a part of the
Sanitation System as defined herein, and such facilities so identified and
designated, together with the revenues received and expenses incurred in
connection with the operation and maintenance thereof, shall not constitute a
part of the Sanitation System or be encumbered in any respect by the provisions
of this Ordinance.
80225019.2/10807137 14
94
SECTION 11: Cert~cate 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 2008 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. The Mayor, Mayor Pro Tem, City Manager,
Budget Manager, and City Secretary of the City, individually or jointly, are hereby authorized
and directed to make withdrawals from said Fund sufficient to pay the principal of and interest
on the Cert~cates as the same become due and payable, and, shall cause to be transferred to
the Paying Agent/Registrarfmm moneys on deposit in the Cert~cate 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 AgentlRegistrar 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 ident~ed 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 Cert~cate Fund shall be credited to, and any losses debited to, the said
Cert~cate Fund. All such investments shall be sold promptly when necessary to prevent any
default in connection with the Cert~cates.
SECTION 12: Tax Lew. To provide for the payment of the "Debt Service
Requirements" on the Certificates being (i) the interest on said Cert~cates and (ii) a sinking
fund for their redemption at maturity or a sinking fund of 2°/b (whichever amount shall be the
greater), there shall be and there is hereby levied for the current year and each succeeding year
thereafter while said Certificates or any interest thereon shall remain Outstanding, a sufficient
tax on each one hundred dollars' valuation of taxable property in said City, within the limitations
prescribed by law, adequate to pay such Debt Service Requirements, full allowance being made
for delinquencies and costs of collection; 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
Cert~cate 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 indebtedness.
Accrued interest received from the purchasers of the Certificates shall be deposited to
the Certificate Fund. In addition, any surplus proceeds from the sale of the Certificates not
expended for authorized purposes shall be deposited in the Certificate Fund, and such amounts
so deposited shall reduce the sums otherwise required to be deposited in said Certificate Fund
from ad valorem taxes.
SECTION 13: Limited Pledoe of Revenues. (a) The City hereby covenants and agrees
that, subject to the prior lien on and pledge of the Net Revenues of the Utility System to the
payment and security of Prior Lien Utility System Obligations, the Net Revenues of the Utility
System in an aggregate amount of $1,000 are hereby irrevocably pledged to the payment of the
principal of and interest on the Certificates, and the limited pledge of $1,000 of the Net
eos2so~sz/~aeo»s~ 15
85
Revenues of the Utility System herein made for the payment of the Certificates shall constitute a
lien on the Net Revenues of the Utility System in accordance with the terms and provisions
hereof until such time as the City shall pay all of such $1,000, after which time the pledge shall
cease. Furthermore, such lien on and pledge of the Net Revenues of the Utility System
securing the payment of the Certificates shall be valid and binding and fully perfected from and
after the date of adoption of this Ordinance without physical delivery or transfer or transfer of
control of the Net Revenues of the Utility System, the filing of this Ordinance or any other act; all
as provided in Chapter 1208 of the Texas Government Code ("Chapter 1208").
(b) 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 Sanitation
Obligations, the Net Revenues of the Sanitation System in an aggregate amount of $1,000 are
hereby irrevocably pledged to the payment of the principal of and interest on the Certficates,
and the limited pledge of $1,000 of the Net Revenues of the Sanitation System herein made for
the payment of the Cert~cates shall constitute a lien on the Net Revenues of the Sanitation
System in accordance with the terms and provisions hereof until such time as the City shall pay
all of such $1,000, after which time the pledge shall cease. Furthermore, such lien on and
pledge of the Net Revenues of the Sanitation System securing the payment of the Certficates
shall be valid and binding and fully perfected from and after the date of adoption of this
Ordinance without physical delivery or transfer or transfer of control of the Net Revenues of the
Sanitation System, the filing of this Ordinance or any other act; all as provided in Chapter 1208.
Chapter 1208 applies to the issuance of the Cert~cates and the limited pledge of the Net
Revenues of the Utility System and the limited pledge of the Net Revenues of the Sanitation
System granted by the City under this Section 13, and such pledge is therefore valid, effective
and perfected. If Texas law is amended at any time while the Certificates are Outstanding such
that the limited pledge of the Net Revenues of the Utility System and the Net Revenues of the
Sanitation System granted by the City under this Section 13 is to be subject to the filing
requirements of Chapter 9, Business 8~ Commerce Code, then in order to preserve to the
registered owners of the Certificates the pertection of the security interest in said pledge, the
City agrees to take such measures as it determines are reasonable and necessary under Texas
law to comply with the applicable provisions of Chapter 9, Business & Commerce Code and
enable a filing to pertect the security interest in said pledge to occur.
SECTION 14: Utility System Fund. The City hereby covenants and agrees that all
Gross Revenues of the Utility System (excluding earnings from the investment of money held in
any special funds or accounts created for the payment and security of Prior Lien Utility System
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,
appropriated and budgeted to the extent required for the following purposes and in the order of
priority shown, to wit:
First: To the payment of Maintenance and Operating Expenses of the Utility
System as defined herein or required by statute to be a first charge on and claim
against the Gross Revenues of the Utility System.
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
Utility System Obligations in accordance with the terms and provisions of the
ordinances authorizing the issuance of Prior Lien Utility System Obligations.
aoz2so~s.z/~oeo7~s~ 16
96
Third: Equally and ratably, to the payment of the limited amounts pledged to the
payment of the Certificates and Additional Obligations, if issued.
Any Net Revenues of the Utility System 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: Sanitation O~eratinsa Fund. The City hereby covenants and agrees that
all Gross Revenues of the Sanitation System (excluding earnings from the investment of money
held in any special funds or accounts created for the payment and security of Prior Lien
Sanitation System 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 "Sanitation Operating
Fund" (hereinafter called the "Operating Fund"). All moneys deposited to the credit of the
Operating Fund shall be allocated, appropriated and budgeted to the extent required for the
following purposes and in the order of priority shown, to wk:
First: To the payment of Maintenance and Operating Expenses of the Sanitation
System as defined herein or required by statute to be a first charge on and claim
against the Gross Revenues of the Sanitation System.
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
Sanitation System Obligations in accordance with the terms and provisions of the
ordinances authorizing the issuance of Prior Lien Sanitation System Obligations.
Third: Equally and ratably, to the payment of the limited amounts pledged to the
payment of the Cert~cates and Additional Obligations, if issued.
Any Net Revenues of the Sanitation System remaining in the Operating 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 16: Deaosits to Certificate Fund. Subject to the provisions of Section 13
hereof, the City hereby covenants and agrees to cause to be deposited in the Certificate Fund
from the pledged Net Revenues of the Utility System in the Utility System Fund and from the
pledged Net Revenues of the Sanitation System, the amount thereof pledged to the payment of
the Certificates.
The City covenants and agrees that the amount of pledged Net Revenues of the Utility
System ($1,000) and the amount of pledged Net Revenues of the Sanitation System ($1,000),
together with other lawfully available revenues appropriated by the City for payment of the debt
service requirements on the Certificates and ad valorem taxes levied, collected, and deposited
in the Certificate Fund for and on behalf of the Certificates, will be an amount equal to one
hundred percent (100%) of the amount required to fully pay the interest and principal due and
payable on the Certificates. In addition, any surplus proceeds from the sale of the Certificates
not expended for authorized purposes shall be deposited in the Certificate Fund, and such
amounts so deposited shall reduce the sums otherwise required to be deposited in said Fund
from ad valorem taxes, the Net Revenues of the Utility System and the Net Revenues of the
Sanitation System.
80225019.2/10807137 17
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SECTION 17: 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 18: Special Covenants. The City hereby further covenants as follows:
(a) It has the lawful power to pledge the Net Revenues of the Utility
System and the Net Revenues of the Sanitation 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, Govemment Code, Sections 1502.56 and
1502.58, V.T.C.A., Locai Government Code, Sections 271.041, et seq. and
V.T.C.A., Health and Safety Code, Section 363.135.
(b) Other than for the payment of the Prior Lien Utility System
Obligations and the Certificates, the Net Revenues of the Utility System have not
in any manner been pledged to the payment of any debt or obligation of the City
or of the Utility System.
(c) Other than the payment of the Cert~cates, the Net Revenues of
the Sanitation System have not in any m manner been pledged to the payment of
any debt or obligation of the City or of the Sanitation System.
SECTION 19: Issuance of Prior Lien Oblioations and Additional Obligations. The City
hereby expressly reserves the right to hereafter issue Prior Lien Utility System Obligations and
Prior Lien Sanitation System Obligations, without limitation as to principal amount but subject to
any terms, conditions or restrictions applicable thereto under law or otherwise, and such Prior
Lien Obligations hereafter issued may be payable, in whole or in part, from the Net Revenues of
the Utility System or Sanitation System (without impairment of the obligation of contract with the
Holders of the Certificates) upon such terms and secured in such manner as the City Council
may determine. Additionally, the City reserves the right without any limitations or restrictions to
issue Additional Obligations payable (in whole or in part) from and secured by a lien on and
pledge of the Net Revenues of the Utility System and/or a lien on and pledge of the Net
Revenues of the Sanitation System of equal rank and dignity with the payment of the
Certificates.
SECTION 20: Application of Prior Lien Obligations Covenants and Agreements. It is the
intention of this governing body and accordingty 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.
80225019.2/10807137 18
98
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 Utility System and Sanitation 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 Utility System Obligations or Prior Lien Sanitation
System Obligations, as applicable, and to the extent of any irreconcilable conflict between the
provisions contained herein and in the ordinances authorizing the issuance of the Prior Lien
Utility System Obligations or Prior Lien Sanitation Obligations, as the case may be, 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 Utility System Prior Lien Obligations and
Sanitation System Prior Lien Obligations, as the case may be. Notwithstanding the above, any
change or modification affecting the application of .revenues derived from the operation of the
Utility System or Sanitation System shall not impair the obligation of contract with respect to the
pledge of revenues herein made for the payment and security of the Certificates.
SECTION 21: Mutilated -Destroyed -Lost and Stolen Certificates. In case any
Cert~cate shall be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may
execute and deliver a replacement Cert~cate of like form and tenor, and in the same
denomination and bearing a number rwt 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 AgentlRegistrar 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 indemn~cation 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 Cert~cate shall be borne by the Holder of the Cert~cate 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 Cert~cates.
SECTION 22: Satisfaction of Oblis~ation 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 Cert~cates, at the times and in the manner stipulated in this Ordinance, then the pledge of
taxes levied under this Ordinance, the Net Revenues of the Utility System and the Net
Revenues of the Sanitation System (to the extent such pledge of Net Revenues shall not have
been discharged or terminated by prior payment of principal of or interest on the Certificates)
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
80225019.2/10807137 19
__ __ 99
pay in full such Certificates or the principal amount(s) thereof at maturity, together with all
interest due thereon, shall have been irrevocably deposited with and held in trust by the Paying
Agent/Registrar, or an authorized escrow agent, or (ii) Government Securities shall have been
irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow agent,
which Government Securities have been cert~ed 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 Cert~cates, or the principal amount(s)
thereof, on and prior to the Stated Maturity thereof. The City covenants that no deposit of
moneys or Govemment Securities will be made under this Section and no use made of any
such deposit which would cause the Cert~cates 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 Govemment 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 of the Cert~cates 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
AgentlRegistrar to the City shall be subject to any applicable unclaimed property laws of the
State of Texas.
SECTION 23: Ordinance aContract -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 while any Certificates remain Outstanding except as permitted in this
Section and in Section 37 hereof. 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, 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 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 Cert~cates, (2) give
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 24: Covenants to Maintain Tax-Exemat Status. {a) Definitions. When used in
this Section, the following terms have the following meanings:
"Closing Date" means the date on which the Cert~cates are first authenticated and
delivered to the initial purchasers against payment therefor.
eo22so~s.z/~oao»a~ 20
100
"Code" means the Intemal Revenue Code of 1986, as amended by alt 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 out the 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 Intemal Revenue
Code of 1954, which are applicable to the Certificates. Any reference to any speck Regulation
shall also mean, as appropriate, any proposed, temporary or final Income Tax Regulation
designed to supplement, amend or replace the speck 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,
constrcuction 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
Cert~cate to become includable in the gross income, as defined in section 81 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 recogni2ed 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:
(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
80225019.2/10807137 21
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(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 stake-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 othervvise transferred
in a transaction which is the economic equivalent of a loan.
(e) Not to Invest at Hioher 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 Resort. The City shall timely file the information required by
Section 149(e) of the Code with the Secretary of the Treasury on Form 8038-G or such other
form and in such place as the Secretary may prescribe.
(h) Rebate of Arbitras~e 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.
1
80225019.210807137 22
102
(2) Not less frequentty than each Computation Date, the City shall
calculate the Rebate Amount in accordance with rules set forth in section 148(f)
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 Cert~cates until six years after the final Computation Date.
(3) As additional consideration for the purchase of the Cert~cates 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
Cert~cates equals (i) in the case of a Final Computation Date as defined in
Section 1.148-3(e)(2) of the Regulations, one hundred percent (100%) of the
Rebate Amount on such date; and (ii) in the case of any other Computation Date,
ninety percent (90%) of the Rebate Amount on such date. In all cases, the
rebate payments shall be made at the times, in the installments, to the place and
in the manner as is or may be required by section 148(f) of the Code and the
Regulations and rulings thereunder, and shall be accompanied by Form 8038-T
or such other forms and information as is or may be required by Section 148(f) of
the Code and the Regulations and rulings thereunder.
{4) The City shall exercise reasonable diligence to assure that no errors
are made in the calculations and payments required by paragraphs (2) and (3),
and if an error is made, to discover and promptly correct such error within a
reasonable amount of time thereafter {and in all events within one hundred eighty
(180) days after discovery of the error), including payment to the United States of
any additional Rebate Amount owed to it, interest thereon, and any penalty
imposed under Section -1.148 3(h) of the Regulations.
(i) Not to Divert Arbitra~ae 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
resulted if the transaction had been at arm's length and had the Yield of the Certificates not
been relevant to either party.
(i) Elections. The City hereby directs and authorizes the Mayor, Mayor Pro Tem,
City Manager, Budget Manager and City Secretary, 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.
Q) Qualfied 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 represents the amount of "tax exempt obligations"
80225018.2/10807137 23
__
(excluding private activity bonds) to be issued by the City (including all subordinate entities of
the City) for the calendar year 2008 will not exceed $10,000,000.
SECTION 25: Sale of Certificates -Official Statement A~~roval. The sale of the
Certificates authorized by this Ordinance to Southwest Securities, Inc. (herein referred to as the
"Purchasers") in accordance with the Purchase Agreement, dated July 8, 2008, attached
hereto as Exhibit B and incorporated herein by reference as a part of this Ordinance for all
purposes. The Mayor or Mayor Pro Tem are hereby authorized and directed to execute said
Purchase Agreement for and on behalf of the City and as the act and deed of this Council, and
in regard to the approval and execution of the Purchase Agreement, the Council hereby finds,
determines and declares that the representations, warranties and agreements of the City
contained in the Purchase Agreement are true and correct in all material respects and shall be
honored and performed by the City.
Furthermore, the use of the Preliminary Official Statement, dated July 1, 2008, by the
Purchasers in connection with the public offering and sale of the Cert~cates is hereby raged,
confirmed and approved in all respects. The final Official Statement, which reflects the terms of
sale (together with such changes approved by the Mayor, Mayor Pro Tem, City Manager,
Budget Manager or City Secretary, individually or collectively), shall be and is hereby in all
respects approved, and the Purchasers are hereby authorized to use and distribute said final
Official Statement, dated July 8, 2008 in the reoffering, sale and delivery of the Certificates to
the public. The Mayor and City Secretary are further authorized and directed to manually
execute and deliver for and on behalf of the City copies of said Official Statement in final form
as may be required by the Purchasers, and such final Official Statement in the form and content
manually executed by said officials shall be deemed to be approved by the City Council and
constitute the Official Statement authorized for distribution and use by the Purchasers.
SECTION 26: Proceeds of Sale. The proceeds of sale of the Cert~cates, excluding the
accrued interest received from the Purchasers and amounts to pay costs of issuance and
municipal bond insurance premium, 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, as amended, including specifically guaranteed
investment contracts permitted in V.T.C.A., Section 2256.015, et seq, 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 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.
SECTION 27: Control and Custody of Certfcates. 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, Budget Manager, 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 certfication as to facts, estimates, circumstances and reasonable
80225019.2/10807137 2e~
104
expectations pertaining to the use and expenditure and investment of the proceeds of the
Cert~cates 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 AgentlRegistrar, are authorized and directed to
make the necessary arrangements for the delivery of the Initial Cert~cate(s) to the Purchasers
and the initial exchange thereof for definitive Certificates.
SECTION 28: Notices to Holders -Waiver. Wherever this Ordinance provides far 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 AgenURegistrar, 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 Cert~cates surrendered for payment, transfer,
exchange, or replacement, ff surrendered to the Paying AgenURegistrar, shall be promptly
cancelled by it and, if surrendered to the City, shall be delivered to the Paying AgenURegistrar
and, if not already cancelled, shall be promptly cancelled by the Paying AgenURegistrar. The
City may at any time deliver to the Paying AgenURegistrar 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
AgenURegistrar. All cancelled Certificates held by the Paying AgenURegistrar shall be returned
to the City.
SECTION 30: Bond Counsel's Ocinion. The Purchasers' obligation to accept delivery of
the Cert~cates is subject to being furnished a final opinion of Fulbright 8 Jaworski L.L.P.,
Dallas, Texas, approving the Cert~cates as to their validity, said opinion to be dated and
delivered as of the date of delivery and payment for the Cert~cates. 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.
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 signficance 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
80225019.2/10807137 25
105
intended to be and shall be for the sole and exclusive benef+t of the City, the Paying
AgenURegistrar 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 of
reference 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: $everability. 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.
"NRMSIR" means each person whom the SEC or its staff has determined to be a
nationally recognized municipal securities information repository within the meaning of the Rule
from time to time.
"Rule" means SEC Rule 15c2-12, as amended from time to time.
"SEC' means the United States Securities and Exchange Commission.
"SID" means any person designated by the State of Texas or an authorized department,
officer, or agency thereof as, and determined by the SEC or its staff to be, a state information
depository within the meaning of the Rule from time to time.
(b) Annual Reports. The City shall annually update, within six months after the end
of each fiscal year (beginning with the fiscal year ending September 30, 2008) 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 C hereto, and upon request furnish such information to the party making a request
therefor; provided, however, the City reserves the right at any time to commence making filing of
such information with any SID in lieu of providing such information upon request. Financial
statements to be provided shall be (1) prepared in accordance with the accounting principles
described in Exhibit C 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
80225019.2/10807137 26
106
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 the requesting party with the financial information and operating data
and later furnish to each requesting party the annual audit report, when and if the same
becomes available.
If the City changes its fiscal year, it will include in the update of financial information and
operating data to be furnished upon request a statement of such change (and of the date of the
new fiscal year end) or if the City has elected to file such annual information with the SID, it will
notify the SID of such change and new fiscal year prior to the next filing date the City would
otherwise be required to provide updated 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 any SID or filed with the SEC.
(c) Material Event Notices. The City shall notify any SID and either each NRMSIR or
the MSRB, in a timely manner, of any of the following events with respect to the Certificates, if
such event is material within the meaning of the federal securities laws:
1. Principal and interest payment delinquencies;
2. Non-payment related defaults;
3. Unscheduled draws on debt service reserves reflecting financial d~culties;
4. Unscheduled draws on credit enhancements reflecting financial difficulties;
5. Substitution of credit or liquidity providers, or their failure to perform;
6. Adverse tax opinions or events affecting the tax-exempt status of the Certificates;
7. Modifications to rights of holders of the Cert~cates;
8. Certificate calls;
9. Defeasances;
10. Release, substitution, or sale of property securing repayment of the Cert~cates;
and
11. 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 Cert~cates within the meaning of the Rule,
except that the City in any event will give the notice required by subsection (c) hereof of any
Cert~cate 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 Certficates, and nothing in this Section, express or implied, shall give any benefit
or any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
80225019.2110807137 27
- _ __ 1 ~7
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.
Notwithstanding anything herein to the contrary, 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 Cert~cates in the primary offering of the
Cert~cates 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 da 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.T.C.A., Government Code, Chapter 551, as
amended.
80225019.2/10807137 2$
108 - _ ---
SECTION 40: Effective Date. This Ordinance shall take effect and be in full force from
and after its final adoption on the date shown below in accordance with V.T.C.A., Government
Code, Section 1201.028, as amended.
(remainder of page left` blank intentionally]
80225019.210807137 29
_ - - _. -109
PASSED ON FIRST READING, July 3, 2008.
PASSED ON SECOND READING AND FINALLY ADOPTED, this July 8, 2008.
CITY OF PLAINVIEW, TEXAS
G•
a r
ATTEST:
City Secretary
(City Seal)
1
80225019.2/10807137 S_~
110
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
80225019.2/10807137 /4-~
-111
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of July 8, 2008 (this "Agreement"), by and between
the City of Plainview, Texas (the "Issuer"), and The Bank of New York Mellon Trust Company,
N.A., a banking corporation organized and existing under the laws of the United States of
America (the "Bank"),
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the execution and delivery
of its "City of Plainview, Texas, Combination Tax and Revenue Cert~cates of Obligation, Series
2008" (the "Securities"}, dated July 1, 2008, such Securities scheduled to be delivered to the
initial purchasers thereof on or about August 12, 2008; and
WHEREAS, the Issuer has selected the Bank to serve as Paying Agent/Registrar in
connection with the payment of the principal of, premium, if any, and interest on said Securities
and with respect to the registration, transfer and exchange thereof by the registered owners
thereof; and
WHEREAS, the Bank has agreed to serve in such capacities for and on behalf of the
Issuer and has full power and authority to perform and serve as Paying Agent/Registrar for the
Securities;
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
AgentlRegistrar, the Issuer hereby agrees to pay the Bank the fees and amounts set forth in
Annex A attached hereto.
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
of the provisions hereof {including the reasonable compensation and the expenses and
disbursements of its agents and counsel).
80236517.1110807137
1-12
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 in Dallas, Texas at
the address shown 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,
cert~ed 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 Security Register.
"Issuer Request" and "Issuer Order" means a written request or order
signed in the name of the Issuer by the Mayor, Mayor Pro Tem, City Manager,
Budget Manager, or City Secretary, 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 govemment.
"Predecessor Securities" of any particular Security means every previous
Security evidencing all or a portion of the same obligation as that evidenced by
such particular Security (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
Bond 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
80236517.1/10807137
2
-- - 113
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 the Bank
customarily pertorming 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 refer-ed because of his
knowledge of and familiarity with the particular subject.
"Security Register" means a register maintained by the Bank on behalf of
the Issuer providing for the 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 Pavino Aoent. 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 Security at its Stated Maturity,
Redemption Date, or Acceleration Date, to the Holder upon surrender of the Security to the
Bank at the following address: P. O. Box 2320, Dallas, Texas 75221-2320 or 2001 Bryan Street,
9'" Floor, Dallas, Texas 75201, Attention: Operations.
As Paying Agent, the Bank shall, provided adequate collected funds have been provided
to it for such purpose by or on behaff of the Issuer, pay on behalf of the Issuer the interest on
each Security 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 (as defined in the Bond Resolution). 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 paying agent 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 writing by
the Holder at the Holder's risk and expense.
Section 3.02 Payment Dates. The Issuer hereby instructs the Bank to pay the principal
of and interest on the Securities at the dates specified in the Bond Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01 Security Resister -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
Holders of the Securities, the transfer, exchange and replacement of the Securities and the
80236517.1/10807137 3
114
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 the Bank may prescribe. 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 writing.
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 written 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 AgenVRegistrar.
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 written 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
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.
80236517.1 N 0807137 4
-- 115
Section 4.05 Retum of Cancelled Cert~cates. The Bank will, at such reasonable
intervals as it determines, 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. DesVoved. Lost or Stolen Securities. The Issuer hereby
instructs the Bank, subject to the provisions 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 bearing 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 Security 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
THE 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 con'ectness of the opinions expressed therein, on cert~cates
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 rights 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.
(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
80236517.1110807137 rj
116
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
protected 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 the
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 Security from its own funds.
Section 5.04 Mav 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 -Paving Agent Account/Collateralization. Money
deposited by the Issuer with the Bank of the principal {or Redemption Price, ff applicable) of or
interest on any Securities shall be segregated from other funds of the Bank and the Issuer and
shall be held in trust for the benefit of the Holders of such Securities.
All money deposited with the Bank hereunder shall be secured in the manner and to the
fullest extent required by law for the security of funds of the Issuer.
Amounts held by the Bank which represent principal of and interest on the Securities
remaining unclaimed by the owner after the expiration of three years from the date such
amounts have become due and payable shall be reported and disposed of by the Bank in
accordance with the provisions of Texas law including, to the extent applicable, Title 6 of the
Texas Property Code, as amended. The Bank shall have no liability by virtue of actions taken in
compliance with this provision.
The Bank is not obligated to pay interest on any money received by it hereunder.
This Agreement relates solely to money deposited for the purposes described herein,
and the parties agree that the Bank may serve as depository for other funds of the Issuer, act as
trustee under indentures authorizing other bond transactions of the Issuer, or act in any other
capacity not in conflict with its duties hereunder.
Section 5.06 Indemnification. To the extent permitted by law, the Issuer agrees to
indemnify the Bank for, and hold it harmless against, any loss, liability, or expense incurred
80236517.1 /10807137 6
fi17
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 Interoleader. The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or wntroversy over its person as well as funds on
deposit, in either a Federal or State District Court located in the State and County where 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 in the State
of Texas 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
writing 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 of reference 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 Severabilitv. 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 Benefds 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.
1
80238517.1 /10807137 7
118
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
AgentRegistrar and if any conflict exists between this Agreement and the Bond Resolution, the
Bond Resolution shall govern.
Section 6.09 Countercarts. This Agreement may be executed in any number of
counterparts, each 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 AgenURegistrar 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
AgentRegistrar. Furthermore, the Bank and the Issuer mutually agree that the effective date of
an early termination of this Agreement shalt 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 AgenURegistrar 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.
80236517.1!10807137 8
II
II
1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.
Attest:
Title
Attest:
City Secretary
80236517.1/10807137
BY:
Title
Address: 2001 Bryan Street, 8"' Fbor
Dallas, Texas 75201
CITY OF PLAINVIEW, TEXAS
BY:
Mayor
Address: 901 Broadway
Plainview, Texas 79072
S-1
~~rt19
120
ANNEX A
80236517.1/10807137 /~1-~
_-~~
EXHIBIT B
PURCHASE AGREEMENT
1
80225019.2/10807137 B-~
122 _ - _ - -- _
CITY OF PLAINVIEW, TEXAS
(Hale County)
$1,550,000
COMBINATION TAX AND REVENUE CERTIFICATES OF OBLIGATION
SERIES 2008
PURCHASE AGREEMENT
July 8, 2008
Honorable Mayor and City Council
City of Plainview, Texas
901 Broadway
Plainview, Texas 79072
Ladies and Gentlemen:
The undersigned, Southwest Securities, Inc. (the "Underwriter"), acting on its own behalf
and not acting as a fiduciary or agent for the City of Plainview, Texas (the "Issuer "), offers to
enter into the following agreement (this "Agreement ") with the Issuer which, upon the Issuer's
written acceptance of this offer, will be binding upon the Issuer and upon the Underwriter. This
offer is made subject to the Issuer's written acceptance hereof on or before 10:00 p.m.,
Plainview, Texas time, on July 8, 2008, and, if not so accepted, will be subject to withdrawal by
the Underwriter upon written notice delivered to the Issuer at any time prior to the acceptance
hereof by the Issuer. Terms not otherwise defined in this Agreement shall have the same
meanings set forth in the Ordinance (as defined herein) or in the Official Statement (as defined
herein).
1. Purchase and Sale of the Certificates. Subject to the terms and conditions and in
reliance upon the representations, warranties and agreements set forth herein, the Underwriter
hereby agrees to purchase from the Issuer, and the Issuer hereby agrees to sell and deliver to the
Underwriter, all, but not less than all, of each of the Issuer's $1,550,000 Combination Tax and
Revenue Certificates of Obligation, Series 2008 (the "Certificates"). Inasmuch as this purchase
and sale represents a negotiated transaction, the Issuer understands, and hereby confirms, that the
Underwriter is not acting as a fiduciary of the Issuer, but rather is acting solely in its capacity as
an underwriter for its own account.
The principal amount of the Certificates to be issued, the dated date therefor, the
maturities and redemption provisions and interest rates per annum are set forth in Schedule I
hereto. The Certificates shall be as described in, and shall be issued and secured under and
pursuant to the provisions of an ordinance adopted by the Issuer on July 8, 2008 (the
"Ordinance ").
HOU:2819384.3
- - -- _ _ 123
The purchase price for the Certificates shall be $1,546,740.75 (representing the par
amount of the Certificates, plus a net reoffering premium of $9,585.55 and less an underwriting
discount of $12,844.80), plus accrued interest on the Certificates, calculated on the basis of a
360-day year of twelve 30-day months, from the dated date of the Certificates to the date of the
Closing.
Delivered to the Issuer herewith is the Underwriter's good faith corporate check payable
to the order of the Issuer in the amount of $15,500.00 {the "Checl~'). In the event the Issuer
accepts this Agreement, such check shall be held uncashed by the Issuer until the time of
Closing, at which time such check shall be returned uncashed to the Underwriter. In the event
that the Issuer does not accept this Agreement, such check will be immediately returned to the
Underwriter. Should the Issuer fail to deliver the Certificates at the Closing (as defined herein},
or should the Issuer be unable to satisfy the conditions of the obligations of the Underwriter to
purchase, accept delivery of and pay for the Certificates, as set forth in this Agreement (unless
waived by the Underwriter), or should such obligations of the Underwriter be terminated for any
reason permitted by this Agreement, such check shall immediately be returned to the
Underwriter. In the event that the Underwriter fails (other than for a reason permitted hereunder)
to purchase, accept delivery of and pay for the Certificates at the Closing as herein provided,
such check shall be cashed and the amount thereof retained by the Issuer as and for fully
liquidated damages for such failure of the Underwriter, and, except as set forth in Sections 8 and
10 hereof, no party shall have any further rights against the other hereunder. The Underwriter
and the Issuer understand that in such event the Issuer's actual damages may be greater or may
be less than such amount. Accordingly, the Underwriter hereby waives any right to claim that
the Issuer's actual damages are less than such amount, and the Issuer's acceptance of this offer
shall constitute a waiver of any right the Issuer may have to additional damages from the
Underwriter with regard to the transactions described herein. The Underwriter hereby agrees not
to stop or cause payment on said check to be stopped unless the Issuer has breached any of the
terms of this Agreement or the obligations of the Underwriter under this Agreement aze
terminated for any reason permitted by this Agreement.
2. Public Offering. The Underwriter agrees to make a bona fide public offering of
all of the Certificates at a price not to exceed the public offering price set forth on page 2 of the
Official Statement and may subsequently change such offering price without any requirement of
prior notice. The Underwriter may offer and sell the Certificates to certain dealers (including
dealers depositing the Certificates into investment trusts) and others at prices lower than the
public offering price stated on page 2 of the Official Statement. On or before the Closing, the
Underwriter shall execute an Issue Price Certificate, prepazed by Bond Counsel, verifying the
initial offering prices to the public at which a substantial amount of each stated maturity of the
Certificates was sold to the public.
3. The Official Statement.
(a} The Issuer previously has delivered copies of the Preliminary Official
Statement posted and disseminated on July 1, 2408 (the "Preliminary Official
Statement") to the Underwriter. The Issuer will prepare a final Official Statement
relating to the Certificates, which will be (1) dated the date of this Agreement, (2)
2
HOU:2819384.3
124
complete within the meaning of the United States Securities and Exchange Commission's
Rule 15c2-12, as amended (the "Rule"), and (3) substantially in the form of the most
recent version of the Preliminary Official Statement provided to the Underwriter before
the execution hereof. Such final Official Statement, including the cover page thereto, all
exhibits, appendices, maps, charts, pictures, diagrams, reports, and statements included or
incorporated therein or attached thereto, and all amendments and supplements thereto that
may be authorized for use with respect to the Certificates, is herein referred to as the
"~cial Statement." Until the Official Statement has been prepared and is available for
distribution, the Issuer shall provide to the Underwriter sufficient quantities of the
Preliminary Official Statement as the Underwriter deems reasonably necessary to satisfy
the obligation of the Underwriter under the Rule with respect to distribution to each
potential customer, upon request, of a copy of the Preliminary Official Statement.
(b) The Preliminary Official Statement has been prepared for use by the
Underwriter in connection with the public offering, sale and distribution of the
Certificates. The Issuer hereby represents and warrants that the Preliminary Official
Statement was deemed final by the Issuer as of its date, except for the omission of such
information which is dependent upon the final pricing of the Certificates for completion,
all as permitted to be excluded by Section (bxl) of the Rule.
(c) The Issuer hereby authorizes the Official Statement and the information
therein contained to be used by the Underwriter in connection with the public offering
and the sale of the Certificates. The Issuer consents to the use by the Underwriter prior to
the date hereof of the Preliminary Official Statement in connection with the public
offering of the Certificates. The Issuer shall provide, or cause to be provided, to the
Underwriter as soon as practicable after the date of the Issuer's acceptance of this
Agreement (but in any event, not later than within seven (7) business days after the
Issuer's acceptance of this Agreement and in sufficient time to accompany any
confirmation that requests payment from any customer) copies of the Official Statement
which is complete as of the date of its delivery to the Underwriter in such quantity as the
Underwriter shall reasonably request in order for the Underwriter to comply with Section
(b)(4) of the Rule and the rules of the Municipal Securities Rulemaking Board.
(d) If, after the date of this Agreement to and including the date the
Underwriter is no longer required to provide an Official Statement to potential customers
who request the same pursuant to the Rule (the earlier of (i) ninety (90) days from the
"end of the underwriting period" (as defined in the Rule) and (ii) the time when the
Official Statement is available to any person from a nationally recognized municipal
securities information repository, but in no case less than twenty-five (25) days after the
"end of the underwriting period" for the Certificates}, the Issuer becomes awaze of any
fact or event which might or would cause the Official Statement, as then supplemented or
amended, to contain any untrue statement of a material fact or to omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading, or if it is necessary to amend or supplement the Official Statement to comply
with law, the Issuer will notify the Underwriter (and for the purposes of this clause
provide the Underwriter with such information as it may from time to time reasonably
HOU:2819384.3
--125
request), and will forthwith prepare and furnish, at the Issuer's own expense, a reasonable
number of copies of either an amendment or a supplement to the Official Statement so
that the statements in the Official Statement as so amended and supplemented will not
contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or so that the
Official Statement will comply with law; provided, however, that for all purposes of this
Agreement and any certificate delivered by the Issuer in accordance herewith, the Issuer
makes no representations with respect to the descriptions in the Preliminary Official
Statement or the Official Statement of The Depository Trust Company, New York, New
York ("DTC"), or its book-entry-only system, or the information provided by the Bond
Insurer (hereinafter defined) under the caption therein entitled "BOND INSURANCE."
If such notification shall be subsequent to the Closing, the Issuer shall famish such
certificates and other documents as the Underwriter may reasonably deem necessary to
evidence the truth and accuracy of such supplement or amendment to the Official
Statement.
(e) The Underwriter hereby agrees to timely file the Official Statement with a
nationally recognized municipal securities information repository. Unless otherwise
notified in writing by the Underwriter, the Issuer can assume that the "end of the
underwriting period" for purposes of the Rule is the date of the Closing.
4. Representations, Warranties and Covenants of the Issuer. The Issuer hereby
represents and warrants to and covenants with the Underwriter that:
(a) The Issuer is a home rule city duly created and existing under the laws of
the State of Texas (the "State"), including specifically Article XI, Section 5 of the State
Constitution, and has full legal right, power and authority, and at the date of the Closing
will have full legal right, power and authority under the laws of the State, including
particularly Subchapter C of Chapter 271, Texas Local Government Code, as amended,
and Chapter 1502, Texas Government Code, as amended (collectively, the "Acts"), and
its home rule charter (the "Charter") (1) to enter into, execute and deliver this
Agreement, the Ordinance and the Continuing Disclosure Undertaking (as defined in
Section 6(i)(3) hereof), and all documents required hereunder and thereunder to be
executed and delivered by the Issuer (this Agreement and the Ordinance {including the
Continuing Disclosure Undertaking) aze hereinafter referred to as the "Issuer
Documents"), {2) to sell, issue and deliver the Certificates to the Underwriter as provided
herein, and (3) to carry out and consummate the transactions described in the Issuer
Documents and the Official Statement and the Issuer has complied, and will at the
Closing be in compliance in all respects, with the terms of the Acts, the Charter and the
Issuer Documents as they pertain to such transactions;
(b) By all necessary official action of the Issuer prior to or concurrently with
the acceptance hereof, the Issuer has duly authorized all necessary action to be taken by it
for (1) the adoption of the Ordinance and the issuance and sale of the Certificates, (2) the
approval, execution and delivery of, and the performance by the Issuer of the obligations
on its part, contained in the Certificates and the Issuer Documents and (3) the
4
HOU:2819384.3
126 -- - -------- - - __
consummation by it of all other transactions described in the Official Statement and the
Issuer Documents and any and all such other agreements and documents as may be
required to be executed, delivered and/or received by the Issuer in order to carry out, give
effect to, and consummate the transactions described herein and in the Official Statement;
(c) The Issuer Documents constitute legal, valid and binding obligations of
the Issuer, enforceable in accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws and principles of equity
relating to or affecting the enforcement of creditors' rights; the Certificates, when issued,
delivered and paid for, in accordance with the Ordinance and this Agreement, will
constitute legal, valid and binding obligations of the Issuer entitled to the benefits of the
Ordinance and enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws and principles of equity
relating to or affecting the enforcement of creditors' rights;
(d) On the date hereof, the Issuer is not, and on the date of Closing, the Issuer
will not be, in breach of or default in any material respect relating to the issuance of the
Certificates under any applicable constitutional provision, law or administrative
regulation of the State or the United States or any applicable judgment or decree or any
loan agreement, indenture, bond, note, resolution, agreement or other instrument to which
the Issuer is a party or to which the Issuer is or any of its property or assets are otherwise
subject, and, to the knowledge of the Issuer, no event has occurred and is continuing
which constitutes or with the passage of time or the giving of notice, or both, would
constitute such a default or event of default by the Issuer under any of the foregoing; and
the execution and delivery of the Certificates and the Issuer Documents and the adoption
of the Ordinance and compliance with the provisions on the Issuer's part contained
therein, will not conflict with or constitute a material breach of or default in any material
respect under any constitutional provision, administrative regulation, judgment, decree,
loan agreement, indenture, bond, note, resolution, agreement or other instrument to which
the Issuer is a party or to which the Issuer is, or to which any of its property or assets are,
otherwise subject, nor will any such execution, delivery, adoption or compliance result in
the creation or imposition of any lien, chazge or other security interest or encumbrance of
any nature whatsoever upon any of the property or assets of the Issuer to be pledged to
secure the Certificates, or under the terms of any such law, regulation or instrument,
except as provided by the Certificates and the Ordinance;
(e} All authorizations, approvals, licenses, permits, consents and orders of any
governmental authority, legislative body, board, agency or commission having
jurisdiction of the matters which are required for the due authorization of, which would
constitute a condition precedent to, or the absence of which would materially adversely
affect the due performance by the Issuer of its obligations under the Issuer Documents
and the Certificates have been duly obtained or will be obtained prior to Closing, except
for such approvals, consents and orders as may be required under the Blue Sky or
securities laws of any jurisdiction in connection with the offering and sale of the
Certificates;
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(f) The Certificates and the Ordinance conform to the descriptions thereof
contained in the Official Statement under the captions "THE CERTIFICATES AND
BONDS"; the proceeds of the sale of the Certificates will be applied generally as
described in the Official Statement under the caption "PLAN OF FINANCING -Sources
and Uses of Proceeds"; and the Continuing Disclosure Undertaking conform to the
descriptions thereof contained in the Official Statement under the caption
"CONTINUING DISCLOSURE OF INFORMATION";
(g) Except as otherwise provided in the Official Statement under the caption
"CONTINUING DISCLOSURE OF INFORMATION - Compliance with Prior
Undertakings", during the last five (5) years the Issuer has complied in all material
respects with its previous Continuing Disclosure Undertakings made by it in accordance
with the Rule;
(h) Except to the extent described in the Official Statement, there is no
litigation, action, suit, proceeding, inquiry or investigation, at law or in equity, before or
by any court, government agency, public board or body, pending or, to the best
knowledge of the Issuer, threatened against the Issuer, affecting the existence of the
Issuer or the titles of its officers to their respective offices, or affecting or seeking to
prohibit, restrain or enjoin the sale, issuance or delivery of the Certificates or the
collection of taxes or revenues pledged to the payment of principal of and interest on the
Certificates pursuant to the Ordinance or in any way contesting or affecting the validity
or enforceability of the Certificates or the Issuer Documents, or contesting the exclusion
from gross income of interest on the Certificates for federal income tax purposes, or
contesting in any way the completeness or accuracy of the Preliminary Official Statement
or the Official Statement or any supplement or amendment thereto, or contesting the
powers of the Issuer or any authority for the issuance of the Certificates, the adoption of
the Ordinance or the execution and delivery of the Issuer Documents, nor, to the best
knowledge of the Issuer, is there any basis therefor, wherein an unfavorable decision,
ruling or finding would materially adversely affect the validity or enforceability of the
Certificates or the Issuer Documents;
(i) As of the date thereof, the Preliminary Official Statement did not contain
any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(j) At the time of the Issuer's acceptance hereof the Official Statement does
not, and as of the date of Closing the Official Statement will not, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading;
(k) If the Official Statement is supplemented or amended pursuant to
paragraph (d) of Section 3 of this Agreement, at the time of each supplement or
amendment thereto and (unless subsequently again supplemented or amended pursuant to
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such paragraph) at all times subsequent thereto during the period up to and including
twenty-five (25) days subsequent to the "end of the underwriting period," the Issuer
covenants to take such action as may be necessary so that the Official Statement as so
supplemented or amended will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which made, not misleading;
(1) The Issuer will apply, or cause to be applied, the proceeds from the sale of
Certificates as provided in and subject. to all of the terms and provisions of the Ordinance
and will not take or omit to take any action which action or omission will adversely affect
the exclusion from gross income for federal income tax purposes of the interest on the
Certificates;
(m) The Issuer will furnish such information and execute such instruments and
take such action in cooperation with the Underwriter as the Underwriter may reasonably
request, at no expense to the Issuer, (1) to (i) qualify the Certificates for offer and sale
under the Blue Sky or other securities laws and regulations of such states and other
jurisdictions in the United States as the Underwriter may designate and (ii) determine the
eligibility of the Certificates for investment under the laws of such states and other
jurisdictions and (2) to continue such qualifications in effect so long as required for the
initial distribution of the Certificates by the Underwriter (provided, however that the
Issuer will not be required to qualify as a foreign corporation or to file any general or
special consents to service of process under the laws of any jurisdiction) and will advise
the Underwriter immediately of receipt by the Issuer of any written notification with
respect to the suspension of the qualification of the Certificates for sale in any jurisdiction
or the initiation or threat of any proceeding for that purpose;
(n) The financial statements of, and other financial information regarding, the
Issuer in the Official Statement fairly present the financial position, results of operations
and condition of the Issuer as of the dates and for the periods therein set forth, and there
has been no adverse change of a material nature in such financial position, results of
operations or condition, financial or otherwise, of the Issuer since the dates of such
statements and information;
(o) The Issuer is not a party to any litigation or other proceeding pending or,
to its knowledge, threatened which, if decided adversely to the Issuer, would have a
materially adverse effect on the financial condition of the Issuer;
(p) Prior to the Closing, and except in the ordinary course of business, the
Issuer will not offer or issue any bonds, notes or other obligations for borrowed money or
take action to incur any material liabilities, direct or contingent, payable from or secured
by any of the taxes, revenues or assets which will secure the Certificates without the prior
written approval of the Underwriter, such approval not to be unreasonably withheld;
(q) Any certificate, signed by any official of the Issuer authorized to do so in
connection with the transactions described in this Agreement, shall be deemed a
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representation and warranty by the Issuer to the Underwriter as to the statements made
therein; and
(r) The Issuer covenants that between the date hereof and the Closing it will
take no actions which will cause the representations and warranties made in this Section
to be untrue as of the Closing.
By delivering an executed copy of the Official Statement (or a conformed copy thereof)
to the Underwriter, the Issuer shall be deemed to have reaffirmed, with respect to such Official
Statement, the representations, warranties and covenants set forth above with respect to the
Preliminary Official Statement.
5. Closing.
(a) At 10:00 a.m. Dallas, Texas, time, on August 12, 2008, or at such other
time and date as shall have been mutually agreed upon by the Issuer and the Underwriter
(the "Closing"), the Issuer will, subject to the terms and conditions hereof, deliver the
Certificates to the Underwriter duly executed and authenticated, together with the other
documents hereinafter mentioned, and the Underwriter will, subject to the terms and
conditions hereof, accept such delivery and pay the purchase price of the Certificates as
set forth in Section 1 of this Agreement in immediately available funds by wire transfer
to the account of the Issuer as indicated by The Bank of New York Trust Company,
National Association, Dallas, Texas (the "Registrar"). Payment for the Certificates as
aforesaid shall be made at the offices of the Registrar or such other place as shall have
been mutually agreed upon by the Issuer and the Underwriter.
{b) Delivery of the Certificates in definitive form shall be made through DTC,
utilizing the book-entry only form of issuance, and the Issuer, if it has not done so
previously, agrees to enter into such agreement, including a "Letter of Representations,"
as may be required to allow for the use of such book-entry only system. The definitive
Certificates shall be delivered in fully registered form bearing CUSIP numbers without
coupons with one certificate for each maturity of Certificates, registered in the name of
Cede & Co. and shall be made available at the offices of DTC (or, if the Certificates are
to be held in safekeeping for DTC by the Registrar pursuant to DTC's FAST system, at
the office of the Registrar) to the Underwriter at least one business day before the Closing
for purposes of inspection.
6. Closing Conditions. The Underwriter has entered into this Agreement in reliance
upon the representations, warranties and agreements of the Issuer contained herein, and in
reliance upon the representations, warranties and agreements to be contained in the documents
and instruments to be delivered at the Closing and upon the performance by the Issuer of its
obligations hereunder, both as of the date hereof and as of the date of the Closing. Accordingly,
the Underwriter's obligations under this Agreement to purchase, to accept delivery of and to pay
for the Certificates shall be conditioned upon the performance by the Issuer of its obligations to
be performed hereunder and under such documents and instruments at or prior to the Closing,
and shall also be subject to the following additional conditions, including the delivery by the
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Issuer of such documents as aze enumerated herein, in form and substance reasonably
satisfactory to the Underwriter:
(a) The representations and warranties of the Issuer contained herein shall be
true, complete and correct in all material respects on the date hereof and on and as of the
date of the Closing, as if made on the date of the Closing;
(b) The Issuer shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by it prior to or
at the Closing;
(c) At the time of the Closing, {1) the Issuer Documents and the Certificates
shall be in full force and effect in the form heretofore approved by the Underwriter and
shall not have been amended, modified or supplemented, and the Official Statement shall
not have been supplemented or amended, except in any such case as may have been
agreed to by the Underwriter; (2) the net proceeds of the sale of the Certificates and any
funds to be provided by the Issuer shall be deposited and applied as described in the
Official Statement and in the Ordinance; and (3) all actions of the Issuer required to be
taken by the Issuer shall be performed in order for Bond Counsel and counsel to the
Underwriter to deliver their respective opinions referred to hereafter;
(d) At the time of the Closing, all official action of the Issuer relating to the
Certificates and the Issuer Documents shall be in full force and effect and shall not have
been amended, modified or supplemented, except as may have been agreed to by the
Underwriter;
(e) At or prior to the Closing, the Ordinance shall have been duly executed
and delivered by the Issuer and the Issuer shall have duly executed and delivered and the
Registrar shall have duly authenticated the Certificates;
(f) At or prior to the Closing, the municipal bond insurance policy (the
"Municipal Bond Insurance Policy") issued by Financial Security Assurance Inc. (the
"Bond Insurer") shall have been duly executed, issued and delivered by the Bond Insurer;
(g) At the time of the Closing, there shall not have occurred any change or
any development involving a prospective change in the condition, financial or otherwise,
or in the revenues or operations of the Issuer, from that set forth in the Official Statement
that in the reasonable judgment of the Underwriter, is material and adverse and that
makes it impracticable to market the Certificates on the terms and in the manner
described in the Official Statement;
(h) The Issuer shall not have failed to pay principal or interest when due on
any of its outstanding obligations for borrowed money;
(i) All steps to be taken and all instruments and other documents to be
executed, and all other legal matters in connection with the transactions described in this
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Agreement shall be reasonably satisfactory in legal form and effect to the Underwriter,
Bond Counsel and to counsel for the Underwriter; and
(j) At or prior to the Closing, the Underwriter shall have received one copy of
each of the following documents:
(1) The Official Statement, and each supplement or amendment
thereto, if any, as may have been agreed to by the Underwriter;
(2) A copy of the Ordinance, certified by the City Secretary as having
been duly adopted and in full force and effect, with such supplements or
amendments as may have been agreed to by the Underwriter;
(3) The undertaking of the Issuer set forth in the Ordinance (the
"Continuing Disclosure Undertaking") which satisfy the requirements of Section
(b)(5)(i) of the Rule;
(4) The approving opinion of Fulbright & Jaworski L.L.P., Dallas,
Texas ("Bond Counsel"), with respect to the Certificates, in substantially the form
attached to the Official Statement;
(5) A supplemental opinion of Bond Counsel addressed to the Issuer
and the Underwriter substantially to the effect that:
(A) the Ordinance has been duly adopted and is in full force
and effect;
(B) the Certificates aze exempt securities that do not require
registration under the Securities Act of 1933, as amended (the "1933
Act"), and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act "), and it is not necessary, in connection with the offering
and sale of the Certificates, to register the Certificates under the 1933 Act
or to qualify the Ordinance under the Trust Indenture Act; and
(C) the statements and information contained in the Official
Statement under the captions "PLAN OF FINANCING" (exclusive of the
subcaption "Sources and Uses of Proceeds"), "THE CERTIFICATES
AND BONDS" (exclusive of the subcaptions "Book-Entry-Only System"
and "Remedies"), "TAX MATTERS" and "CONTINUING
DISCLOSURE OF INFORMATION" (exclusive of the subcaption
"Compliance with Prior Undertakings") and the subcaptions "-
Registration and Qualification of Obligations for Sale," "- Legal
Opinions" (except for the last sentence of the first paragraph thereof} and
"- Legal Investments and Eligibility to Secure Public Funds in Texas"
under the caption "OTHER INFORMATION" insofaz as they relate to the
Certifictes and the provisions of the Ordinance or matters of law,
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accurately and fairly describe the Certificates and the provisions of the
Ordinance and are correct as to matters of law.
(6) An opinion, dated the date of the Closing and addressed to the
Underwriter, of counsel to the Underwriter, to the effect that:
(A) the Certificates are exempt securities under the 1933 Act
and the Trust Indenture Act and it is not necessary, in connection with the
offering and sale of the Certificates, to register the Certificates under the
1933 Act and the Ordinance need not be qualified under the Trust
Indenture Act; and
(B) based upon their participation in the preparation of the
Official Statement as counsel for the Underwriter and their participation at
conferences at which the Official Statement was discussed, but without
having undertaken to determine independently the accuracy, completeness
or fairness of the statements contained in the Official Statement, such
counsel has no reason to believe that the Official Statement contains any
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (except for any financial,
forecast, technical and statistical statements and data included in the
Official Statement and the information regazding DTC and its book-entry-
only system and the information regarding the Bond Insurer, in each case
as to which no view need be expressed);
(7) A certificate, dated the date of the Closing, of an appropriate
official of the Issuer to the effect that (i) the representations and warranties of the
Issuer contained herein are true and correct in all material respects on and as of
the date of the Closing as if made on the date of the Closing; (ii) except to the
extent disclosed in the Official Statement, no litigation or proceeding or tax
challenge against the Issuer is pending or, to the best of his or her knowledge,
threatened in any court or administrative body nor is there a basis for litigation
which would (a) contest the right of the council members, officers or officials of
the Issuer to hold and exercise their respective positions, (b) contest the due
organization and valid existence of the Issuer, (c) contest the validity, due
authorization and execution of the Certificates or the Issuer Documents or (d)
seek to prohibit, restrain or enjoin the Issuer from functioning and collecting taxes
or revenues, including payments on the Certificates, pursuant to the Ordinance, or
the sale, issuance or delivery of the Certificates or the levy or collection of the
taxes or revenues pledged or to be pledged to pay the principal of and interest on
the Certificates, or the pledge thereof; (iii) all official action of the Issuer relating
to the Official Statement, the Certificates and the Issuer Documents has been duly
taken by the Issuer, is in full force and effect and has not been modified,
amended, supplemented or repealed; (iv) to the best of his or her knowledge, no
event affecting the Issuer has occurred since the date of the Official Statement
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which should be disclosed in the Official Statement for the purpose for which it is
to be used or which it is necessary to disclose therein in order to make the
statements and information therein, in light of the circumstances under which
made, not misleading in any respect as of the time of the Closing, and the
information contained in the Official Statement is correct in all material respects
and, as of the date of the Official Statement did not, and as of the date of the
Closing does not, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading; and (v) there has not been any material adverse change in the
financial condition of the Issuer since September 30, 2047, the latest date as of
which audited financial information is available;
(8) A certificate of the Issuer in form and substance satisfactory to
Bond Counsel and counsel to the Underwriter setting forth the facts, estimates and
circumstances in existence on the date of the Closing, which establish that it is not
expected that the proceeds of the Certificates will be used in a manner that would
cause the Certificates to be "arbitrage bonds" within the meaning of Section 148
of the Internal Revenue Code of 198b, as amended (the "Code"), and any
applicable regulations (whether final, temporary or proposed), issued pursuant to
the Code;
(9) The approving opinion of the Attorney General of the State of
Texas and the registration certificate of the Comptroller of Public Accounts of the
State of Texas in respect of the Certificates;
(10) Any other certificates and opinions required by the Ordinance for
the issuance thereunder of the Certificates;
(11) Evidence of ratings assigned to the Certificates of "Aaa" by
Moody's Investors Service, Inc., (in reliance upon the issuance of the Municipal
Bond Insurance Policy), and that such rating is in effect as of the date of the
Closing;
(12) A copy of the Municipal Bond Insurance Policy issued by the
Bond Insurer together with an opinion of counsel to the Bond Insurer in form and
substance satisfactory to the Underwriter;
(13) A certificate of the Bond Insurer with respect to the accuracy of
statements contained in the Official Statement regarding the Municipal Bond
Insurance Policy and the Bond Insurer and the due authorization, execution,
issuance and delivery of the Municipal Bond Insurance Policy; and
(14) Such additional legal opinions, certificates, instruments and other
documents as Bond Counsel, the Underwriter or counsel to the Underwriter may
reasonably request to evidence the truth and accuracy, as of the date hereof and as
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of the date of the Closing, of the Issuer's representations and warranties contained
herein and of the statements and information contained in the Official Statement
and the due performance or satisfaction by the Issuer on or prior to the date of the
Closing of all the respective agreements then to be performed and conditions then
to be satisfied by the Issuer.
If the Issuer shall be unable to satisfy the conditions to the obligations of the Underwriter
to purchase, to accept delivery of and to pay for the Certificates contained in this Agreement, or
if the obligations of the Underwriter to purchase, to accept delivery of and to pay for the
Certificates shall be terminated for any reason permitted by this Agreement, this Agreement shall
terminate and neither the Underwriter nor the Issuer shall be under any further obligation
hereunder, except that the respective obligations of the Issuer and the Underwriter set forth in
Sections 1 (with respect to the good faith deposit check), 4 and 8 hereof shall continue in full
force and effect.
7. Termination. The Underwriter shall have the right to cancel its obligation to
purchase the Certificates if, between the date of this Agreement and the Closing, the market price
or marketability of the Certificates shall be materially adversely affected, in the reasonable
judgment of the Underwriter, by the occurrence of any of the following:
(a) legislation shall be enacted by or introduced in the Congress of the United
States or recommended to the Congress for passage by the President of the United States,
or the Treasury Department of the United States or the Internal Revenue Service or any
member of the Congress of the United States or favorably reported for passage to either
House of the Congress by any committee of such House to which such legislation has
been referred for consideration, a decision by a court of the United States or of the State
or the United States Tax Court shall be rendered, or an order, ruling, regulation (final,
temporary or proposed), press release, statement or other form of notice by or on behalf
of the Treasury Department of the United States, the Internal Revenue Service or other
goven~unental agency shall be made or proposed, the effect of any or all of which would
be to impose, directly or indirectly, federal income taxation upon interest received on
obligations of the general character of the Certificates, or the interest on the Certificates
as described in the Official Statement, or other action or events shall have transpired
which may have the purpose or effect, directly or indirectly, of changing the federal
income tax consequences of any of the transactions described herein;
(b) legislation introduced in or enacted (or resolution passed) by the Congress
or an order, decree or injunction issued by any court of competent jurisdiction, or an
order, ruling, regulation (final, temporary, or proposed), press release or other form of
notice issued or made by or on behalf of the Securities and Exchange Commission, or any
other governmental agency having jurisdiction of the subject matter, to the effect that
obligations of the general character of the Certificates, including any or all underlying
arrangements, aze not exempt from registration under or other requirements of the 1933
Act, or that the Ordinance is not exempt from qualification under or other requirements
of the Trust Indenture Act, or that the issuance, offering or sale of obligations of the
general character of the Certificates, including any or all underlying arrangements, as
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described herein or in the Official Statement or otherwise, is or would be in violation of
the federal securities laws as amended and then in effect;
(c) any state blue sky or securities commission or other governmental agency
or body (in any state where more than 15% of the Certificates have been offered and
sold) shall have withheld registration, exemption or clearance of the offering of the
Certificates as described herein, or issued a stop order or similar ruling relating thereto;
(d) a general suspension of trading in securities on the New York Stock
Exchange or the American Stock Exchange, the establishment of minimum prices on
either such exchange, the establishment of material restrictions (not in force as of the date
hereof) upon trading securities generally by any governmental authority or any national
securities exchange, or a general banking moratorium declared by federal, State of New
York, or State officials authorized to do so;
(e) the New York Stock Exchange or other national securities exchange or
any governmental authority shall impose, as to the Certificates or as to obligations of the
general character of the Certificates, any material restrictions not now in force, or
increase materially those now in force, with respect to the extension of credit by, or the
charge to the net capital requirements of, the Underwriter which change shall occur
subsequent to the date hereof and shall not be due to the malfeasance, misfeasance or
nonfeasance of the Underwriter;
(f) any amendment to the federal or state Constitution or action by any federal
or state court, legislative body, regulatory body or other authority materially adversely
affecting the tax status of the Issuer, its property, income, securities (or interest thereon),
or the validity or enforceability of the assessments or the levies of taxes to pay principal
of and interest on the Certificates;
(g) any event occurring, or information becoming known which, in the
reasonable judgment of the Underwriter, makes untrue in any material respect any
statement or information contained in the Official Statement, or has the effect that the
Official Statement contains any untrue statement of material fact or omits to state a
material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(h) there shall have occurred since the date of this Agreement any materially
adverse change in the affairs or financial condition of the Issuer;
(i) the United States shall have either become engaged in hostilities that did
not exist prior to the date hereof or issued a declaration of war or a national emergency,
or there shall have occurred a new material outbreak or escalation of hostilities or a
national or international calamity or crisis, financial or otherwise, the effect of such
outbreak, calamity or crisis on the financial markets of the United States being such as, in
the reasonable opinion of the Underwriter, would materially and adversely affect the
ability of the Underwriter to market the Certificates;
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(j) any fact or event shall exist or have existed that, in the Underwriter's
reasonable judgment, requires or has required an amendment of or supplement to the
Official Statement;
(k) there shall have occurred any downgrading or published negative credit
watch or similaz published information from a rating agency that at the date of this
Agreement has published a rating (or has been asked to furnish a rating on the
Certificates) on any of the Issuer's debt obligations that aze secured in a like manner as
the Certificates, which action reflects a change or possible change, in the ratings accorded
any such obligations of the Issuer (including any rating to be accorded the Certificates);
and
(1) the purchase of and payment for the Certificates by the Underwriter, or the
resale of the Certificates by the Underwriter, on the terms and conditions herein provided
shall be prohibited by any applicable law, governmental authority, board, agency or
commission, which prohibition shall occur subsequent to the date hereof and shall not be
due to the malfeasance, misfeasance or nonfeasance of the Underwriter.
With respect to the condition described in subparagraph (1) above, the Underwriter is not
aware of any current, pending or proposed law or government inquiry or investigation as of the
date of execution of this Agreement which would permit the Underwriter to invoke its
termination rights thereunder
8. Expenses.
(a) The Underwriter shall be under no obligation to pay, and the Issuer shall
pay, any expenses incident to the performance of the Issuer's obligations hereunder,
including, but not limited to (i) the cost of preparation and printing of the Certificates; (ii}
the fees and disbursements of Bond Counsel and the Issuer's Financial Advisor; (iii) the
fees and disbursements of any other engineers, accountants, and other experts,
consultants or advisers retained by the Issuer; (iv) the fees for bond ratings; (v) the
municipal bond insurance premium, if any; (vi) the costs of preparing, printing and
mailing the Preliminary Official Statement and the Official Statement; (vii) the fees and
expenses of the Registrar; (viii) advertising expenses (except any advertising expenses of
the Underwriter as set forth below); (ix) the out-of-pocket, miscellaneous and closing
expenses, including the cost of travel, of the officers and members of the Issuer; (x) the
Attorney General's review fee; and (xi) any other expenses mutually agreed to by the
Issuer and the Underwriter to be reasonably considered expenses of the Issuer which are
incident to the transactions described herein.
(b) The Underwriter shall pay (i) the cost of preparation and printing of this
Agreement, the Blue Sky Survey and Legal Investment Memorandum, if any; (ii) all
advertising expenses in connection with the public offering of the Certificates; and (iii)
all other expenses incurred by them in connection with the public offering of the
Certificates, including the fees and disbursements of counsel retained by the Underwriter.
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9. Notices. Any notice or other communication to be given to the Issuer under this
Agreement may be given by delivering the same in writing to City of Plainview, Texas, 901
Broadway, Plainview, Texas 79072, Attention: City Manager, and any notice or other
communication to be given to the Underwriter under this Agreement may be given by delivering
the same in writing to Southwest Securities, Inc., 2 Allen Center, 1200 Smith Street, Suite 1600,
Houston, Texas 77002, Attention: Lance Johnson.
10. Parties in Interest. This Agreement as heretofore specified shall constitute the
entire agreement between us and is made solely for the benefit of the Issuer and the Underwriter
(including successors or assigns of the Underwriter) and no other person shall acquire or have
any right hereunder or by virtue hereof. This Agreement may not be assigned by the Issuer. All
of the Issuer's representations, warranties and agreements contained in this Agreement shall
remain operative and in full force and effect, regardless of (i) any investigations made by or on
behalf of the Underwriter; (ii) delivery of and payment for the Certificates pursuant to this
Agreement; and (iii) any termination of this Agreement.
11. EJyectiveness. This Agreement shall become effective upon the acceptance
hereof by the Issuer and shall be valid and enforceable in accordance with its terms at the time of
such acceptance.
12. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws of the State.
13. Severability. If any provision of this Agreement shall be held or deemed to be or
shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provision or
provisions of any constitution, statute, rule of public policy or any other reason, such
circumstances shall not have the effect of rendering the provision in question invalid, inoperative
or unenforceable in any other case or circumstance, or of rendering any other provision or
provisions of this Agreement invalid, inoperative or unenforceable to any extent whatever.
14. Business Day. For purposes of this Agreement, "business day" means any day on
which the New York Stock Exchange is open for trading.
15. Section Headings. Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings aze not a part
of this Agreement and will not be used in the interpretation of any provisions of this Agreement.
16. Counterparts. This Agreement may be executed in several counterparts each of
which shall be regazded as an original (with the same effect as if the signatures thereto and
hereto were upon the same document} and all of which shall constitute one and the same
document.
17. No Personal Liability. None of the members of the City Council, nor any officer,
agent or employee of the Issuer, shall be charged personally by the Underwriter with any
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138
liability, or be held liable to the Underwriter under any term or provision of this Agreement, or
because of execution or attempted execution, or because of any breach or attempted or alleged
breach, of this Agreement.
[Execution Page Follows.]
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HOU:2819384.3
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If you agree with the foregoing, please sign the enclosed counterpart of this Agreement
and return it to the Underwriter. This Agreement shall become a binding agreement between the
Issuer and the Underwriter when at least the counterpart of this letter shall have been signed by
or on behalf of each of the parties hereto.
SOUTHWEST SECURITIES INC.
By:
Name:
Title:
1
1
ACCEPTED AND AGREED to as of the date hereof:
CITY OF PLAINVIEW, TEXAS ~ -
By:
Name:
Title:
Schedule I -Schedule of Terms
S-1
HOU:2819384.3
140
Schedule I
$1,550,000 Combination Taa and Revenue Certificates of Obligation, Series 2008~'~
Interest Accrues From: July 1, 2008
Maturity
Date Principal Interest Price or
j3~ Amount Rate Yield
2009 $190,000 3.50% 2.25%
2010 205,000 3.50% 2.70%
2011 215,000 3.50% 3.00%
2012 225,000 3.50% 3.15%
2013 230,000 3.50% 3.30%
2014 240,000 3.50% 3.47%
2015 245,000 3.50% 3.62%
' The Certificates are not subject to redemption prior to their scheduled maturity.
HOU:2819384.3
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EXHIBIT C
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION AND OPERATING DATA
The following information is referred to in Section 38 of this Ordinance.
Annual Financial Statements and Operatino Data
The financial information and operating data with respect to the City to be provided
annually in accordance with such Section are as specked (and included in the Appendix or
under the headings of the Official Statement referred to) below:
1. An Annual Audited Financial report, a State Property Tax Report and a Budget.
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.
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1
80225019.2/10807137 (`,-1