HomeMy WebLinkAbout09-3521 ord254
ORDINANCE NO. 09-3521
AN ORDINANCE authorizing the issuance of "CITY OF PLAINVIEW, TEXAS,
GENERAL OBLIGATION REFUNDING BONDS, SERIES 2009";
specifying the terms and features of said bonds; levying a continuing
direct annual ad valorem tax for the payment of said bonds; providing for
the redemption of certain outstanding obligations of the City; and
resolving other matters incident and related to the issuance, sale, payment
and delivery of said bonds, including the approval and execution of a
Paying Agent/Registrar Agreement, a Bond Purchase Agreement and a
Special Escrow Agreement and the approval and distribution of an Official
Statement; and providing an effective date.
WHEREAS, the City Council of the City of Plainview, Texas (the "City") has heretofore
issued, sold, and delivered, and there is currently outstanding obligations totaling in original
principal amount $6,635,000 of the following issue or series (hereinafter referred to as the
"Refunded Obligations"), to wit: City of Plainview, Texas, Tax and Waterworks and Sewer
System Surplus Revenue Certificates of Obligation, Series 2001, dated May I5, 2001, scheduled
to mature on March 1 in each of the years 2011 through 2021; and
WHEREAS, pursuant to the provisions of V.T.C.A., Government Code, Chapter 1207,
the City Council is authorized to issue refunding bonds and deposit the proceeds of sale directly
with the place of payment for the Refunded Obligations, or other authorized depository, and such
deposit, when made in accordance with said statute, shall constitute the making of firm banking
and financial arrangements for the discharge and final payment of the Refunded Obligations; and
WHEREAS, the City Council hereby finds and determines that the Refunded Obligations
should be refunded at this time, and such refunding will result in the City saving approximately
$654,171.17 in debt service payments on such indebtedness and further provide present value
savings of approximately $530,234.83; now, therefore,
BE I1' ORDAINED BY THE CITY COUNCIL OP THE CITY OF PLAINVIEW,
TExas:
SEC"PION l : Authorization -Designation -Principal Amount -Purpose. General.
obligation bonds of the City shall be and are hereby authorized to be issued in the aggregate
principal amount of $6,875,000 to be designated and bear the title "CITY OF PLAINVIEW,
"hEXAS, GENERAL OBLIGATION REFUNDING BONDS, SERIES 2009" (hereinafter
referred to as the '`Bonds"), for the purpose of providing funds for the discharge and final
payment of` certain outstanding obligations of the City (identified in the preamble hereof and
referred to as the "Refunded Obligations") and to pay costs of issuance, in accordance with the
Constitution and laws of the State of Texas, including V.'1'.C.A., Government Code, Chapter
1207, as amended.
SEC'T'ION 2: Fully Registered Obligations -Bond Date -Authorized
Denominations-Stated Maturities-Interest Rates. The Bonds shall be issued as fully registered
obligations only, shall be dated September 15, 2009 (the "Bond Date"), shall be in
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denominations of $5,000 or any integral multiple (within a Stated Maturity) thereof, and shall
become due and payable semiannually on March 1 in each of the years and in principal amounts
(the "Stated Maturities") in accordance with the following schedule:
Year of Principal Interest
Stated Maturity Amount Rate s
2010 $155,000 2.000%
2011 540,000 2.000%
2012 545,000 2.000%
2013 560,000 2.000%
2014 570,000 2.250%
2015 585,000 2.500%
2016 600,000 2.750%
2017 620,000 3.000%
2018 640,000 3.250%
2019 660,000 3.500%
2020 685,000 3.625%
2021 715,000 3.500%
The Bonds shall bear interest on the unpaid principal amounts from the Bond Date at the
rate(s) per annum shown above in this Section (calculated on the basis of a 360-day year of
twelve 30-day months). Interest on the Bonds shall be payable on March 1 and September 1 in
each year, commencing March 1, 2010, until maturity or prior redemption.
SECTION 3: Terms of Payment-Paying A eg, nt/Registrar. The principal of, premium, if
any, and the interest on the Bonds, due and payable by reason of maturity, redemption or
otherwise, shall be payable only to the registered owners or holders of the Bonds (hereinafter
called the "Holders") appearing on the registration and transfer books maintained by the Paying
Agent/Registrar and the payment thereof shall be in any coin or currency of the United States of
America, which at the time of payment is legal tender for the payment of public and private
debts, and shall be without exchange or collection charges to the Holders.
The selection and appointment of 'The Bank of New York Mellon Trust Company, N.A.,
Dallas, Texas to serve as Paying Agent/Registrar for the Bonds is hereby approved and
confirmed. Books and records relating to the registration, payment, transfer and exchange of the
Bonds (the "Security Register") shall at all times be kept and maintained on behalf of the City by
the Paying Agent/Registrar, asprovided herein and in accordance with the terms and provisions
of a "Paying Agent/ Registrar Agreement", substantially in the form attached hereto as Exhibit
A, and such reasonable rules and regulations as the Paying Agent/Registrar and the City may
prescribe. The Mayor and City Secretary are authorized to execute and deliver such Agreement
in connection with the delivery of the Bonds. The City covenants to maintain and provide a
Paying Agent/Registrar at all times until the Bonds are paid and discharged, and any successor
Paying Agent/Registrar shall be a commercial bank, trust company, financial institution or other
entity qualified and authorized to serve in such capacity and perform the duties and services of
Paying Agent/Registrar. Upon any change in the Paying Agent/Registrar for the Bonds, the City
agrees to promptly cause a written notice thereof to be sent to each Holder by United States Mail,
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first class postage prepaid, which notice shall also give the address of the new Paying
Agent/Registrar.
Principal of and premium, if any, on the Bonds shall be payable at the Stated Maturities
or the redemption thereof, only upon presentation and surrender of the Bonds to the Paying
Agent/Registrar at its designated offices initially in Dallas, Texas or, with respect to a successor
Paying Agent/Registrar, at the designated offices of such successor (the "Designated
Payment/Transfer Office"). Interest on the Bonds shall be paid to the Holders whose name
appears 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 Bonds 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 AgentlRegistrar 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 day next preceding the date of mailing of such notice.
SECTION 4: Redemption.
(a) Optional Redemption. The Bonds having Stated Maturities on and after March 1,
2020, shall be subject to redemption prior to maturity, at the option of the City, in whole or in
part in principal amounts of $5,000 or any integral multiple thereof (and if within a Stated
Maturity by lot by the Paying Agent/Registrar), on March 1, 2019 or on any date thereafter at the
redemption price of par plus accrued interest to the date of redemption.
(b) Exercise of Redemption Option. At least forty-five (45) days prior to a
redemption date for the Bonds (unless a shorter notification period shall be satisfactory to the
Paying Agent/Registrar), the City shall notify the Paying Agent/Registrar of the decision to
redeem Bonds, the principal amount of each Stated Maturity to be redeemed, and the date of
redemption therefor. The decision of the City to exercise the right to redeem Bonds shall be
entered in the minutes of the governing body of the City.
(c) Selection of Bonds for Redemption. If less than all Outstanding Bonds of the
same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar shall
treat such Bonds as representing the number of Bonds Outstanding which is obtained by dividing
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the principal amount of such Bonds by $5,000 and shall select the Bonds, or principal amount
thereof, to be redeemed within such Stated Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date
for the Bonds, a notice of redemption shall be sent by United States Mail, first class postage
prepaid, in the name of the City and at the City's expense, to each Holder of a Bond to be
redeemed in whole or in part at the address of the Holder appearing on the Security Register at
the close of business on the business day next preceding the date of mailing such notice, and any
notice of redemption so mailed shall be conclusively presumed to have been duly given
irrespective of whether received by the Holder.
All notices of redemption shall (i) specify the date of redemption for the Bonds, (ii)
identify the Bonds to be redeemed and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price, (iv) state
that the Bonds, or the portion of the principal amount thereof to be redeemed, shall become due
and payable on the redemption date specified, and the interest thereon, or on the portion of the
principal amount thereof to be redeemed, shall cease to accrue from and after the redemption
date, and (v) specify that payment of the redemption price for the Bonds, or the principal amount
thereof to be redeemed, shall be made at the Designated Payment/Transfer Office of the Paying
Agent/Registrar only upon presentation and surrender thereof by the Holder. If a Bond is subject
by its terms to prior redemption, and has been called for redemption, and notice of redemption
thereof has been duly given as hereinabove provided, such Bond (or the principal amount thereof
to be redeemed) shall become due and payable and interest thereon shall cease to accrue from
and after the redemption date therefor; provided moneys sufficient for the payment of such Bond
(or of the principal amount thereof to be redeemed) at the then applicable redemption price are
held for the purpose of such payment by the Paying Agent/Registrar.
(e) Conditional Notice of Redemption. With respect to any optional redemption of
the Bonds, unless moneys sufficient to pay the principal of and premium, if any, and interest on
the Bonds to be redeemed shall have been received by the Paying Agent/Registrar prior to the
giving of such notice of redemption, such notice may state that said redemption is conditional
upon the receipt of such moneys by the Paying Agent/Registrar on or prior to the date fixed for
such redemption, or upon the satisfaction of any prerequisites set forth in such notice of
redemption; and, if sufficient moneys are not received, such notice shall be of no force and
effect, the City shall not redeem such Bonds and the Paying Agent/Registrar shall give notice, in
the manner in which the notice of redemption was given, to the effect that the Bonds have not
been redeemed.
SECTION 5: Registration -Transfer -Exchange of Bonds-Predecessor Bonds. The
Paying Agent/Registrar shall obtain, record, and maintain in the Security Register the name and
address of each and every owner of the Bonds issued under and pursuant to the provisions of this
Ordinance, or if appropriate, the nominee thereof. Any Bond may be transferred. or exchanged
for Bonds of other authorized denominations by the Holder, in person or by his duly authorized
agent, upon surrender of such Bond to the Paying Agent/Registrar for cancellation, accompanied
by a written instrument of transfer or request for exchange duly executed by the Holder or by his
duly authorized agent, in form satisfactory to the Paying Agent/Registrar.
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Upon surrender of any Bond (other than the Initial Bond(s) referenced in Section 8
hereof) for transfer at the Designated Payment/Transfer Office of the Paying Agent/Registrar, the
Paying Agent/Registrar shall register and deliver, in the name of the designated transferee or
transferees, one or more new Bonds of authorized denominations and having the same Stated
Maturity and of a like aggregate principal amount as the Bond or Bonds surrendered for transfer.
At the option of the Holder, Bonds (other than the Initial Bond(s) referenced in Section 8
hereof) may be exchanged for other Bonds of authorized denominations and having the same
Stated Maturity, bearing the same rate of interest and of like aggregate principal amount as the
Bonds surrendered for exchange, upon surrender of the Bonds to be exchanged at the Designated
Payment/Transfer Office of the Paying Agent/Registrar. Whenever any Bonds are surrendered
for exchange, the Paying Agent/Registrar shall register and deliver new Bonds to the Holder
requesting the exchange.
All Bonds issued in any transfer or exchange of Bonds shall be delivered to the Holders
at the Designated Payment/Transfer Office of the Paying Agent/Registrar or sent by United
States Mail, first class, postage prepaid to the Holders, and, upon the registration and delivery
thereof, the same shall be the valid obligations of the City, evidencing the same obligation to
pay, and entitled to the same benefits under this Ordinance, as the Bonds surrendered in such
transfer or exchange.
All transfers or exchanges of Bonds pursuant to this Section shall be made without
expense or service charge to the Holder, except as otherwise herein provided, and except that the
Paying Agent/Registrar shall require payment by the Holder requesting such transfer or exchange
of any tax or other governmental charges required to be paid with respect to such transfer or
exchange.
Bonds cancelled by reason of an exchange or transfer pursuant to the provisions hereof
are hereby defined to be "Predecessor Bonds," evidencing all or a portion, as the case may be, of
the same ,obligation to pay evidenced by the new Bond or Bonds registered and delivered in the
exchange or transfer therefor. Additionally, the term "Predecessor Bonds" shall include any
mutilated, lost, destroyed, or stolen Bond for which a replacement Bond has been issued,
registered, and delivered in lieu thereof pursuant to the provisions of Section 11 hereof and such
new replacement Bond shall be deemed to evidence the same obligation as the mutilated, lost,
destroyed, or stolen Bond.
Neither the City nor the Paying Agent/Registrar shall be required to issue or transfer to an
assignee of a Holder any Bond called for redemption, in whole or in part, within 45 days of the
date fixed for the redemption of such Bond; provided, however, such limitation on transferability
shall not be applicable to an exchange by the Holder of the unredeemed balance of a Bond called
for redemption in part.
SECTION 6: Book-Entry Ong Transfers and Transactions. Notwithstanding the
provisions contained in Sections 3, 4 and 5 hereof relating to the payment, and transfer/exchange
of the Bonds, 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
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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 Bonds shall be
deposited with DTC who shall hold said Bonds for its participants (the "DTC Participants").
While the Bonds are held by DTC under the Depository Agreement, the Holder of the Bonds 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 Bond
(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 Bonds
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 Bonds, the City covenants and agrees with the Holders of the Bonds
to cause Bonds to be printed in definitive form and provide for the Bond certificates to be issued
and delivered to DTC Participants and Beneficial Owners, as the case may be. Thereafter, the
Bonds in definitive form shall be assigned, transferred and exchanged on the Security Register
maintained by the Paying Agent/Registrar and payment of such Bonds shall be made in
accordance with the provisions of Sections 3, 4 and 5 hereof.
SECTION 7: Execution -Registration. The Bonds shall be executed on behalf of the
City by the Mayor under its seal reproduced or impressed thereon and countersigned by the City
Secretary. The signature of said officers on the Bonds may be manual or facsimile. Bonds
bearing the manual or facsimile signatures of individuals who are or were the proper officers of
the City on the Bond Date shall be deemed to be duly executed on behalf of the City,
notwithstanding that such individuals or either of them shall cease to hold such offices at the
time of delivery of the Bonds to the initial purchaser(s) and with respect to Bonds delivered in
subsequent exchanges and transfers, all as authorized and provided in V.T.C.A., Government
Code, Chapter 1201, as amended.
No Bond shall be entitled to any right or benefit under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Bond either a certificate of registration
substantially in the form provided in Section 9(c), manually executed by the Comptroller of
Public Accounts of the State of Texas, or his duly authorized agent, or a certificate of registration
substantially in the form provided in Section 9(d), manually executed by an authorized officer,
employee or representative of the Paying Agent/Registrar, and either such certificate duly signed
upon any Bond shall be conclusive evidence, and the only evidence, that such Bond has been
duly certified, registered, and delivered.
SECTION 8: Initial Bond(s). The Bonds herein authorized shall be initially issued
either (i) as a single fully registered bond in the aggregate principal amount of the Bonds with
principal installments to become due and payable as provided in Section 2 hereof and numbered
T-1, or (ii) as multiple fully registered bonds, being one bond 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 Bond(s)") and, in either case, the Initial Bond(s) shall be
registered in the name of the initial purchaser(s) or the designee thereof. The Initial Bond(s)
shall be the Bonds submitted to the Office of the Attorney General of the State of Texas for
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approval, certified and registered by the Office of the Comptroller of Public Accounts of the
State of Texas and delivered to the initial purchaser(s). Any time after the delivery of the Initial
Bond(s), the Paying AgentlRegistrar, pursuant to written instructions from the initial
purchaser(s), or the designee thereof, shall cancel the Initial Bond(s) delivered hereunder and
exchange therefor definitive Bonds of authorized denominations, Stated Maturities, principal
amounts and bearing applicable interest rates for transfer and 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 Bonds, 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 Bonds, shall be substantially in the
forms set forth in this Section with such appropriate insertions, omissions, substitutions, and
other variations as are permitted or required by this Ordinance and may have such letters,
numbers, or other marks of identification (including 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
Bonds, 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 Bonds as evidenced by their execution. Any portion
of the text of any Bonds may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Bond.
The definitive Bonds and the Initial Bond(s) shall be printed, lithographed, or engraved,
typewritten, photocopied or otherwise reproduced in any other similar manner, all as determined
by the officers executing such Bonds as evidenced by their execution thereof.
(b) Form of Definitive Bond.
REGISTERED
NO.
REGISTERED
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF PLAINVIEW, TEXAS
GENERAL OBLIGATION REFUNDING BOND, SERIES 2009
Bond Date: Interest Rate: Stated Maturity CUSIP NO:
September 15, 2009 March 1, 20
Registered Owner:
Principal Amount:
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The City of Plainview (hereinafter referred to as the "City"), a body corporate and
political subdivision 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 specified above the Principal Amount
hereinabove stated (or so much thereof as shall not have been paid upon prior redemption) and to
pay interest on the unpaid principal amount hereof from the interest payment date next preceding
the "Registration Date" of this Bond appearing below (unless this Bond 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 Bond is prior to the initial interest payment date in which case it
shall bear interest from the Bond Date) at the per annum rate of interest specified above
computed on the basis of a 360 day year of twelve 30 day months; such interest being payable on
March 1 and September 1 in each year, commencing March 1, 2010, until maturity or prior
redemption. Principal of this Bond is payable at its Stated Maturity or redemption to the
registered owner hereof, upon presentation and surrender, at the Designated Payment/Transfer
Office of the Paying Agent/Registrar executing the registration certificate appearing hereon, or
its successor; provided, however, while this Bond is registered to Cede & Co., the payment of
principal upon a partial redemption of the principal amount hereof may be accomplished without
presentation and surrender of this Bond. Interest is payable to the registered owner of this Bond
(or one or more Predecessor Bonds, as defined in the Ordinance hereinafter referenced) whose
name appears on the "Security Register" maintained bey the Paying AgentlRegistrar 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 Bonds 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, if any, and interest on this Bond 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 Bond is one of the series specified in its title issued in the aggregate principal
amount of $6,875,000 (herein referred to as the "Bonds") for the purpose of providing funds for
the discharge and final payment of certain outstanding obligations of the City (identified in the
preamble hereof and referred to as the "Refunded Obligations") and to pay costs of issuance,
under and in strict conformity with the Constitution and laws of the State of Texas and pursuant
to an Ordinance adopted by the City Council of the City (herein referred to as the "Ordinance").
The Bonds maturing on and after March 1, 2020, may be redeemed prior to their Stated
Maturities, at the option of the City, in whole or in part in principal amounts of $5,000 or any
integral multiple thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar),
on March 1, 2019, or on any date thereafter, at the redemption price of par, together with accrued
interest to the date of redemption.
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At least thirty days prior to the date fixed for any redemption of Bonds, the City shall
cause a written notice of such redemption to be sent by United States Mail, first class postage
prepaid, to the registered owners of each Bond to be redeemed at the address shown on the
Security Register and subject to the terms and provisions relating thereto contained in the
Ordinance. If a Bond (or any portion of its principal sum) shall have been duly called for
redemption and notice of such redemption duly given, then upon such redemption date such
Bond (or the portion of its principal sum to be redeemed) shall become due and payable, and
interest thereon shall cease to accrue from and after the redemption date therefor; provided
moneys for the payment of the redemption price and the interest on the principal amount to be
redeemed to the date of redemption are held for the purpose of such payment by the Paying
Agent/Registrar.
In the event a portion of the principal amount of a Bond is to be redeemed and the
registered owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender of
such Bond to the Designated Payment/Transfer Office of the Paying Agent/Registrar, and a new
Bond or Bonds of like maturity and interest rate in any authorized denominations provided by
the Ordinance for the then unredeemed balance of the principal sum thereof will be issued to the
registered owner, without charge. If a Bond is selected for redemption, in whole or in part, the
City and the Paying Agent/Registrar shall not be required to transfer such Bond to an assignee of
the registered owner within 45 days of the redemption date therefor; provided, however, such
limitation on transferability shall not be applicable to an exchange by the registered owner of the
unredeemed balance of a Bond redeemed in part.
With respect to any optional redemption of the Bonds, unless moneys sufficient to pay
the principal of and premium, if any, and interest on the Bonds to be redeemed shall have been
received by the Paying Agent/Registrar prior to the giving of such notice of redemption, such
notice may state that said redemption is conditional upon the receipt of such moneys by the
Paying Agent/Registrar on or prior to the date fixed for such redemption, or upon the satisfaction
of any prerequisites set forth in such notice of redemption; and, if sufficient moneys are not
received, such notice shall be of no force and effect, the City shall not redeem such Bonds and
the Paying Agent/Registrar shall give notice, in the manner in which the notice of redemption
was given, to the effect that the Bonds have not been redeemed.
The Bonds are payable from the proceeds of an ad valorem tax levied, within the
limitations prescribed by law, upon all taxable property in the City. Reference is hereby made to
the Ordinance, a copy of which is on file in the Designated Payment/Transfer Office of the
Paying Agent/Registrar, and to all of the provisions of which the owner or holder of this Bond 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 Bonds; the terms and conditions relating to the
transfer or exchange of this Bond; the conditions upon which the Ordinance may be amended or
supplemented with or without the consent of the Holders; the rights, duties, and obligations of
the City and the Paying Agent/Registrar; the terms and provisions upon which this Bond may be
discharged at or prior to its maturity or redemption, and deemed to be no longer Outstanding
thereunder; and for other terms and provisions contained therein. Capitalized terms used herein
have the meanings assigned in the Ordinance.
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This Bond, 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 Bonds
of the same Stated Maturity, of authorized denominations, bearing the same rate of interest, and
of the same aggregate principal amount will be issued by the Paying AgentlRegistrar 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 Bond as the
owner entitled to payment of principal hereof at its Stated Maturity or its redemption, in whole or
in part, and (iii) on any other date as the owner for all other purposes, and neither the City nor the
Paying Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. 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 Bonds is duly authorized by
law; that all acts, conditions and things required to exist and be done precedent to and in the
issuance of the Bonds to render the same lawful and valid obligations of the City have been
properly done, have happened and have been performed in regular and due time, form and
manner as required by the Constitution and laws of the State of Texas, and the Ordinance; that
the Bonds do not exceed any Constitutional or statutory limitation; and that due provision has
been made for the payment of the principal of and interest on the Bonds by the levy of a tax as
aforestated. In case any provision in this Bond 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 Bond and the Ordinance shall be
construed in accordance with and shall be governed by the laws of the State of Texas.
75822945.2/10909912 1
264
IN WITNESS WHEREOF, the City Council of the City has caused this Bond to be duly
executed under the official seal of the City as of the Bond Date.
CITY OF PLAINVIEW, TEXAS
Mayor
COUNTERSIGNED:
City Secretary
(SEAL)
(c) Form of Re ig'stration Certificate of Comptroller of Public Accounts to appear on
Initial Bond(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE )
COMPTROLLER
OF PUBLIC ACCOUNTS ) REGISTER NO.
THE STATE OF TEXAS )
I I~EREBY CERTIFY that this Bond has been examined, certified as to validity and
approved by the Attorney General of the State of Texas, and duly registered by the Comptroller
of Public Accounts of the State of Texas.
WITNESS my signature and seal of office this
Comptroller of Public Accounts
of the State of Texas
(SEAL)
~ssa29as.z~~o9o~iz 11
265
(d) Form of Certificate of Paying Agent/Registrar to appear on Definitive Bonds
only.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Bond has been duly issued and registered under the provisions of the
within-mentioned Ordinance; the bond or bonds of the above entitled and designated series
originally delivered having been approved by the Attorney General of the State of Texas and
registered by the Comptroller of Public Accounts, as shown by the records of the Paying
Agent/Registrar.
The designated offices of the Paying Agent/Registrar in Dallas, Texas is the "Designated
Payment/Transfer Office" for this Bond.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas,
as Paying AgentlRegistrar
Registration date:
(e) Form of Assi ngmen_t.
By
Authorized Signature
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
Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Bond on the books kept for registration thereof, with full power
of substitution in the premises.
DATED:
NOTICE: The signature on this
assignment must correspond with the
Signature guaranteed: name of the registered owner as it appears
on the face of the within Bond in every
particular.
75822945.2/10909912 12
266
(fj The Initial Bond(s) shall be in the form set forth in para~ranh (b) of_this Section,
except that the form of the single fully registered Initial Bond shall be modified as follows:
REGISTERED REGISTERED
NO. T-1 $6,875,000
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF PLAINVIEW, TEXAS
GENERAL OBLIGATION REFUNDING BOND, SERIES 2009
Bond Date: September 15, 2009
Registered Owner:
Principal Amount: SIX MILLION EIGHT HUNDRED SEVENTY-FIVE THOUSAND 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, the Principal Amount hereinabove stated on March 1 in each of the
years and in principal installments in accordance with the following schedule:
STATED
MATURITY
PRINCIPAL INTEREST
INSTALLMENTS RATE
(Information to be inserted from schedule in Section 2 hereof).
(or so much principal thereof as shall not have been prepaid prior to maturity) and to pay interest
on the unpaid principal installments hereof from the interest payment date next preceding the
"Registration Date" of this Bond appearing below (unless this Bond 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 Bond is prior to the initial interest payment date in which case it shall
bear interest from the Bond Date) at the per annum rates of interest specified above computed on
the basis of a 360 day year of twelve 30 day months; such interest being payable on March 1
and September 1 in each year, commencing March 1, 2010. Principal installments of this Bond
are payable on the Stated Maturity dates or on a prepayment date to the registered owner hereof
by The Bank of New York Mellon Trust Company, N.A., Dallas, Texas (the "Paying
Agent/Registrar"), upon its presentation and surrender, at its designated offices in Dallas, Texas
(the "Designated Payment/Transfer Office"). Interest is payable to the registered owner of this
Bond whose name appears on the "Security Register" maintained by the Paying Agent/Registrar
at the close of business on the "Record Date", which is the 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
AgendRegistrar, 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 Bonds shall be a Saturday, Sunday, a legal
75822945.2!10909912 13
267
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, if any, and interest on this Bond 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: Levy of Taxes. To provide for the payment of the "Debt Service
Requirements" of the Bonds, being (i) the interest on the Bonds and (ii) a sinking fund for their
payment at maturity or redemption or a sinking fund of 2% (whichever amount is the greater),
there is hereby levied, and there shall be annually assessed and collected in due time, form, and
manner, a tax on all taxable property in the City, within the limitations prescribed by law, and
such tax hereby levied on each one hundred dollars' valuation of taxable property in the City for
the Debt Service Requirements of the Bonds shall be at a rate from year to year as will be ample
and sufficient to provide funds each year to pay the principal of and interest on said Bonds while
Outstanding; full allowance being made for delinquencies and costs of collection; separate books
and records relating to the receipt and disbursement of taxes levied, assessed and collected for
and on account of the Bonds shall be kept and maintained by the City at all times while the
Bonds are Outstanding, and the taxes collected for the payment of the Debt Service
Requirements on the Bonds shall be deposited to the credit of a "Special 2009 Bond Account"
(the "Interest and Sinking Fund") maintained on the records of the City and deposited in a
special fund maintained at an official depository of the City's funds; and such tax hereby levied,
and to be assessed and collected annually, is hereby pledged to the payment of the Bonds.
The Mayor, Mayor Pro Tem, City Manager, Budget Manager and City Secretary of the
City, individually or jointly, are hereby authorized and directed to cause to be transferred to the
Paying Agent/ Registrar for the Bonds, from funds on deposit in the Interest and Sinking Fund,
amounts sufficient to fully pay and discharge promptly each installment of interest and principal
of the Bonds as the same accrues or matures or comes due by reason of redemption prior to
maturity; such transfers of funds to be made in such manner as will cause collected funds to be
deposited with the Paying Agent/Registrar on or before each principal and interest payment date
for the Bonds.
SECTION 1 I: Mutilated-Destroyed-Lost and Stolen Bonds. In case any Bond shall be
mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may execute and deliver a
replacement Bond of like form and tenor, and in the same denomination and bearing a number
not contemporaneously outstanding, in exchange and substitution for such mutilated Bond, or in
lieu of and in substitution for such destroyed, lost or stolen Bond, only upon 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 Bond, and of
the authenticity of the ownership thereof and (ii) the furnishing to the Paying Agent/Registrar of
indemnification in an amount satisfactory to hold the City and the Paying Agent/Registrar
harmless. All expenses and charges associated with such indemnity and with the preparation,
75822945.2/10909912 14
X68
execution and delivery of a replacement Bond shall be borne by the Holder of the Bond
mutilated, or destroyed, lost or stolen.
Every replacement Bond issued pursuant to this Section shall be a valid and binding
obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably with all
other Outstanding Bonds; notwithstanding the enforceability of payment by anyone of the
destroyed, lost, or stolen Bonds.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement and payment of mutilated, destroyed,
lost or stolen Bonds.
SECTION 12: Satisfaction of Obligation of City. If the City shall pay or cause to be
paid, or there shall otherwise be paid to the Holders, the principal of, premium, if any, and
interest on the Bonds, at the times and in the manner stipulated in this Ordinance, then the pledge
of taxes levied under this Ordinance and all covenants, agreements, and other obligations of the
City to the Holders shall thereupon cease, terminate, and be discharged and satisfied.
Bonds or any principal amount(s) thereof shall be deemed to have been paid within the
meaning and with the effect expressed above in this Section when (i) money sufficient to pay in
full such Bonds or the principal amount(s) thereof at maturity or to the redemption date therefor,
together with all interest due thereon, shall have been irrevocably deposited with and held in trust
by the Paying Agent/Registrar, or an authorized escrow agent, or (ii) Government Securities
shall have been irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized
escrow agent, which Government Securities have been certified by an independent accounting
firm to mature as to principal and interest in such amounts and at such times as will insure the
availability, without reinvestment, of sufficient money, together with any moneys deposited
therewith, if any, to pay when due the principal of and interest on such Bonds, or the principal
amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of redemption has
been duly given or waived or if irrevocable arrangements therefor acceptable to the Paying
Agent/Registrar have been made) the redemption date thereof. The City covenants that no
deposit of moneys or Government Securities will be made under this Section and no use made of
any such deposit which would cause the Bonds to be treated as "arbitrage bonds" within the
meaning of Section 148 of the Internal Revenue Code of 1986, as amended, or regulations
adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/ Registrar, or an authorized escrow
agent, and all income from Government Securities held in trust by the Paying Agent/Registrar, or
an authorized escrow agent, pursuant to this Section which is not required for the payment of the
Bonds, or any principal amount(s) thereof, or interest thereon with respect to which such moneys
have been so deposited shall be remitted to the City or deposited as directed by the City.
Furthermore, any money held by the Paying Agent/Registrar for the payment of the principal of
and interest on the Bonds and remaining unclaimed for a period of three (3) years after the Stated
Maturity or applicable redemption date of the Bonds (for which 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
75822945.2110909912 1 5
269
Paying Agent/Registrar to the City shall be subject to any applicable unclaimed property laws of
the State of Texas.
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 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.
SECTION 13: Ordinance aContract - Amendments - Outstanding Bonds. This
Ordinance shall constitute a contract with the Holders from time to time, be binding on the City,
and shall not be amended or repealed by the City so long as any Bond remains Outstanding
except as permitted in this Section and in Section 29 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 Bonds then Outstanding, amend,
add to, or rescind any of the provisions of this Ordinance; provided that, without the consent of
all Holders of Outstanding Bonds, no such amendment, addition, or rescission shall (1) extend
the time or times of payment of the principal of, premium, if any, and interest on the Bonds,
reduce the principal amount thereof, the redemption price therefor, or the rate of interest thereon,
or in any other way modify the terms of payment of the principal of, premium, if any, or interest
on the Bonds, (2) give any preference to any Bond over any other Bond, or (3) reduce the
aggregate principal amount of Bonds required to be held by Holders for consent to any such
amendment, addition, or rescission.
The term "Outstanding" when used in this Ordinance with respect to Bonds means, as of
the date of determination, all Bonds theretofore issued and delivered under this Ordinance,
except:
(1) those Bonds cancelled by the Paying Agent/Registrar or delivered
to the Paying Agent/Registrar for cancellation;
(2) those Bonds deemed to be duly paid by the City in accordance with
the provisions of Section 12 hereof; and
(3) those mutilated, destroyed, lost, or stolen Bonds which have been
replaced with Bonds registered and delivered in lieu thereof as provided in
Section 11 hereof.
75822945.2/10909912 16
270
SECTION 14: Covenants to Maintain Tax-Exempt Status.
(a) Definitions. When used in this Section 14, the following terms have the
following meanings:
"Closing Date" means the date on which the Bonds are first authenticated
and delivered to the initial purchasers against payment therefor.
"Code" means the Internal Revenue Code of 1986, as amended by all
legislation, if any, effective on or before the Closing Date.
"Computation Date" has the meaning set forth in Section 1.148-1(b) of the
Regulations.
"Gross Proceeds" means any proceeds as defined in Section 1.148-1(b) of
the Regulations, and any replacement proceeds as defined in Section 1.148-1(c) of
the Regulations, of the Bonds.
"Investment" has the meaning set forth in Section 1.148-1(b) of the
Regulations.
"Nonpurpose Investment" means any investment property, as defined in
section 148(b) of the Code, in which Gross Proceeds of the Bonds are invested
and which is not acquired to carry out the governmental purposes of the Bonds.
"Rebate Amount" has the meaning set forth in Section 1.148-1(b) of the
Regulations.
"Regulations" means any proposed, temporary, or final Income Tax
Regulations issued pursuant to Sections 103 and 141 through 150 of the Code,
and 103 of the Internal Revenue Code of 1954, which are applicable to the Bonds.
Any reference to any specific Regulation shall also mean, as appropriate, any
proposed, temporary or final Income Tax Regulation designed to supplement,
amend or replace the specific Regulation referenced.
"Yield" of (1) any Investment has the meaning set forth in Section 1.148-
of the Regulations and (2) the Bonds has the meaning set forth in Section
148-4 of the Regulations.
(b) Not to Cause Interest to Become Taxable. The City shall not use, permit the use
of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition,
construction or improvement of which is to be financed directly or indirectly with Gross
Proceeds) in a manner which if made or omitted, respectively, would cause the interest on any
Bond to become includable in the gross income, as defined in section 61 of the Code, of the
owner thereof for federal income tax purposes. Without limiting the generality of the foregoing,
unless and until the City receives a written opinion of counsel nationally recognized in the field
of municipal bond law to the effect that failure to comply with such covenant will not adversely
75822945.2/IO909912
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271
affect the exemption from federal income tax of the interest on any Bond, the City shall comply
with each of the specific covenants in this Section.
(c) No Private Use or Private Pa, ents. 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 Bonds:
(1) exclusively own, operate and possess all property the acquisition,
construction or improvement of which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Bonds (including property financed with
Gross Proceeds of the Refunded Obligations), and not use or permit the use of
such Gross Proceeds (including all contractual arrangements with terms different
than those applicable to the general public) or any property acquired, constructed
or improved with such Gross Proceeds in any activity carried on by any person or
entity (including the United States or any agency, department and instrumentality
thereof) other than a state or local government, unless such use is solely as a
member of the general public; and
(2} not directly or indirectly impose or accept any charge or other
payment by any person or entity who is treated as using Gross Proceeds of the
Bonds or any property the acquisition, construction or improvement of which is to
be financed or refinanced directly or indirectly with such Gross Proceeds
(including property financed with Gross Proceeds of the Refunded Obligations),
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 Bonds to
make or finance loans to any person or entity other than a state or local government. For
purposes of the foregoing covenant, such Gross Proceeds are considered to be "loaned" to a
person or entity if: (1) property acquired, constructed or improved with such Gross Proceeds is
sold or leased to such person or entity in a transaction which creates a debt for federal income tax
purposes; (2) capacity in or service from such property is committed to such person or entity
under 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 otherwise transferred in a transaction which is the
economic equivalent of a loan.
(e) Not to Invest at Hi er 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 Bonds 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 Bonds.
75822945.2/10909912 18
272
(f) Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the
Code and the Regulations and rulings thereunder, the City shall not take or omit to take any
action which would cause the Bonds to be federally guaranteed within the meaning of section
149(b) of the Code and the Regulations and rulings thereunder.
(g) Information Report. The City shall timely file the information required by section
149(e) of the Code with the Secretary of the Treasury on Form 8038-G or such other form and in
such place as the Secretary may prescribe.
(h) Rebate of Arbitrage Profits. Except to the extent otherwise provided in section
148(f) of the Code and the Regulations and rulings thereunder:
(1) The City shall account for all Gross Proceeds (including all
receipts, expenditures and investments thereof) on its books of account separately
and apart from all other funds (and receipts, expenditures and investments
thereof) and shall retain all records of accounting for at least six years after the
day on which the last Outstanding Bond is discharged. However, to the extent
permitted by law, the City may commingle Gross Proceeds of the Bonds with
other money of the City, provided that the City separately accounts for each
receipt and expenditure of Gross Proceeds and the obligations acquired therewith.
(2) Not less frequently than each Computation Date, the City shall
calculate the Rebate Amount. in accordance with rules set forth in section 148(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 Bonds until six years after the final Computation Date.
(3) As additional consideration for the purchase of the Bonds by the
Purchasers and the loan of the money represented thereby and in order to induce
such purchase by measures designed to insure the excludability of the interest
thereon from the gross income of the owners thereof for federal income tax
purposes, the City shall pay to the United States out of the 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 Bonds equals
(i) in the case of a Final Computation Date as defined in Section 1.148-3(e)(2) of
the Regulations, one hundred percent (100%) of the Rebate Amount on such date;
and (ii) in the case of any other Computation Date, ninety percent (90%) of the
Rebate Amount on such date. In all cases, the rebate payments shall be made at
the times, in the installments, to the place and in the manner as is or may be
required by section 148(f) of the Code and the Regulations and rulings
thereunder, and shall be accompanied by Form 8038-T or such other forms and
information as is or may be required by Section 148(f) of the Code and the
Regulations and rulings thereunder.
(4) The City shall exercise reasonable diligence to assure that no errors
are made in the calculations and payments required by paragraphs (2) and (3), and
75822945.2/10909912
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if an error is made, to discover and promptly correct such error within a
reasonable amount of time thereafter (and in all events within one hundred eighty
(180) days after discovery of the error), including payment to the United States of
any additional Rebate Amount owed to it, interest thereon, and any penalty
imposed under Section 1.148 3(h) of the Regulations.
(i) Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the Bonds, enter into any transaction that
reduces the amount required to be paid to the United States pursuant to Subsection (h) of this
Section because such transaction results in a smaller profit or a larger loss than would have
resulted if the transaction had been at arm's length and had the Yield of the Bonds not been
relevant to either party.
(j) 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 Bonds, in the Certificate as to Tax Exemption or
similar or other appropriate certificate, form or document.
(k) Bonds Not Hedge Bonds. (1) At the time the original bonds refunded by the
Bonds were issued, the City reasonably expected to spend at least 85% of the spendable proceeds
of such bonds within three years after such bonds were issued and (2) not more than 50% of the
proceeds of the original bonds refunded by the Bonds were invested in Nonpurpose Investments
having a substantially guaranteed Yield for a period of 4 years or more.
(1) (qualified Advance Refunding. The Bonds are being issued to refund the
Refunded Obligations and will be issued more than 90 days before the redemption of such
Refunded Obligations. The City represents as follows:
(1) The Bonds are the first advance refunding of the Refunded
Obligations, within the meaning of section 149(d)(3) of the Code.
(2) The Refunded Obligations are being called for redemption, and
will be redeemed not later than the earliest date on which such bonds may be
redeemed.
(3) The initial temporary period under section 148(c) of the Code will
end: (i) with respect to the proceeds of the Bonds not later than 30 days after the
date of issue of such Bonds; and (ii) with respect to proceeds of the Refunded
Obligations on the Closing Date if not ended prior thereto.
(4) On and after the date of issue of the Bonds, no proceeds of the
Refunded Obligations will be invested in Nonpurpose Investments having a Yield
in excess of the Yield on such respective series of refunded obligations.
(5) The Bonds are being issued for the purposes stated in the preamble
of this Ordinance. There is a present value savings associated with the refunding.
7822945.2/10909912 20
274
In the issuance of the Bonds the City has neither: (i) overburdened the tax-exempt
bond market by issuing more bonds, issuing bonds earlier or allowing bonds to
remain outstanding longer than reasonably necessary to accomplish the
governmental purposes for which the Bonds were issued; (ii) employed on
"abusive arbitrage device" within the meaning of Section 1.148-10(a) of the
Regulations; nor (iii) employed a "device" to obtain a material financial
advantage based on arbitrage, within the meaning of section 149(d)(4) of the
Code, apart from savings attributable to lower interest rates and reduced debt
service payments in early years.
(m) Qualified Tax Exempt Obli ations. In accordance with the provisions of
paragraph (3) of subsection (b) of Section 265 of the Code, the City hereby designates the Bonds
to be "qualified tax exempt obligations" in that the Bonds are not "private activity bonds" as
defined in the Code and represents the amount of "tax exempt obligations" (excluding private
activity bonds) to be issued by the City (including all subordinate entities of the City) for the
calendar year 2009 will not exceed $30,000,000.
SECTION 15: Sale of Bonds -Official Statement Approval. The Bonds authorized by
this Ordinance are hereby sold by the City to Stifel Nicolaus & Co. and Southwest Securities,
Inc. (herein collectively referred to as the "Underwriters") in accordance with the Bond Purchase
Agreement, dated September 22, 2009, attached hereto as Exhibit B and incorporated herein by
reference as a part of this Ordinance for all purposes. The Mayor is hereby authorized and
directed to execute said Bond Purchase Agreement for and on behalf of the City and as the act
and deed of this City Council, and in regard to the approval and execution of the Bond Purchase
Agreement, the City Council hereby finds, determines and declares that the representations,
warranties and agreements of the City contained in the Bond 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 by the Underwriters in
connection with the public offering and sale of the Bonds is hereby ratified, 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, and
City Secretary, one or more of said officials), shall be and is hereby in all respects approved and
the Underwriters are hereby authorized to use and distribute said final Official Statement, dated
September 22, 2009, in the reoffering, sale and delivery of the Bonds 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
Underwriters, 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 Underwriters.
SECTION 16: Special Escrow Agreement Approval and Execution. The "Special
Escrow Agreement" (the "Agreement") by and between the City and The Bank of New York
Mellon Trust Company, N.A., Dallas, Texas (the "Escrow Agent"), attached hereto as Exhibit C
and incorporated herein by reference as a part of this Ordinance for all purposes, is hereby
approved as to form and content, and such Agreement in substantially the form and substance
attached hereto, together with such changes dr revisions as may be necessary to accomplish the
75822945.2(10909912 21
275
refunding or benefit the City, is hereby authorized to be executed by the Mayor and City
Secretary for and on behalf of the City and as the act and deed of this City Council; and such
Agreement as executed by said officials shall be deemed approved by the City Council and
constitute the Agreement herein approved.
Furthermore, appropriate officials of the City in cooperation with the Escrow Agent are
hereby authorized and directed to make the necessary arrangements for the purchase of the
escrowed securities referenced in the Agreement and the delivery thereof to the Escrow Agent on
the day of delivery of the Bonds to the Underwriters for deposit to the credit of the "SPECIAL
2009 CITY OF PLAINVIEW, TEXAS, REFUNDING BOND ESCROW FUND" (the "Escrow
Fund"); all as contemplated and provided in V.T.C.A., Government Code, Chapter 1207, as
amended, this Ordinance and the Agreement.
SECTION 17: Control and Custody of Bonds. The Mayor of the City shall be and is
hereby authorized to take and have charge of all necessary orders and records pending
investigation by the Attorney General of the State of Texas, including the printing and supply of
definitive Bonds, and shall take and have charge and control of the Initial Bond(s) pending the
approval thereof by the Attorney General, the registration thereof by the Comptroller of Public
Accounts and the delivery thereof to the Underwriters.
Furthermore, the Mayor, Mayor Pro Tem, City Secretary, City Manager, and Budget
Manager, 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 Bonds,
including certifications as to facts, estimates, circumstances and reasonable expectations
pertaining to the use, expenditure, and investment of the proceeds of the Bonds, as may be
necessary for the approval of the Attorney General, the registration by the Comptroller of Public
Accounts and the delivery of the Bonds to the Underwriters, and, together with the City's
financial advisor, bond counsel and the Paying Agent/Registrar, make the necessary
arrangements for the delivery of the Initial Bond(s) to the Underwriters and the initial exchange
thereof for definitive Bonds.
SECTION 18: Proceeds of Sale. Immediately following the delivery of the Bonds,
proceeds of sale in the sum of (i) $6,792,595.99 shall be deposited to the credit of the Escrow
Fund and (ii) $22,473.91 shall be deposited to the credit of the Interest and Sinking Fund. The
balance of the proceeds of sale of the Bonds shall be expended to pay costs of issuance and any
excess amount budgeted for such purpose shall be deposited to the credit of the Interest and
Sinking Fund.
SECTION 19: Redemption of Refunded Obli atg ions.
(a) The certificates of obligation of that series known as "City of Plainview, Texas,
Tax and Waterworks and Sewer System Surplus Revenue Certificates of Obligation, Series
2001 " dated May 15, 2001, maturing in the years 2011 through 2021, and aggregating in
principal amount $6,635,000, shall be redeemed and the same are hereby called for redemption
on March 1, 2010, at the price of par and accrued interest to the date of redemption. The City
Secretary is hereby authorized and directed to file a copy of this Ordinance, together with a
suggested form of notice of redemption to be sent to certificateholders, with The Bank of New
75822945.2/10909912 22
276
York Mellon Trust Company, N.A., Dallas, Texas (successor paying agent/registrar to The Bank
of New York), in accordance with the redemption provisions applicable to such certificates; such
suggested form of notice of redemption being attached hereto as Exhibit D and incorporated
herein by reference as a part of this Ordinance for all purposes.
The redemption of the obligations described above being associated with the advance
refunding of such obligations, the approval, authorization and arrangements herein given and
provided for the redemption of such obligations on the redemption date designated therefor and
in the manner provided shall be irrevocable upon the issuance and delivery of the Bonds; and the
City Secretary is hereby authorized and directed to make all arrangements necessary to notify the
holders of such obligations of the City's decision to redeem such obligations on the dates and in
the manner herein provided and in accordance with the ordinance authorizing the issuance of the
obligations and this Ordinance.
SECTION 20: Notices to Holders-Waiver. Wherever this Ordinance provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to
the address of each Holder appearing in the Security Register at the close of business on the
business day next preceding the mailing of such notice.
In any case where notice to Holders is given by mail, neither the failure to mail such
notice to any particular Holders, nor any defect in any notice so mailed, shall affect the
sufficiency of such notice with respect to all other Bonds. Where this Ordinance provides for
notice in any manner, such notice may be waived in writing by the Holder entitled to receive
such notice, either before or after the event with respect to which such notice is given, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders-shall be filed with
the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 21: Cancellation. All Bonds surrendered for payment, redemption, transfer,
exchange, or replacement, if surrendered to the Paying Agent/Registrar, shall be promptly
cancelled by it and, if surrendered to the City, shall be delivered to the Paying Agent/Registrar
and, if not already cancelled, shall be promptly cancelled by the Paying Agent/Registrar. The
City may at any time deliver to the Paying Agent/Registrar for cancellation any Bonds
previously certified or registered and delivered which the City may have acquired in any manner
whatsoever, and all Bonds so delivered shall be promptly cancelled by the Paying
Agent/Registrar. All cancelled Bonds held by the Paying Agent/Registrar shall be returned to
the City.
SECTION 22: Le ag~l Opinion. The obligation of the Underwriters to accept delivery of
the Bonds is subject to being furnished a final legal opinion of Fulbright & Jaworski L.L.P.
approving such Bonds as to their validity, said opinion to be dated and delivered as of the date of
delivery and payment for such Bonds. A true and correct reproduction of said opinion is hereby
authorized to be printed on the definitive Bonds or an executed counterpart thereof shall
accompany the global Bonds deposited with the Depository Trust Company.
75822945.2/10909912 23
277
SECTION 23: CUSIP Numbers. CUSIP numbers may be printed or typed on the
definitive Bonds. It is expressly provided, however, that the presence or absence of CUSIP
numbers on the definitive Bonds shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Bonds as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds.
SECTION 24: 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, this Ordinance and all its provisions being
intended to be and being for the sole and exclusive benefit of the City, the Paying
Agent/Registrar and the Holders.
SECTION 25: 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 26: 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 27: Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
SECTION 28: 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 29: 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.
"Rule" means SEC Rule 15c2-12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
(b) Annual Reports. The City shall provide annually to the MSRB (1) within six
months after the end of each fiscal year, beginning in or after 2009, financial information and
operating data with respect to the City of the general type included in the final Official Statement
approved in Section 15 of this Ordinance, being the information described in Exhibit E hereto,
and (2) if not provided as part of such financial information and operating data, audited financial
statements of the City, when and if available. Any financial statements so provided shall be
prepared in accordance with the accounting principles described in Exhibit E hereto, or such
other accounting principles as the City may be required to employ from time to time pursuant to
75822945.2/10909912 24
278
state law or regulation, and audited, if the City commissions an audit of such statements and the
audit is completed within the period during which they must be provided.
If the City changes its fiscal year, it will notify the MSRB of the change (and of the date
of the new fiscal year end) prior to the next date by which the City otherwise would be required
to provide financial information and operating data pursuant to this Section.
The financial information and operating data to be provided pursuant to this Section may
be set forth in full in one or more documents or may be included by specific reference to any
document available to the public on the MSRB's Internet Web site or filed with the SEC.
(c) Material Event Notices. The City shall notify the MSRB, in a timely manner, of
any of the following events with respect to the Bonds, if such event is material within the
meaning of the federal securities laws:
1. Principal and interest payment delinquencies;
2. Non-payment related defaults;
3. Unscheduled draws on debt service reserves reflecting financial difficulties;
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 Bonds;
7. Modifications to rights of holders of the Bonds;
8. Bond calls;
9. Defeasances;
10. Release, substitution, or sale of property securing repayment of the Bonds; and
l 1. Rating changes.
The City shall notify 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) Fili~,s with the MSRB. All financial information, operating data, financial
statements, notices and other documents provided to the MSRB in accordance with this Section
shall be provided in an electronic format prescribed by the MSRB and shall be accompanied by
identifying information as prescribed by the MSRB.
(e) 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 Bonds within the meaning of the Rule, except
that the City in any event will give the notice required by subsection (c) hereof of any Bond calls
and defeasance that cause the City to be no longer such an "obligated person."
The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or
any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
75822945.2/10909912
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279
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 Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER
OR BENEFICIAL OWNER OF ANY BOND 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 to the contrary in this Ordinance, 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 an underwriter to purchase or sell Bonds in the primary offering of the Bonds in
compliance with the Rule, taking into account any amendments or interpretations of the Rule to
the date of such amendment, as well as such changed circumstances, and (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 Bonds
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 Bonds. The provisions of this Section may
also be amended from time to time or repealed by the City if the SEC amends or repeals the
applicable provisions of the Rule or a court of final jurisdiction determines that such provisions
are invalid, but only if and to the extent that reservation of the City's right to do so would not
prevent underwriters of the initial public offering of the Bonds from lawfully purchasing or
selling Bonds 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 pursuant to
subsection (b) hereof 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 30: Severability. If any provision of this Ordinance or the application thereof
to any circumstance shall be held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be valid, and the City Council
hereby declares that this Ordinance would have been enacted without such invalid provision.
75822945.J10909912 26
280
SECTION 31: 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.
SECTION 32: 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.
[remainder of page left blank intentionally)
75822945.2/10909912
27
28~
PASSED ON FIRST READING, September 17, 2009.
PASSED ON SECOND READING AND FINALLY ADOPTED, this September 22,
2009.
OF PLAINVIEW, TEXAS
ATTEST:
,t/
City ecretary
(City Seal)
75822945.2/10909912 [signature page of Bond Ordinance]
282
75822945.210909912
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
A-1
283
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT is entered into as of September 22, 2009 (this "Agreement"), by
and between The Bank of New York Mellon Trust Company, N.A., Dallas, Texas, a banking
association duly organized and existing under the laws of the United States of America (the
"Bank") and the City of Plainview, Texas (the "~ssuer"),
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the issuance of its "City of
Plainview, Texas, General Obligation Refunding Bonds, Series 2009" (the "Securities"), dated
September 15, 2009, such Securities scheduled to be delivered to the initial purchasers thereof on
or about October 22, 2009; 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 "Authorizing Document" (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 Authorizing Document.
The Bank hereby accepts its appointment, and agrees to serve as the Paying Agent and
Registrar for the Securities.
Section 1.02 Compensation. As compensation for the Bank's services as Paying
Agent/Registrar, the Issuer hereby agrees to pay the Bank the fees and amounts set forth in
Annex A attached hereto.
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
75824265.110909912
284
the provisions hereof (including the reasonable compensation and the expenses and
disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
"Acceleration Date" on any Security means the date on and after which
the principal or any or all installments of interest, or both, are due and payable on
any Security which has become accelerated pursuant to the terms of the Security.
"Authorizing Document" means the resolution, order, or ordinance of the
governing body of the Issuer pursuant to which the Securities are issued, as the
same may be amended or modified, including any pricing certificate related
thereto, certified by the secretary or any other officer of the Issuer and delivered
to the Bank.
"Bank Office" means the designated office of the Bank 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.
"Holder" and "Security Holder" each means the Person in whose name a
Security is registered in the Security Register.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision of a government.
"Predecessor Securities" of any particular 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
Authorizing Document).
"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
Authorizing Document.
"Responsible Officer", when used with respect to the Bank, means the
Chairman or Vice-Chairman of the Board of Directors, the Chairman or
Vice-Chairman of the Executive Committee of the Board of Directors, the
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any Assistant Cashier, any Trust
Officer or Assistant Trust Officer, or any other officer of the Bank customarily
performing functions similar to those performed by any of the above designated
75824265.110909912
2
285
officers and also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"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 Authorizing Document
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 Paving Agent. As Paying Agent, the Bank shall pay, provided
adequate collected funds have been provided to it for such purpose by or on behalf of the Issuer,
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:
First Class/
Registered/Certified
The Bank of New York
Mellon Trust Company, N.A.
Global Corporate Trust
P. O. Box 2320
Dallas, Texas 75221-2320
Express Delivery Only
The Bank of New York Mellon
Trust Company, N.A.
Global Corporate Trust
2001 Bryan Street, 9`h Floor
Dallas, Texas 75201
Hand Only
The Bank of New York Mellon
Trust Company, N.A.
Global Corporate Trust
Corporate Trust Window
101 Barclay Street, l5c Floor East
New York, New York 10286
As Paying Agent, the Bank shall, provided adequate collected funds have been provided
to it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer the interest on
each 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 Authorizing Document). 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 on the dates specified in the Authorizing Document.
75824265.110909912
286
ARTICLE FOUR
REGISTRAR
Section 4.01 Security Register -Transfers and Exchanges. The Bank agrees to keep
and maintain for and on behalf of the Issuer at the Bank Office books and records (herein
sometimes referred to as the "Security Register") for recording the names and addresses of the
Holders of the Securities, the transfer, exchange and replacement of the Securities and the
payment of the principal of and interest on the Securities to the Holders and containing such
other information as may be reasonably required by the Issuer and subject to such reasonable
regulations as the Issuer and the Bank may prescribe. All transfers, exchanges and replacements
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, such written instrument to be in a form satisfactory to the Bank and 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
Agent/Registrar.
Section 4.02 Securities. The Issuer shall provide additional Securities when needed to
facilitate transfers or exchanges thereof. The Bank covenants that such additional Securities, if
and when provided, 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
75824265.110909912 4
~~
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.
Section 4.05 Return of Cancelled Securities. The Bank will, at such reasonable
intervals as it determines, surrender to the Issuer, all Securities in lieu of which or in exchange
for which other Securities have been issued, or which have been paid.
Section 4.06 Mutilated, Destroyed, Lost or Stolen Securities. The Issuer hereby
instructs the Bank, subject to the provisions of the Authorizing Document, 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, 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 mutilated, 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,
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 correctness
of the opinions expressed therein, on certificates or opinions furnished to the Bank.
75824265.1~1~909912 S
288
(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
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.
(g) The Bank is also authorized to transfer funds relating to the closing and initial
delivery of the Securities in the manner disclosed in the closing memorandum or letter as
prepared by the Issuer, Issuer's financial advisor or other agent. The Bank may act on a
facsimile or a-mail transmission of the closing memorandum or letter acknowledged by the
Issuer, the Issuer's financial advisor or other agent as the final closing memorandum or letter.
The Bank shall not be liable for any losses, costs or expenses arising directly or indirectly from
the Bank's reliance upon and compliance with such instructions.
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 May 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 AgentlRegistrar, or any other agent.
75824265.110909912 6
289
Section 5.05 Moneys Held by Bank - Paving Agent Account/Collateralization. A
paying agent account shall at all times be kept and maintained by the Bank for the receipt,
safekeeping, and disbursement of moneys received from the Issuer under this Agreement for the
payment of the Securities, and money deposited to the credit of such account until paid to the
Holders of the Securities shall be continuously collateralized by securities or obligations which
qualify and are eligible under both the laws of the State of Texas and the laws of the United
States of America to secure and be pledged as collateral for paying agent accounts to the extent
such money is not insured by the Federal Deposit Insurance Corporation. Payments made from
such paying agent account shall be made by check drawn on such account unless the owner of
the Securities shall, at its own expense and risk, request an alternative method of payment.
Subject to the applicable unclaimed property laws of the State of Texas, any money
deposited with the Bank for the payment of the principal of, premium (if any), or interest on any
Security and remaining unclaimed for three years after final maturity of the Security has become
due and payable will be held by the Bank and disposed of only in accordance with 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 under this
Agreement.
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
without negligence or bad faith on its part, arising out of or in connection with its acceptance or
administration of its duties hereunder, including. the cost and expense against any claim or
liability in connection with the exercise or performance of any of its powers or duties under this
Agreement.
Section 5.07 Interpleader. The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over its person as well as funds on
deposit, in either a Federal or State District Court located in the State and County where the
administrative offices of the Issuer are 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.
In the event the Bank becomes involved in litigation in connection with this Section, the
Issuer, to the extent permitted by law, agrees to indemnify and save the Bank harmless from all
loss, cost, damages, expenses, and attorney fees suffered or incurred by the Bank as a result. The
obligations of the Bank under this Agreement shall be performable at the principal corporate
office of the Bank in the City of Dallas, Texas.
75824265.110909912 ~
290
Section 5.08 DTC 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 the signature page hereof.
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.Ob Severability. In case any provision herein shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 6.07 Merger, Conversion, Consolidation, or Succession. Any corporation or
association into which the Bank may be merged or converted or with which it may be
consolidated, or any corporation or association resulting from any merger, conversion, or
consolidation to which the Bank shall be a party, or any corporation or association succeeding to
all or substantially all of the corporate trust business of the Bank shall be the successor of the
Bank as Paying Agent under this Agreement without the execution or filing of any paper or any
further act on the part of either parties hereto.
Section 6.08 Benefits of Agreement. Nothing herein, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder, any benefit or any legal
or equitable right, remedy, or claim hereunder.
Section 6.09 Entire Agreement. This Agreement and the Authorizing Document
constitute the entire agreement between the parties hereto relative to the Bank acting as Paying
Agent/Registrar and if any conflict exists between this Agreement and the Authorizing
Document, the Authorizing Document shall govern.
75824265.1/10909912 g
291
Section 6.10 Counterparts. 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 6.11 Termination. This Agreement will terminate (i) on the date of final
payment of the principal of and interest on the Securities to the Holders thereof or (ii) may be
earlier terminated by either party upon sixty (60) days written notice; provided, however, an
early termination of this Agreement by either party shall not be effective until (a) a successor
Paying Agent/Registrar has been appointed by the Issuer and such appointment accepted and (b)
notice has been given to the Holders of the Securities of the appointment of a successor Paying
AgentlRegistrar. However, if the Issuer fails to appoint a successor Paying Agent/Registrar
within a reasonable time, the Bank may petition a court of competent jurisdiction within the State
of Texas to appoint a successor. Furthermore, the Bank and the Issuer mutually agree that the
effective date of an early termination of this Agreement shall not occur at any time which would
disrupt, delay or otherwise adversely affect the payment of the Securities.
Upon an early termination of this Agreement, the Bank agrees to promptly transfer and
deliver the Security Register (or a copy thereof), together with the other pertinent books and
records relating to the Securities, to the successor Paying AgentlRegistrar 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 6.12 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas.
[remainder of page left blank intentionally)
75824265.I~10909912 9
292
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., Dallas, Texas
BY:
Title:
Address: 2001 Bryan Street, 11th Floor
Dallas, Texas 75201
Attest:
Title:
BY:
Attest:
City Secretary
CITY OF PLAINVIEW, TEXAS
Mayor
Address: 901 Broadway
Plainview, Texas 79072
7~824265.II08009902 [signature page of Paying Agent/Registrar Agreement]
293
'i'I-lE BANK OF NF:W YO12I~ MF'1_I~ON
The Bank of New York Mellon Trust Comisany, N.A.
Fee Schedule
City of Plainview General Obligation Refunding Bonds, .S'eries 2009
Acceptance Fee None
A one-time charge covering the Bank Officer's review of governing documents, communication with members
of the closing party, inchiding representatives of the issuer, investment banker(s) and attorney(s), establishment
of procedures and controls, set-up of trust accounts and tickler suspense items and. the receipt and
disbursement/investment of bond proceeds. This fee is payable on the closing date.
Annual Paying Agent Administration Fee. $501)
An annual charge covering the normal paying agent duties related to account administration and bondholder
services. Our pricing is based on the assumption that the bonds are DTC-eligible/book-entry only. If the bonds
are certificated or physical, then we will have to charge an additional $1000 per year as a paying agent. This
fee is payable annually, in advance.
OR
One-time, upfront Paying Agent..
Administration Fee $4,500
A one-time charge covering the normal duties and responsibilities related to account administration. This fee is
payable on the closing date.
Pricing for Ca11 or Redemptions of Bonds X300
Call Pricing includes distribution of the call notice to holders of record., redemption processing, and notification
to NRMSIRs. Any publication expenses (i.e. Bond Buyer, regional periodical, financial periodicals, etc.) for
the call notice will be billed to the Issuer at cost.
Escrow Agent Fee: $750
The Escrow Agent Fee covers the consideration of documents and the normal administrative duties of the
escrow agent according to the governing documents. This fee is payable on the closing date and assumes
maturity March 1, 2010.
Extraordinary Services/Mist Fees:. i4t Appraisal
The charges for performing extraordinary or other services not contemplated at the time of the execution of the
transaction or not specifically covered elsewhere in this schedule will be commensurate with the service to be
provided and may be charged in BNYMTC's sole discretion. If it is contemplated that the Trustee hold and/or
value collateral or enter into any investment contract, forward purchase or similar or other agreement,
additional acceptance, administration and counsel review fees will be applicable to the agreement governing
such services. If the bonds are converted to certificated form, additional annual fees will be charged for any
applicable tender agent and/or registrar/paying agent services. Additional information will be provided at such
2001 Bryan - 1 l °i Floor Dallas, TX 75201
294
~r.1--11; 1~ANxv1~ Nln~ Your. MELON
The Bank. of New York Meilon Tnast Company, N.A.
time. Should this transaction terminate prior to closing, all out-of-pocket expenses incurred, including legal
fees, will be billed at cost. If all outstanding bonds of a series are defeased or called in full prior to their
maturity, a termination fee. maybe assessed at that time.
These extraordinary services may include, but are not limited to, supplemental agreements, consent operations,
unusual releases, tender processing, sinking fund redemptions, failed remarketing processing, the preparation
of special or interim reports, custody of collateral, cone-time fee to be charged upon termination of an
engagement. Counsel, accountants, special agents and others will be charged at the actual amount of fees and
expenses billed, UCC filing fees, money market sweep fees, auditor confirmation fees, wire transfer fees,
transaction fees to settle third-party trades and reconcilement fees to balance trust account balances to third-
party investment provider statements
Annual fees include one standard audit confirmation per year without charge. Standard audit confirmations
include the final maturity date, principal paid, principal outstanding, interest cycle, interest paid, cash and asset
information, interest rate, and. asset statement information. Non-standard audit confirmation requests may be
assessed an additional fee. Periodic tenders, sinking fiord, optional or extraordinary tali redemptions will be
assessed at $300 per event.
The fee for non-interest bearing balances left uninvested with the Bank will be 10 basis points for the quarter,
based on quarter-end spot balance levels, in excess of $250,000 (held in the U.S. offices of the Bank).
Terms and Disclosures
Terms of Proposal
Final acceptance of the appointment under the Indenture is subject to approval of authorized officers of BNYM
and full review and execution of all documentation related hereto. Please note that if this transaction does not
close, you will be responsible for paying any expenses incurred, including Counsel Fees. We reserve the right
to terminate this offer if we do not enter into final written docuuments within three months from the date this
document is first transmitted to you. Fees may be subject to adjustment during the life of the engagement.
Customer Notice Required by the USA Patriot Act
To help the US government fight the funding of terrorism and money laundering activities, US Federal law
requires all financial institutions to obtain, verify, and record information that identifies each person (whether
an individual or organization) for which a relationship is established..
What this means to you: When you establish a relationship with BNYM, we will ask you to provide certain
information (and documents) that will help us to identify you. We will ask for your organization's name,
physical address, tax identification or other govermnent registration number and other information that will
help us to identify you. We may also ask for a Certificate of Incorporation or similar document or other
pertinent identifying documentation for your type of organization.
We thank you for your assistance.
2001 Bryan - 11~' Floor DAIIAS, TX 75201
295
EXHIBIT B
BOND PURCHASE AGREEMENT
75822945.2 10909912 B- I
296
CITY OF PLAINVIEW, TEXAS
(A municipal corporation located within Hale County)
$6,875,000
GENERAL OBLIGATION REFUNDING BONDS
SERIES 2009
PURCHASE AGREEMENT
September 22, 2009
Honorable Mayor and City Council
City of Plainview, Texas
901 Broadway
Plainview, Texas 79072
Ladies and Gentlemen:
The undersigned, Stifel, Nicolaus & Company, Incorporated (the "Representative "),
acting on its own behalf and on behalf of the other underwriter listed on Schedule I hereto
(collectively, the "Underwriters ") 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 Underwriters. This offer is made subject to the Issuer's written acceptance
hereof on or before 10:00 p.m., Plainview, Texas Time, on September 22, 2009, and, if not so
accepted, will be subject to withdrawal by the Underwriters 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 Bonds. Subject to the terms and conditions and in reliance
upon the representations, warranties and agreements set forth herein, the Underwriters hereby
agree, jointly and severally, to purchase from the Issuer, and the Issuer hereby agrees to sell and
deliver to the Underwriters, all, but not less than all, of the Issuer's $6,875,000 General
Obligation Refunding Bonds, Series 2009 (the "Bonds"). Inasmuch as this purchase and sale
represents a negotiated transaction, the Issuer understands, and hereby confirms, that the
Underwriters are not acting as fiduciaries of the Issuer, but rather are acting solely in their
capacity as Underwriters for their own accounts. The Representative has been duly authorized to
execute this Agreement and to act hereunder.
The principal amount of the Bonds to be issued, the dated date therefor, the maturities
and redemption provisions and interest rates per annum are set forth in Schedule II hereto. The
Bonds 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 September 22, 2009 (the "Ordinance ").
HOU:2956024.2
297
The purchase price for the Bonds shall be $6,885,305.09 (the "Purchase Price ")
(representing the par amount of the Bonds, plus a net original issue premium of $54,050.65 and
less an underwriting discount of $43,745.56), plus interest accrued on the Bonds calculated on
the basis of a 360-day year of twelve 30-day months, from the dated date of the Bonds to the
Closing (as hereinafter defined).
Delivered to the Issuer herewith is the Representative's good faith corporate check
payable to the order of the Issuer in the amount of $69,250.00 (the "Check"). In the event that
the Issuer accepts this Agreement, the Check shall be held uncashed by the Issuer until the time
of Closing, at which time the Check shall be returned uncashed to the Representative. In the
event that the Issuer does not accept this Agreement, the Check shall be immediately returned to
the Representative. Should the Issuer fail to deliver the Bonds at the Closing, or should the
Issuer be unable to satisfy the conditions of the obligations of the Underwriters to purchase,
accept delivery of and pay for the Bonds, as set forth in this Agreement (unless waived by the
Representative), or should such obligations of the Underwriters be terminated for any reason
permitted by this Agreement, the Check shall immediately be returned to the Representative. In
the event that the Underwriters fail (other than for a reason permitted hereunder) to purchase,
accept delivery of and pay for the Bonds at the Closing as herein provided, the Check shall be
cashed and the amount thereof retained by the Issuer as and for fully liquidated damages for such
failure of the Underwriters, and, except as set forth in Sections 8 and 10 hereof, no party shall
have any further rights against the other hereunder. The Underwriters 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 Underwriters hereby waive any right to claim that the Issuer's actual damages
are less than such amount, and the Issuer's acceptance of this Agreement shall constitute a
waiver of any right the Issuer may have to additional damages from the Underwriters. The
Underwriters hereby agree not to stop or cause payment on the Check to be stopped unless the
Issuer has breached any material terms of this Agreement.
2. Public Offering. The Underwriters agree to make a bona ide public offering of all of
the Bonds at prices not to exceed the public offering prices set forth on page 2 of the Official
Statement and may subsequently change such offering prices without any requirement of prior
notice. The Underwriters may offer and sell Bonds to certain dealers (including dealers
depositing Bonds into investment trusts) and others at prices lower than the public offering prices
stated on page 2 of the Official Statement. On or before Closing, the Representative shall
execute an issue price certificate prepared by Bond Counsel (defined herein) verifying the initial
offering prices at which the Underwriters reasonably expect to sell or in fact sold a substantial
amount of each stated maturity of the Bonds to the public.
3. The Official Statement.
(a) The Issuer previously has delivered copies of the Preliminary Official
Statement dated September 15, 2009 (the "Preliminary Official Statement") to the
Underwriters. The Issuer will prepare a final Official Statement relating to the Bonds,
which will be (i) dated the date of this Agreement, (ii) complete within the meaning of
the United States Securities and Exchange Commission's Rule 15c2-12, as amended (the
"Rule"), and (iii) substantially in the form of the most recent version of the Preliminary
Official Statement provided to the Underwriters before the execution hereof. Such final
HOU:2956024.2
298
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 Bonds, is herein referred to as the "Official Statement." Until the
Official Statement has been prepared and is available for distribution, the Issuer shall
provide to the Underwriters sufficient quantities (which may be in electronic form) of the
Preliminary Official Statement as the Representative reasonably deems necessary to
satisfy the obligation of the Underwriters 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
Underwriters in connection with the public offering, sale and distribution of the Bonds.
The Issuer hereby represents and warrants that the Preliminary OfFcial Statement has
been 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 Bonds for completion, all as permitted to
be excluded by Section (b}(1) of the Rule.
(c) The Issuer hereby authorizes the Official Statement and the information
therein contained to be used by the Underwriters in connection with the public offering
and the sale of the Bonds. The Issuer consents to the use by the Underwriters prior to the
date hereof of the Preliminary Official Statement in connection with the public offering
of the Bonds. The Issuer shall provide, or cause to be provided, to the Underwriters 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 Underwriters in such quantity as the Representative reasonably shall
request in order for the Underwriters to comply with Section (b)(4) of the Rule and the
rules of the Municipal Securities Rulemaking Board (the "MSRB").
(d) If, after the date of this Agreement to and including the date the
Underwriters are 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 the MSRB, but in no case less than
twenty-five (25) days after the "end of the underwriting period" for the Bonds), the Issuer
becomes aware 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 Representative (and for
the purposes of this clause provide the Representative with such information as the
Representative may from time to time reasonably request), and if, in the reasonable
judgment of the Representative, such fact or event requires preparation and publication of
a supplement or amendment to the Official Statement, the Issuer will forthwith prepare
and furnish, at the Issuer's own expense (in a form and manner approved by the
Representative), areasonable number of copies of either an amendment or a supplement
3
HOU:2956024.2
300
delivered andlor 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 Bonds when issued,
delivered and paid for, in accordance with the Ordinance and this Agreement, will
constitute legal, valid and binding obligations of the Issuer payable from and secured by
the sources described in the Official Statement, 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; and upon the issuance, authentication and
delivery of the Bonds. as aforesaid, the Ordinance will provide, for the benefit of the
holders, from time to time, of the Bonds, the legally valid and binding pledge of and lien
it purports to create as set forth in the Ordinance;
(d) To the best of its knowledge, on the date hereof and on the date of
Closing, the Issuer is not in material breach of or default in any material respect under
any applicable constitutional provision, law or administrative regulation of the State or
the United States or any applicable judgment or decree that would have a material
adverse effect upon the operations or financial condition of the Issuer 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 no event has occurred and is continuing which constitutes or with the
passage of time or the giving of notice, or both, would constitute a default or event of
default by the Issuer under any of the foregoing; and the execution and delivery of the
Bonds, 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 under any constitutional provision, law or 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,. or under the terms of any such,
law, regulation or instrument, except as provided by the Bonds 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 Bonds 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 Bonds;
(f) The Bonds and the Ordinance conform to the descriptions thereof
contained in the Official Statement under the caption "THE BONDS"; the proceeds of
the sale of the Bonds will be applied generally as described in the Official Statement
HOU:2956024.2
299
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. If such notification shall be subsequent to the Closing, the Issuer shall furnish
such legal opinions, certificates, instruments and other documents as the Representative
may reasonably deem necessary to evidence the truth and accuracy of such supplement or
amendment to the Official Statement.
(e) The Representative hereby agrees to promptly file the Official Statement
with the MSRB. Unless otherwise notified in writing by the Representative, 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 Underwriters that:
(a) The Issuer is a home rule city duly created and existing under the laws of
the State of Texas (the "State"), and the Issuer's Home Rule Charter and is issuing the
Bonds pursuant to the laws of the State, particularly Chapter 1207, Texas Government
Code, as amended (the "Act "), 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 and the Act (i) to enter into, execute and deliver this Agreement, the Ordinance, the
Continuing Disclosure Undertaking (as defined in Section 6(h)(ii) hereof), the escrow
agreement described in the Ordinance for the Bonds (the "Escrow Agreement ") and all
documents required hereunder and thereunder to be executed and delivered by the Issuer
(this Agreement, the Ordinance, the Continuing Disclosure Undertaking and all other
documents referred to in this clause (i) (excluding the Official Statement) are hereinafter
referred to as the "Issuer Documents"), (ii) to sell, issue and deliver the Bonds to the
Underwriters as provided herein, and (iii) 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 material respects, with
applicable State law (including the Act) 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 (i) the adoption of the Ordinance and the issuance and sale of the Bonds, (ii) the
approval, execution and delivery of, and the performance by the Issuer of the obligations
on its part, contained in the Bonds and the Issuer Documents, and (iii) the consummation
by it of all other transactions described in the Official Statement, the Issuer Documents
and any and all such other agreements and documents as may be required to be executed,
4
HOU:2956024.2
301
under the caption "PLAN OF FINANCING -Sources and Uses of Proceeds"; and the
Continuing Disclosure Undertaking conforms to the description thereof contained in the
Official Statement under the caption "CONTINUING DISCLOSURE OF
INFORMATION";
(g) During the last five (5) years the Issuer has complied in all material
respects with its Continuing Disclosure Undertakings made by it in accordance with the
Rule;
(h) On the date hereof and on the date of Closing, 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 corporate 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 Bonds or the pledge or collection of ad valorem taxes
pledged to the payment of the principal of and interest on the Bonds pursuant to the
Ordinance or in any way contesting or affecting the validity or enforceability of the
Bonds or the Issuer Documents, or contesting the exclusion from gross income of interest
on the Bonds 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 Bonds, the adoption of the Ordinance or the execution and delivery
of the Issuer Documents wherein an unfavorable decision, ruling or finding would
materially adversely affect the validity or enforceability of the Bonds (including the
security therefor) 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 and (unless the Official
Statement is amended or supplemented pursuant to paragraph (d) of Section 3 of this
Agreement) 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 Official Statement
does not and 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
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 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
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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
the Bonds as provided in and subject to all of the terms and provisions of the Ordinance
and agrees not to 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 Bonds;
(m) The Issuer will furnish such information and execute such instruments and
take such action in cooperation with the Representative as the Representative may
reasonably request, at no expense to the Issuer, (i) to (A) qualify the Bonds 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 Representative may designate and (B) determine
the eligibility of the Bonds for investment under the laws of such states and other
jurisdictions and (ii) to continue such qualifications in effect so long as required for the
initial distribution of the Bonds by the Underwriters (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
Representative immediately of receipt by the Issuer of any notification with respect to the
suspension of the qualification of the Bonds for sale in any jurisdiction or, to the extent
the Issuer has actual knowledge thereof, the initiation or threat of any proceeding for that
purpose;
(n) The Issuer's financial statements and the other information regarding the
Issuer's financial condition and operations set forth 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 the 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 Issuer's financial condition or operations;
(p) The Issuer, to the extent heretofore requested by the Representative, has
delivered to the Underwriters true, correct, complete, and legible copies of all
information, applications, reports, or other documents submitted to any rating agency for
the purpose of obtaining a rating for the Bonds and true, correct, complete, and legible
copies of all correspondence or other communications relating, directly or indirectly,
thereto;
(q) Prior to the Closing the Issuer will not offer or issue any bonds, notes or
other obligations for borrowed money or (except in the ordinary course of business) incur
any material liabilities, direct or contingent, payable from or secured by any of the ad
valorem taxes, which will secure the Bonds without the prior approval of the
Representative, which approval shall not be unreasonably withheld;
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(r) 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
representation and warranty by the Issuer to the Underwriters as to the statements made
therein; and
(s) The Tssuer 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 the Official Statement to the Representative, the Issuer shall be deemed to
have reaffirmed, with respect to the Official Statement, the representations, warranties and
covenants set forth above with respect to the Preliminary Official Statement.
5. Closin .
(a) At or before 10:00 a.m., Dallas, Texas time, on October 22, 2009, or at
such other time and date as shall have been mutually agreed upon by the Issuer and the
Representative, the Issuer will, subject to the terms and conditions hereof, deliver to the
Representative the initial Bond registered in the name of the Representative, in temporary
form, together with the other documents hereinafter mentioned, and will have available
for immediate exchange definitive Bonds deposited with DTC, or deposited with the
Paying Agent/Registrar (hereinafter defined), if the Bonds are to be held in safekeeping
for DTC by the Paying Agent/Registrar pursuant to DTC's FAST system and the
Ordinance, duly executed and authenticated in the form and manner described below,
together with the other documents hereinafter mentioned, and the Underwriters will,
subject to the terms and conditions hereof, accept such delivery and pay the purchase
price of the Bonds as set forth in Paragraph 1 hereof in immediately available funds (such
events being referred to herein as the "Closing "). Payment for the Bonds as aforesaid
shall be made at the offices of The Bank of New York Mellon Trust Company, N.A.,
Dallas, Texas (the "Paying Agent/Registrar ") or such other place as shall have been
mutually agreed upon by the Issuer and the Representative.
(b) Delivery of the definitive Bonds in exchange for the initial Bond shall be
made through DTC, utilizing the book-entry only form of issuance. The definitive Bonds
shall be delivered in fully registered form bearing CUSIP numbers without coupons with
one certificate for each maturity of Bonds, registered in the name of Cede & Co. and shall
be made available to the Underwriters at least one business day before the Closing for
purposes of inspection.
6. Closing Conditions. The Underwriters have 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 Underwriters' obligations under this Agreement to purchase, to accept delivery of and to pay
for the Bonds 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
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shall also be subject to the following additional conditions, including the delivery by the Issuer
of such documents as are enumerated herein, in form and substance reasonably satisfactory to the
Representative:
(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, (i) the Issuer Documents and the Bonds shall
be in full force and effect 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 Representative and (ii) all actions of the
Issuer required to be taken by the Issuer shall be performed in order for Bond Counsel
and counsel to the Underwriters to deliver their respective opinions referred to hereafter;
(d) At the time of the Closing, all official action of the Issuer relating to the
Bonds 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
Representative;
(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
Paying Agent/Registrar shall have duly authenticated the definitive Bonds;
(f) The Issuer shall not have failed to pay principal or interest when due on
any of its outstanding obligations for borrowed money;
(g) 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
Agreement shall be reasonably satisfactory in legal form and effect to the Representative
and counsel to the Underwriters;
(h) At or prior to the Closing, the Representative shall have received one copy
of each of the following documents:
(i) The Official Statement, and each supplement or amendment
thereto, if any, as may have been agreed to by the Representative;
(ii) The Ordinance, certified by the Issuer as having been duly
adopted, with such supplements or amendments thereto as may have been agreed
to by the Representative, which shall include the undertaking of the Issuer which
satisfies the requirements of section (b)(5)(i) of the Rule (the "Continuing
Disclosure Undertaking");
HOU:2956024.2
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(iii) The fully executed Escrow Agreement;
(iv) The opinion of Fulbright & Jaworski L.L.P., Dallas, Texas ("Bond
Counsel"), with respect to the Bonds in substantially the form attached to the
Official Statement;
(v) A supplemental opinion of Bond Counsel addressed to the Issuer
and the Underwriters, substantially to the effect that:
(A) the Bonds are exempted securities under Section 3(a)(2) of
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 Bonds to
register the Bonds under the 1933 Act or to qualify the Ordinance under
the Trust Indenture Act; and
(B) the statements and information describing the Bonds and
the Ordinance contained in the Official Statement under the captions and
subcaptions "PLAN OF FINANCING -Refunded Obligations," "THE
BONDS" (except for the subcaptions "Book-Entry-Only System" and
"Remedies"), "TAX MATTERS," "CONTINUING DISCLOSURE OF
INFORMATION" (except for the subcaption "Compliance with Prior
Undertakings"), "OTHER INFORMATION -Legal Opinions" (except for
the last sentence of the first paragraph thereof), "OTHER
INFORMATION -Registration and Qualification of Bonds for Sale" and
"OTHER INFORMATION -Legal Investments and Eligibility to Secure
Public Funds in Texas" is an accurate and fair description of the laws and
legal issues addressed therein and, with respect to the Bonds, such
information conforms to the Ordinance;
(vi) An opinion, dated the date of the Closing and addressed to the
Underwriters, of counsel for the Underwriters, to the effect that:
(A) the Bonds are exempted securities that do not require
registration under the 1933 Act and the Trust Indenture Act and it is not
necessary, in connection with the offering and sale of the Bonds to register
any securities 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 Underwriters 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
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HOU:2956024.2
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under which they were made, not misleading (except for any financial,
forecast, technical and statistical statements acid data included in the
Official Statement, the information regarding 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);
(vii) A certificate, dated the date of Closing, of an appropriate official
of the Issuer to the effect that (A) all official actions of the Issuer relating to the
Bonds, the Issuer Documents and the Official Statement have been duly taken and
adopted by the Issuer, are in full force and effect, and have not been modified,
amended, supplemented or repealed; (B) the representations and warranties of the
Issuer contained herein or in any certificate or document delivered by the Issuer
pursuant to the provisions hereof are true and correct in all material respects on
and as of the date of Closing as if made on the date of Closing; (C) no litigation or
proceeding against the Issuer is pending or, to his or her knowledge, threatened in
any court or administrative body which would (1) contest the right of the City
Council members, officers or officials of the Issuer to hold and exercise their
respective positions, (2) contest the due organization and valid existence of the
Issuer, (3) attempt to restrain or enjoin the issuance or delivery of the Bonds or
contest the validity, due authorization and execution of the Bonds or the Issuer
Documents or (4) attempt to limit, enjoin or otherwise restrict or prevent the
Issuer from functioning and collecting ad valorem taxes pursuant to the
Ordinance, or the levy or collection of the ad valorem taxes pledged or to be
pledged to pay the principal of and interest on the Bonds or the pledge thereof;
(D) to the best of his or her knowledge, rio event affecting the Issuer has occurred
since the date of the Official Statement 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 material respect as
of the time of 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 (E) there has not been any
material adverse change in the financial condition of the Issuer since September
30, 2008, the latest date as of which audited financial information is available;
(viii) A certificate of the Issuer, dated the date of the Closing, of an
appropriate official of the Issuer, in form and substance satisfactory to Bond
Counsel and counsel to the Underwriters 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 Bonds will be used in a manner that would cause
the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Internal Revenue Code of 1986, as amended (the "Code"), and any applicable
regulations (whether final, temporary or proposed), issued pursuant to the Code;
HOU 2956024.2
307
(ix) 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 Bonds;
(x) Evidence of a rating assigned to the Bonds of "AA-" by Standard
& Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. and
that such rating is in effect as of the date of the Closing;
(xi) A copy of a special report prepared by Grant Thornton LLP,
independent certified public accountants (the "Verification Agent"), addressed to
the Issuer, Bond Counsel and the Underwriters, verifying (i) the arithmetical
computations of the adequacy of the maturing principal and interest on the
Federal Securities and uninvested cash on hand under the Escrow Agreement to
pay, when due, the principal of and interest on the Refunded Obligations, and (ii)
the computation of the yield with respect to the Federal Securities and the Bonds;
and
(xii) Such additional legal opinions, certificates, instruments and other
documents as Bond Counsel, the Representative or counsel to the Underwriters
may reasonably request to evidence the truth and accuracy, as of the date hereof
and as 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
Underwriters to purchase, to accept delivery of and to pay for the Bonds contained in this
Agreement, or if the obligations of the Underwriters to purchase, to accept delivery of and to pay
for the Bonds shall be terminated for any reason permitted by this Agreement, this Agreement
shall terminate and neither the Underwriters nor the Issuer shall be under any further obligation
hereunder, except that the respective obligations of the Issuer and the Underwriters set forth in
Sections 4 and 8 hereof shall continue in full force and effect.
7. Termination. The Underwriters shall have the right to cancel their obligations to
purchase the Bonds if, between the date of this Agreement and the Closing, the market price or
marketability of the Bonds shall be materially adversely affected, in the sole judgment of the
Representative, reasonably exercised (as evidenced by a written notice to the Issuer terminating
the obligation of the Underwriters to accept delivery of and pay for the Bonds), 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
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
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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 governmental 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 bonds or obligations of the general character of the
Bonds, of the interest on the Bonds 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 Bonds, including any or all underlying
arrangements, are not exempt from xegistration 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 bonds or obligations
of the general character of the Bonds, including any or all underlying arrangements, as
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 in which more than 1 S% of the Bonds have been offered and sold
shall have withheld registration, exemption or clearance of the offering of the Bonds as
described herein, or issued a stop order or similar ruling relating thereto, provided that
such withholding or stop order is not due to the malfeasance, misfeasance or nonfeasance
of the Underwriters;
(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, 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 Bonds or as to obligations of the
general character of the Bonds, any material restrictions not now in force, or incxease
materially those now in force, with respect to the extension of credit by, or the charge to
the net capital requirements of, the Underwriters which change shall occur subsequent to
the date hereof and shall not be due to the malfeasance, misfeasance or nonfeasance of
the Underwriters;
(f) any amendment to the federal or Texas Constitution or action by any
federal or Texas court, legislative body, regulatory body, or other authority materially
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adversely affecting the tax status of the Issuer, its property, income, securities (or interest
thereon), or the validity or enforceability of the levy of ad valorem taxes to pay principal
of and interest on the Bonds;
(g) any event occurring, or information becoming known which, in the
reasonable judgment of the Representative, makes untrue in any material respect any
material 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) Since the date of this Agreement, the United States shall have become
engaged in hostilities which have resulted in a declaration of war or a national emergency
or there shall have occurred any other 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 Representative, would materially or adversely affect the
ability of the Underwriters to market or sell the Bonds on the terms and in the manner
described in the Official Statement;
(j) any fact or event shall exist or have existed that, in the Representative's
reasonable judgment, requires or has required an amendment of or supplement to the
Official Statement;
(k) there shall have occurred any downgrading, or any notice shall have been
given of (i) any intended or potential downgrading or (ii) any review or possible change
that does not indicate a possible upgrade, in the rating accorded any of the Issuer's
obligations that are secured, in whole or in part, in a like manner as the Bonds (including
the rating to be accorded the Bonds); and
(1} the purchase of and payment for the Bonds by the Underwriters, or the
resale of the Bonds by the Underwriters, 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 Underwriters.
With respect to the condition described in subparagraph (1) above, the Underwriters are
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 Underwriters to invoke their
termination rights hereunder.
8. Expenses.
(a) The Underwriters shall be under no obligation to pay, and the Issuer shall
pay, any expenses incident to the performance of the Issuer's obligations hereunder,
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including, but not limited to (i) the cost of preparation and printing of the Bonds; (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 and disbursements of the Verification Agent;
(v) the fees, if any, for bond ratings; (vi) the costs of preparing, printing and mailing the
Preliminary Official Statement and the Official Statement; (vii) the fees and expenses of
the Paying Agent/Registrar, the Escrow Agent and any other paying agents for the
Refunded Obligations; (viii) the out-of-pocket, miscellaneous and closing expenses,
including the cost of travel, of the officers and officials of the Issuer; (ix) the Attorney
General's review fee; and (x) any other expenses mutually agreed to by the Issuer and the
Representative to be reasonably considered expenses of the Issuer which are incident to
the transactions described herein.
(b) The Underwriters 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 Bonds; and (iii) all
other expenses incurred by it in connection with the public offering of the Bonds
including the fees and disbursements of counsel retained by the Underwriters.
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 Underwriters under this Agreement may be given by
delivering the same in writing to Stifel, Nicolaus & Company, Incorporated, 9901 IH-10, Suite
800, San Antonio, Texas 78230, Attention: Mario Carrasco.
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 Underwriters
(including successors or assigns of the Underwriters) 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 and warranties 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
Underwriters; (ii) delivery of and payment for the Bonds pursuant to this Agreement; and (iii)
any termination of this Agreement.
11. Effectiveness. This Agreement shall become effective upon the acceptance hereof by
the Issuer and shall be valid and enforceable 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 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
15
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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 Dav. 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 are 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 regarded 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 Underwriters with any
liability, or be held liable to the Underwriters 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.
[The remainder of this page intentionally left blank]
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Respectfully submitted,
STIFEL, NICOLAUS & COMPANY,
INCORPORATED
By: _
Name:
Title:
APPROVED AND ACCEPTED this ,day of , 2009 at _a.m./p.m:
CITY OF PLAINVIEW, TEXAS
If you agree with the foregoing, please sign the enclosed counterpart of this Agreement
and return it to the Representative. This Agreement shall become a binding agreement between
the Issuer and the Underwriters when at least the counterpart of this letter shall have been signed
by or on behalf of each of the parties hereto.
Schedule I -List of Underwriters
Schedule II -Schedule of Terms
By: _
Name:
Title:
-Execution Page-
City of Plainview, Texas, General Obligation Refunding Bonds, Series 2009
HOU:2956024.2
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SCHEDULEI
List of Underwriters
Stifel, Nicolaus & Company, Incorporated
Southwest Securities, Inc.
Schedule I
HOU:2956024.2
314
Schedule II
$6,875,000
City of Plainview, Texas
General Obligation Refunding Bonds, Series 2009
Interest Accrues From: September 15, 2009
Maturity
Date Principal Interest Price or
3i /~ Amount Rate Yield
2010 $155,000 2.000% 0.700%
2011 540,000 2.000% 0.950%
2012 545,000 2.000% 1.360%
2013 560,000 2.000% 1.700%
2014 570,000 2.250% 1.930%
2015 585,000 2.500% 2.330%
2016 600,000 2.750% 2.640%
2017 620,000 3.000% 2.930%
2018 640,000 3.250% 3.150%
2019 660,000 3.500% 3.350%
2020~a~ 685,000 3.625% 3.470%
2021~8~ 715,000 3.500% 3.620%
A The Bonds maturing on and after March 1, 2020, are subject to redemption, in whole or in part, at the option of
the Issuer, at the par value thereof plus accrued interest on March 1, 2019, or any date thereafter.
Schedule II
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EXHIBIT C
SPECIAL ESCROW AGREEMENT
75822945.210909912 C'I
3~6
SPECIAL ESCROW AGREEMENT
THIS SPECIAL ESCROW AGREEMENT (the "Agreement"), made and entered into as
of September 22, 2009, by and between the City of Plainview, Texas, a duly incorporated
municipal corporation in Hale County, Texas (the "City") acting by and through the Mayor and
City Secretary, and The Bank of New York Mellon Trust Company, N.A., Dallas, Texas, a
banking association organized and existing under the laws of the United States of America, or its
successors or assigns hereunder (the "Bank"),
WITNESSETH:
WHEREAS, the City Council of the City of Plainview, Texas (the "City") has heretofore
issued, sold, and delivered, and there is currently outstanding, obligations totaling in principal
amount $6,635,000 (the "Refunded Obligations") more particularly described as follows: City of
Plainview, Texas, Tax and Waterworks and Sewer System Surplus Revenue Certificates of
Obligation, Series 2001, dated May 15, 2001, scheduled to mature on March 1 in each of the
years 2011 through 2021; and
WHEREAS, in accordance with the provisions of V.T.C.A., Government Code,
Chapter 1207, as amended (the "Act"), the City is authorized to sell refunding bonds in an
amount sufficient to provide for the payment of obligations to be refunded, deposit the proceeds
of such refunding bonds with any place of payment for the obligations being refunded, or other
authorized depository, and enter into an escrow or similar agreement with such depository for the
safekeeping, investment, reinvestment, administration and disposition of such deposit, upon such
terms and conditions as the parties may agree, provided such deposits may be invested only in (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 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 (hereinafter called the "Governmental Securities") that mature
and/or bear interest payable at such times and in such amounts as will be sufficient to provide for
the scheduled payment of the Refunded Obligations; and
WHEREAS, the Refunded Obligations are scheduled to mature, or be redeemed, and
interest thereon is payable on the dates and in the manner set forth in Exhibit A attached hereto
and incorporated herein by reference as a part of this Agreement for all purposes; and
WHEREAS, the City on the 22"d day of September, 2009, pursuant to an ordinance (the
"Bond Ordinance") finally passed and adopted by .the City Council, authorized the issuance of
bonds known as "City of Plainview, Texas, General Obligation Refunding Bonds, Series 2009"
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(the "Bonds"), and such Bonds are being issued to refund, discharge and make final payment of
the principal of and interest on the Refunded Obligations; and
WHEREAS, upon the delivery of the Bonds, the proceeds of sale, together with other
available funds of the City to be deposited with the Bank, are to be used in part to purchase the
Governmental Securities listed and identified in Exhibit B attached hereto and incorporated
herein by reference as a part of this Agreement for all purposes (together with substituted
securities therefor in accordance with the provisions of Section 11 hereof hereinafter referred to
as the "Escrowed Securities") ;and
WHEREAS, the Escrowed Securities shall be held and deposited to the credit of the
"Escrow Fund" to be established and maintained by the Bank in accordance with this
Agreement; and
WHEREAS, the Escrowed Securities, together with the beginning cash balance in the
Escrow Fund, shall mature and the interest thereon shall be payable at such times to insure the
existence of monies sufficient to pay the principal amount of the Refunded Obligations and the
accrued interest thereon, as the same shall become due in accordance with the terms of the
ordinances authorizing the issuance of the Refunded Obligations and as set forth in Exhibit A
attached hereto; and
WHEREAS, the City has completed all arrangements for the purchase of the Escrowed
Securities listed in Exhibit B and the deposit and credit of the same to the Escrow Fund as
provided herein; and
WHEREAS, the Bank is a banking association organized and existing under the laws of
the United States of America, possessing trust powers and is fully qualified and empowered to
enter into this Agreement and authorized to do business in the State of Texas; and
WHEREAS, in Section 16 of the Bond Ordinance, the City Council duly approved and
authorized the execution of this Agreement; and
WHEREAS, the City and the Escrow Agent, as the case may be, shall take all. action
necessary to call, pay, redeem and retire said Refunded Obligations in accordance with the
provisions thereof, including, without limitation, all actions required by the ordinance
authorizing the Refunded Obligations, the Act, the Bond Ordinance and this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein contained, and to
secure the payment of the principal of and the interest on the Refunded Obligations as the same
shall become due, the City and the Bank hereby mutually undertake, promise and agree as
follows:
SECTION 1: Receipt of Refunded Bond Ordinance. Receipt of a copy of the ordinance
authorizing the issuance of the Refunded Obligations and the Bond Ordinance are hereby
acknowledged by the Bank. Reference herein to or citation herein of any provision of said
documents shall be deemed an incorporation of such provision as a part hereof in the same
manner and with the same effect as if it were fully set forth herein.
75824278.110909912 2
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SECTION 2: Escrow Fund Creation/Fundin~. There is hereby created by the City with
the Bank a special segregated and irrevocable trust fund designated "SPECIAL 2009 CITY OF
PLAINVEW, TEXAS, REFUNDING BOND ESCROW FUND" (hereinafter called the "Escrow
Fund") for the benefit of the holders of the Refunded Obligations, and, immediately following
the delivery of the Bonds, the City agrees and covenants to cause to be deposited with the Bank
the following amounts:
$6,792,594.00 For the purchase of Escrowed Securities identified in Exhibit B to
be held for the account of the Escrow Fund
$ 1.99 For deposit in the Escrow Fund as a beginning cash balance.
The Bank hereby accepts the Escrow Fund and further agrees to receive said moneys,
apply the same as set forth herein, and to hold the cash and Escrowed Securities deposited and
credited to the Escrow Fund for application and disbursement for the purposes and in the manner
provided in this Agreement.
SECTION 3: Escrow Fund Sufficienc~Warranty. The City hereby represents that the
cash and Escrowed Securities, together with the interest to be earned thereon, deposited to the
credit of the Escrow Fund will be sufficient to pay the principal of and premium and interest on
the Refunded Obligations as the same shall become due and payable, and such Refunded
Obligations, and the interest thereon, are to mature or be redeemed and shall be paid at the times
and in the amounts set forth and identified in Exhibit A attached hereto.
FURTHERMORE, the Bank acknowledges receipt of a copy of the Bond Ordinance
which also provides for the redemption of the Refunded Obligations on March 15, 2010 at the
redemption price of par plus accrued interest; all in accordance with the provisions of the notice
requirements applicable to said Refunded Obligations and the notice requirements contained in
the ordinance authorizing such Refunded Obligations.
The Bank agrees to cause a notice of redemption pertaining to the Refunded Obligations
to be sent to the registered owners thereof appearing on the registration books at least thirty (30)
days prior to the redemption date therefor.
SECTION 4: Pledge of Escrow. The Bank agrees that all cash and Escrowed Securities,
together with any income or interest earned thereon, held in the Escrow Fund shall be and is
hereby irrevocably pledged to the payment of the principal of and interest on the Refunded
Obligations which will mature and become due on and after the date of this Agreement, and such
funds initially deposited and to be received from maturing principal and interest on the Escrowed
Securities in the Escrow Fund shall be applied solely in accordance with the provisions of this
Agreement.
SECTION 5: Escrow Insufficiency -City Warranty to Cure. If, for any reason, the
funds on hand in the Escrow Fund shall be insufficient to make the payments set forth in Exhibit
A attached hereto, as the same becomes due and payable, the City shall make timely deposits to
the Escrow Fund, from lawfully available funds, of additional funds in the amounts required to
make such payments. Notice of any such insufficiency shall be immediately given by the Bank
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to the City by the fastest means possible, but the Bank shall in no manner be responsible for the
City's failure to make such deposits.
SECTION 6: Escrow Fund Securities/Segre>;ation. The Bank shall hold said Escrowed
Securities and moneys in the Escrow Fund at all times as a special and separate trust fund for the
benefit of the holders of the Refunded Obligations, wholly segregated from other moneys and
securities on deposit with the Bank; shall never commingle said Escrowed Securities and moneys
with other moneys or securities of the Bank; and shall hold and dispose of the assets therein only
as set forth herein. Nothing herein contained shall be construed as requiring the Bank to keep the
identical moneys, or any part thereof, in said Escrow Fund, if it is impractical, but moneys of an
equal amount, except to the extent such are represented by the Escrowed Securities, shall always
be maintained on deposit in the Escrow Fund by the Bank, as escrow agent; and a special
account evidencing such facts shall at all times be maintained on the books of the Bank.
SECTION 7: Escrow Fund Collections/Payments. The Bank shall from time to time
collect and receive the principal of and interest on the Escrowed Securities as they respectively
mature and become due and credit the same to the Escrow Fund. On or before each principal
and/or interest payment date or redemption date, as the case may be, for the Refunded
Obligations shown in Exhibit A attached hereto, the Bank, without further direction from
anyone, including the City, shall cause to be withdrawn from the Escrow Fund the amount
required to pay the accrued interest on the Refunded Obligations due and payable on said
payment date and the principal of the Refunded Obligations due and payable on said payment
date or redemption date, as the case may be, and the amount withdrawn from the Escrow Fund
shall be immediately transmitted and deposited with the paying agent for the Refunded
Obligations to be paid with such amount. The paying agent for the Refunded Obligations is the
Bank.
If any Refunded Obligation thereon shall not be presented for payment when the
principal thereof or interest thereon shall have become due, and if cash shall at such times be
held by the Bank in trust for that purpose sufficient and available to pay the principal of such
Refunded Obligation and interest thereon it shall be the duty of the Bank to hold said cash
without liability to the holder of such Refunded Obligation for interest thereon after such
maturity or redemption date, in trust for the benefit of the holder of such Refunded Obligation,
who shall thereafter be restricted exclusively to said cash for any claim of whatever nature on his
part on or with respect to said Refunded Obligation, including for any claim for the payment
thereof and interest thereon. All cash required by the provisions hereof to be set aside or held in
trust for the payment of the Refunded Obligations, including interest thereon, shall be applied to
and used solely for the payment of the Refunded Obligations and interest thereon with respect to
which such cash has been so set aside in trust.
Subject to the provisions of the last sentence of Section 25 hereof, cash held by the Bank
in trust for the payment and discharge of any of the Refunded Obligations and interest thereon
which remains unclaimed for a period of three (3) years after the stated maturity date or
redemption date of such Refunded Obligations shall be returned to the City. Notwithstanding the
above and foregoing, any remittance of funds from the Bank to the City shall be subject to any
applicable unclaimed property laws of the State of Texas.
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SECTION 8: Disposal of Refunded Obli atg ions. All Refunded Obligations cancelled on
account of payment by the Bank shall be disposed of or otherwise destroyed by the Bank, and an
appropriate certificate of destruction furnished the City.
SECTION 9: Escrow Fund Encumbrance. The escrow created hereby shall be
irrevocable and the holders of the Refunded Obligations shall have an express lien on all moneys
and Escrowed Securities in the Escrow Fund until paid out, used and applied in accordance with
this Agreement.
Unless disbursed in payment of the Refunded Obligations, all funds and the Escrowed
Securities received by the Bank for the account of the City hereunder shall be and remain the
property of the Escrow Fund and the City and the owners of the Refunded Obligations shall be
entitled to a preferred claim and shall have a first lien upon such funds and Escrowed Securities
enjoyed by a trust beneficiary. The funds and Escrowed Securities received by the Bank under
this Agreement shall not be considered as a banking deposit by the City and the Bank and the
City shall have no right or title with respect thereto, except as otherwise provided herein. Such
funds and Escrowed Securities shall not be subject to checks or drafts drawn by the City.
SECTION 10: Absence of Bank Claim/Lien on Escrow Fund. The Bank shall have no
lien whatsoever upon any of the moneys or Escrowed Securities in the Escrow Fund for payment
of services rendered hereunder, services rendered as paying agent/registrar for the Refunded
Obligations, or for any costs or expenses incurred hereunder and reimbursable from the City.
SECTION 11: Substitution of Investments/Reinvestments.
(a) The Bank shall be authorized to accept initially and temporarily cash
and/or substituted Escrowed Securities pending the delivery of the Escrowed Securities
identified in the Exhibit B attached hereto, or shall be authorized to redeem the Escrowed
Securities and reinvest the proceeds thereof, together with other moneys held in the Escrow Fund
in noncallable direct obligations of the United States of America provided such early redemption
and reinvestment of proceeds does not change the repayment schedule of the Refunded
Obligations appearing in Exhibit A and the Bank receives the following:
(1) an opinion by an independent certified public accountant to the
effect that (i) the initial and/or temporary substitution of cash and/or securities for
one or more of the Escrowed Securities identified in Exhibit B pending the receipt
and delivery thereof to the Escrow Agent or (ii) the redemption of one or more of
the Escrowed Securities and the reinvestment of such funds in one or more
substituted Governmental Securities, together with the interest thereon and other
available moneys then held in the Escrow Fund, will, in either case, be sufficient,
without reinvestment, to pay, as the same become due in accordance with Exhibit
A, the principal of, and interest on, the Refunded Obligations which have not
previously been paid, and
(2) with respect to an early redemption of Escrowed Securities and the
reinvestment of the proceeds thereof, an unqualified opinion of nationally
recognized municipal bond counsel to the effect that (a) such investment will not
75824278.1/10909912 5
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cause interest on the Bonds or Refunded Obligations to be included in the gross
income for federal income tax purposes, under the Code and related regulations as
in effect on the date of such investment, or otherwise make the interest on the
Bonds or the Refunded Obligations subject to Federal income taxation and (b)
such reinvestment complies with the Constitution and laws of the State of Texas
and with all relevant documents relating to the issuance of the Refunded
Obligations and the Bonds.
(b) If on the date and in the amount shown in Exhibit C attached hereto there
exists cash in the Escrow Fund, the Bank and the City agree at least fifteen (15) days prior to
such date, to subscribe for the purchase of United States Treasury Securities -State and Local
Government Series (BEGS) bearing zero interest (0%) and on such date, in the amount and
scheduled to mature as provided in Exhibit C and subscription forms prepared therefor as may be
then required by the United States Department of the Treasury; provided that the then existing
rules and regulations and policy of United States Department of the Treasury permit and
authorize such investments. Should the policy, rules and regulations of the United States
Department of Treasury not permit or authorize the purchase of such SLGS at such time or
times, such cash balance or balances shall remain uninvested and held in trust for the benefit of
the holders of the Refunded Obligations and used for the payment of the Refunded Obligations
on the dates and in the amount such moneys would have been expended had such SLGS been
acquired and matured.
SECTION 12: Restriction on Escrow Fund Investments -Reinvestment. Except as
provided in Section 11 hereof, moneys in the Escrow Fund will be invested only in the Escrowed
Securities listed in Exhibit B and neither the City nor the Bank shall reinvest any moneys
deposited in the Escrow Fund except as specifically provided by this Agreement.
SECTION 13: Excess Funds. If at any time through redemption or cancellation of the
Refunded Obligations there exists or will exist excesses of interest on or maturing principal of
the Escrowed Securities in excess of the amounts necessary hereunder for the Refunded
Obligations, the Bank may transfer such excess amounts to or on the order of the City, provided
that the City delivers to the Bank the following:
(1) an opinion by an independent certified public accountant that after
the transfer of such excess, the principal amount of securities in the Escrow Fund,
together with the interest thereon, and other available monies then held in the
Escrow Fund, will be sufficient to pay, as the same become due and without
reinvestment, in accordance with Exhibit A, the principal of, and interest on, the
Refunded Obligations which have not previously been paid, and
(2) an unqualified opinion of nationally recognized municipal bond
counsel to the effect that (a) such transfer will not cause interest on the Bonds or
the Refunded Obligations to be included in gross income for federal income tax
purposes, under the Code and related regulations as in effect on the date of such
transfer, or otherwise make the interest on the Bonds or the Refunded Obligations
subject to Federal income taxation, and (b) such transfer complies with the
75824278.110909912 6
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Constitution and laws of the State of Texas and with all relevant documents
relating to the issuance of the Refunded Obligations or the Bonds.
SECTION 14: Collateralization. The Bank shall continuously secure the monies in the
Escrow Fund not invested in Escrowed Securities by a pledge of direct obligations of the United
States of America, in the par or face amount at least equal to the principal amount of said
uninvested monies to the extent such money is not insured by the Federal Deposit Insurance
Corporation.
SECTION 15: Absence of Bank's Liability for Investments. The Bank shall not be liable
or responsible for any loss resulting from any investment made in the Escrowed Securities or
substitute securities as provided in Section 11 hereof.
SECTION 16: Bank's Compensation -Escrow Administration/Settlement of Paving
Agent's Charges. The City agrees to pay the Bank for the performance of services hereunder
and as reimbursement for anticipated expenses to be incurred hereunder the amount of $750.00
and, except for reimbursement of costs and expenses incurred by the Bank pursuant to
Sections 3, 11 and 19 hereof, the Bank hereby agrees said amount is full and complete payment
for the administration of this Agreement.
The City also agrees to deposit with the Bank on the effective date of this Agreement, the
sum of $300.00, which represents the total charge due the Bank as paying agent for the
Refunded Obligations and the Bank acknowledges and agrees that above amount is and
represents the total amount of compensation due the Bank for services rendered as paying agent
for the Refunded Obligations. The Bank hereby agrees to pay, assume and be fully responsible
for any additional charges that it may incur in the performance of its duties and responsibilities
as paying agent for the Refunded Obligations.
SECTION 17: Escrow A.gent's Duties / Responsibilities/Liability. The Bank shall not
be responsible for any recital herein, except with respect to its organization and its powers and
authority. As to the existence or nonexistence of any fact relating to the City or as to the
sufficiency or validity of any instrument, paper or proceedings relating to the City, the Bank.
shall be entitled to rely upon a certificate signed on behalf of the City by its City Secretary or
Mayor and/or City Secretary of the City as sufficient evidence of the facts therein contained.
The Bank may accept a certificate of the City Secretary under the City's seal, to the effect that a
resolution or other instrument in the form therein set forth has been adopted by the City Council
of the City, as conclusive evidence that such resolution or other instrument has been duly
adopted and is in full force and effect.
The duties and obligations of the Bank shall be determined solely by the express
provisions of this Agreement and the Bank shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Bank.
In the absence of bad faith on the part of the Bank, the Bank may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon any
certificate or opinion furnished to the Bank, conforming to the requirements of this Agreement;
75824278.1/10909912 7
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but notwithstanding any provision of this Agreement to the contrary, in the case of any such
certificate or opinion or any evidence which by any provision hereof is specifically required to
be furnished to the Bank, the Bank shall be under a duty to examine the same to determine
whether it conforms to the requirements of this Agreement.
The Bank shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Bank unless it shall be proved that the Bank was negligent
in ascertaining or acting upon the pertinent facts.
The Bank shall not be liable with respect to any action taken or omitted to be taken by it
in good faith in accordance with the direction of the holders of not less than a majority in
aggregate principal amount of all said Refunded Obligations at the time outstanding relating to
the time, method and place of conducting any proceeding for any remedy available to the Bank
not in conflict with the intent and purpose of this Agreement. For the purposes of determining
whether the holders of the required principal amount of said Refunded Obligations have
concurred in any such direction, Refunded Obligations owned by any obligor upon the Refunded
Obligations, or by any person directly or indirectly controlling or controlled by or under direct or
indirect common control with such obligor, shall be disregarded, except that for the purposes of
determining whether the Bank shall be protected in relying on any such direction only Refunded
Obligations which the Bank knows are so owned shall be so disregarded.
The term "Responsible Officers" of the Bank, as used in this Agreement, shall mean and
include the Chairman of the Board of Directors, the President, any Vice President and any
Second Vice President, the Secretary and any Assistant Secretary, the Treasurer and any
Assistant Treasurer, and every other officer and assistant officer of the Bank customarily
performing functions similar to those performed by the persons who at the time shall be officers,
respectively, or to whom any corporate trust matter is referred, because of his knowledge of and
familiarity with a particular subject; and the term "Responsible Officer" of the Bank, as used in
this Agreement, shall mean and include any of said officers or persons.
SECTION 18: Limitation Re: Bank's Duties/Responsibilities/Liabilities to Third Parties.
The Bank shall not be responsible or liable to any person in any manner whatever for the
sufficiency, correctness, genuineness, effectiveness, or validity of this Agreement with respect to
the City, or for the identity or authority of any person making or executing this Agreement for
and on behalf of the City. The Bank is authorized by the City to rely upon the representations of
the City with respect to this Agreement and the deposits made pursuant hereto and as to the
City's right and power to execute and deliver this Agreement, and the Bank shall not be liable in
any manner as a result of such reliance. The duty of the Bank hereunder shall only be to the City
and the holders of the Refunded Obligations. Neither the City nor the Bank shall assign or
attempt to assign or transfer any interest hereunder or any portion of any such interest. Any such
assignment or attempted assignment shall be in direct conflict with this Agreement and be
without effect.
SECTION 19: Interpleader. In the event conflicting demands or notices are made upon
the Bank growing out of or relating to this Agreement or the Bank in good faith is in doubt as to
what action should be taken hereunder, the Bank shall have the right at its election to:
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(1) Withhold and stop all further proceedings in, and performance of,
this Agreement with respect to the issue in question and of all instructions
received hereunder in regard to such issue; and
(2) File a suit in interpleader and obtain an order from a court of
appropriate jurisdiction requiring all persons involved to interplead and litigate in
such court their several claims and rights among themselves.
In the event the Bank becomes involved in litigation in connection with this Section, the
City, to the extent permitted by law, agrees to indemnify and save the Bank harmless from all
loss, cost, damages, expenses and attorney fees suffered or incurred by the Bank as a result
thereof. The obligations of the Bank under this Agreement shall be performable at the corporate
office of the Bank in the City of Dallas, Texas.
The Bank may advise with legal counsel in the event of any dispute or question regarding
the construction of any of the provisions hereof or its duties hereunder, and in the absence of
negligence or bad faith on the part of the Bank, no liability shall be incurred by the Bank for any
action taken pursuant to this Section and the Bank shall be fully protected in acting in accordance
with the opinion and instructions of legal counsel that is knowledgeable and has expertise in the
field of law addressed in any such legal opinion or with respect to the instructions given.
SECTION 20: Accounting -Annual Report. Promptly after September 30th of each year,
commencing with the year 2010, while the Escrow Fund is maintained under this Agreement, the
Bank shall forward to the City, to the attention of the Budget Manager, or other designated
official of the City, a statement in detail of the Escrowed Securities and monies held, and the
current income and maturities thereof, and the withdrawals of money from the Escrow Fund for
the preceding 12 month period ending September 30th of each year.
SECTION 21: Notices. Any notice, authorization, request or demand required or
permitted to be given hereunder shall be in writing and shall be deemed to have been duly given
when mailed by registered or certified mail, postage prepaid addressed as follows:
CITY OF PLAINVEW, TEXAS
901 Broadway
Plainview, Texas 79072
Attention: Budget Manager
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
2001 Bryan Tower, 11th Floor
Dallas, Texas 75201
Attention: Corporate Trust Department
75824278.110909912
9
325
The United States Post Office registered or certified mail receipt showing delivery of the
aforesaid shall be conclusive evidence of the date and fact of delivery.
Any party hereto may change the address to which notices are to be delivered by giving
to the other parties not less than ten (10) days prior notice thereof.
SECTION 22: Performance Date. Whenever under the terms of this Agreement the
performance date of any provision hereof, including the date of maturity of interest on or
principal of the Refunded Obligations, shall be a Sunday or a legal holiday or a day on which the
Bank is authorized by law to close, then the performance thereof, including the payment of
principal of and interest on the Refunded Obligations, need not be made on such date but may be
performed or paid, as the case may be, on the next succeeding business day of the Bank with the
same force and effect as if made on the date of performance or payment and with respect to a
payment, no interest shall accrue for the period after such date.
SECTION 23: Warranty of Parties Re: Power to Execute and Deliver Escrow Agreement.
The City covenants that it will faithfully perform at all times any and all covenants,
undertakings, stipulations and provisions contained in this Agreement, in any and every said
Refunded Obligation as executed, authenticated and delivered and in all proceedings pertaining
thereto as said Refunded Obligations shall have been modified as provided in this Agreement.
The City covenants that it is duly authorized under the Constitution and laws of the State of
Texas to execute and deliver this Agreement, that all actions on its part for the payment of said
Refunded Obligations as provided herein and the execution and delivery of this Agreement have
been duly and effectively taken and that said Refunded Obligations and coupons in the hands of
the holders and owners thereof are and will be valid and enforceable obligations of the City
according to the import thereof as provided in this Agreement.
SECTION 24: Severability. If any one or more of the covenants or agreements provided
in this Agreement on the part of the parties to be performed should be determined by a court of
competent jurisdiction to be contrary to law, such covenant or agreement shall be deemed and
construed to be severable from the remaining covenants and agreements herein contained and
shall in no way affect the validity of the remaining provisions of this Agreement. In the event
any covenant or agreement contained in this Agreement is declared to be severable from the
other provisions of this Agreement, written notice of such event shall immediately be given to
each national rating service (Moody's Investors Service, Standard & Poor's Corporation or Fitch
Investors Service) which has rated the Refunded Obligations on the basis of this Agreement.
SECTION 25: Termination. This Agreement shall terminate when the Refunded
Obligations, including interest due thereon, have been paid and discharged in accordance with
the provisions of this Agreement. If any Refunded Obligations are not presented for payment
when due and payable, the nonpayment thereof shall not prevent the termination of this
Agreement. Funds for the payment of any nonpresented Refunded Obligations and accrued
interest thereon shall upon termination of this Agreement be held by the Bank for such purpose
in accordance with Section 7 hereof. Any moneys or Escrowed Securities held in the Escrow
Fund at termination and not needed for the payment of the principal of or interest on any of the
Refunded Obligations shall be paid or transferred to the City.
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SECTION 26: Time of the Essence. Time shall be of the essence in the performance of
obligations from time to time imposed upon the Bank by this Agreement.
SECTION 27: Successors/Assigns.
(a) Should the Bank not be able to legally serve or perform the duties and
obligations under this Agreement, or should the Bank be declared to be insolvent or closed for
any reason by federal or state regulatory authorities or a court of competent jurisdiction, the City,
upon being notified or discovering the Bank's inability or disqualification to serve hereunder,
shall forthwith appoint a successor to replace the Bank, and upon being notified of such
appointment, the Bank shall (i) transfer all funds and securities held hereunder, together with all
books, records and. accounts relating to the Escrow Fund and the Refunded Obligations, to such
successor and (ii) assign all rights, duties and obligations under this Agreement to such
successor. If the City should fail to appoint such a successor within ninety (90) days from the
date the City discovers, or is notified of, the event or circumstance causing the Bank's inability
or disqualification to serve hereunder, the Bank, or a bondholder of the Refunded Obligations,
may apply to a court of competent jurisdiction to appoint a successor or assigns of the Bank and
such court, upon determining the Bank is unable to continue to serve, shall appoint a successor to
serve under this Agreement and the amount of compensation, if any, to be paid to such successor
for the remainder of the term of this Agreement for services to be rendered both for
administering the Escrow Fund and for paying agent duties and responsibilities for the Refunded
Obligations.
(b) Furthermore, the Bank may resign and be discharged from performing its
duties and responsibilities under this Agreement upon notifying the City in writing of its
intention to resign and requesting the City to appoint a successor. No such resignation shall take
effect until a successor has been appointed by the City and such successor has accepted such
appointment and agreed to perform all duties and obligations hereunder for a total compensation
equal to the unearned proportional amount paid the Bank under Section 16 hereof for the
administration of this Agreement and the unearned proportional amount of the paying agents fees
for the Refunded Obligations due the Bank.
Any successor to the Bank shall be a bank, trust company or other financial institution
that is duly qualified under applicable law (the Act or other appropriate statute) to serve as
escrow agent hereunder and authorized and empowered to perform the duties and obligations
contemplated by this Agreement and organized and doing business under the laws of the United
States or the State of Texas, having its principal office and place of business in the State of
Texas, having a combined capital and surplus of at least $5,000,000 and be subject to the
supervision or examination by Federal or State authority.
Any successor or assigns to the Bank shall execute, acknowledge and deliver to the City
and the Bank, or its successor or assigns, an instrument accepting such appointment hereunder,
and the Bank shall execute and deliver an instrument transferring to such successor, subject to
the terms of this Agreement, all the rights, powers and trusts created and established and to be
performed under this Agreement. Upon the request of any such successor Bank, the City shall
execute any and all instruments in writing for more fully and certainly vesting in and confirming
75824278.1/10909912 1 1
327
to such successor Bank all such rights, powers and duties. The term "Bank" as used herein shall
be the Bank and its legal assigns and successor hereunder.
SECTION 28: Escrow Agreement - Amendment/Modification. This Agreement shall be
binding upon the City and the Bank and their respective successors and legal representatives and
shall inure solely to the benefit of the holders of the Refunded Obligations, the City, the Bank
and their respective successors and legal representatives. Furthermore, no alteration, amendment
or modification of any provision of this Agreement shall (1) alter the firm financial arrangements
made for the payment of the Refunded Obligations or (2) be effective unless (i) prior written
consent of such alteration, amendment or modification shall have been obtained from the holders
of all Refunded Obligations outstanding at the time of such alteration, amendment or
modification and (ii) such alteration, amendment or modification is in writing and signed by the
parties hereto; provided, however, the City and the Bank may, without the consent of the holders
of the Refunded Obligations, amend or modify the terms and provisions of this Agreement to
cure in a manner not adverse to the holders of the Refunded Obligations any ambiguity, formal
defect or omission in this Agreement. If the parties hereto agree to any amendment or
modification to this Agreement, prior written notice of such amendment or proposed
modification, together with the legal documents amending or modifying this Agreement, shall be
furnished to each national rating service (Standard & Poor's Corporation, Moody's Investors
Service or Fitch Investors Service) which has rated the Refunded Obligations on the basis of this
Agreement, prior to such amendment or modification being executed.
SECTION 29: Effect of Headin>;s. The Section headings herein are for convenience only
and shall not affect the construction hereof.
SECTION 30: Executed Counterparts. This Agreement may be executed in several
counterparts, all or any of which shall be regarded for all purposes as one original and shall
constitute and be but one and the same instrument.
SECTION 31: Governing Law. This Agreement shall be governed by the laws of the
State of Texas and shall be effective as of the date of the delivery of the Bonds.
[remainder of page left blank intentionally)
75824278.1 ~ 10909912 12
328
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be
executed by their duly authorized officers and their corporate seals to be hereunto affixed and
attested as of the date first above written.
CITY OF PLAINVEW, TEXAS
Mayor
ATTEST:
City Secretary
(City Seal)
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas,
as Escrow Agent
Title:
ATTEST:
Authorized Signer
(Bank Seal)
75824278.1/08009902 [signature page of Special Escrow Agreement]
329
EXHIBIT A
REFUNDED OBLIGATIONS
Debt Service To Maturity And To Call
Refunded Refunded Refunded
- Date Bonds Interest D/S To Call Principal Coupon Interest D/S
03/01/2010 6,635,000.00 160,498.13 6,795,498.13 - 4.500% 160,498.13 160,498.13
09/01/2010 - - - - - 160,498.13 160,498.13
03/0]/2011 - - - 470,000.00 4,500% 160,498.13 630,498.13
09/01/2011 - - - - - 149,923.13 149,923.13
03/0]/2012 - - - 490 000.00 4.550% 149,923 13 639,923.13
09/01/2012 - - - - - 138,775.63 138,775.63
03!01/2013 - - - 515,000.00 4.625% 138,775.63 653,775.63
09/01/2013 - - - - - 126,866,25 126,866.25
03/01/2014 - - - 540,000.00 4.700% 126,866,25 666,866.25
09/01/2014 - - - - - ] 14,176.25 114,176.25
03/01/2015 - - - 565,000.00 4.800% 114,176.25 679,176.25
09!01/2015 - - - - - 100,616.25 100,6]6,25
03!01/2016 - - - 595,000.00 4.850% 100,616.25 695,616.25
09/01/2016 - - - - - 86,187,50 86,187.50
03!01/2017 - - - 625,000.00 4.900% 86187.50 711187.50
09/01/2017 - - - - - 70,875.00 70,875.00
03/01/2018 - - - 655,000.00 5.000% 70,875.00 725,875.00
09/01/2018 - - - - - 54,500.00 54,500.00
03/0]/2019 - - - 690,000.00 5.000% 54,500.00 744,500.00
09/01!2019 _~___ _ - _ 37,250.00 37,250.00
03/01/2020 - - - 725,000.00 5.000% 37,250.00 762,250.00
09/01/2020 - - - - - 19,125.00 19,125.00
03/01/2021 - - - 765,000.00 5.000% 19,125.00 784,125.00
Total $6,635,000.00 $]60,498.13 $6,795,498.13 56,635,000.00 - $2,278,084.41 58,913,084.41
7~824278.1~08009902 A-1
330
EXHIBIT B
ESCROWED SECURITIES
Par Principal +Accrued
Maturity Tvpe Coupon Yield Price Amount Cost Interest =Total Cost
Escrow
03/01/20]0 SLGS-CI 0.120% 0.120% 100-.000000 6,792594 6.792,594.00 - 6.792,594.00
Subtotal - - - $6,792,594 $6,792,594.00 - $6,792,594.00
Total - - - 56,792,594 $6,792,594.00 - $6,792,594.00
Escrow
Cash Deaosit 1•~
Cost of ]nvestments Purchased with Bond Proceeds 6,792,594.00
Total Cost of Investments $6,792,595.99
Deliverv Date 10/2212009
75824278 1~U8009902
B-~
331
EXHIBIT C
ZERO REINVESTMENTS
[NOT APPLICABLE]
75824278.108009902 C'1
332
EXHIBIT D
NOTICE OF REDEMPTION
CITY OF PLAINVIEW, TEXAS
TAX AND WATERWORKS AND SEWER SYSTEM
SURPLUS REVENUE CERTIFICATES OF OBLIGATION
SERIES 2001
DATED MAY 15, 2001
NOTICE IS HEREBY GIVEN that the certificates of obligation of the above series
maturing on and after March 1, 2011, and aggregating in principal amount $6,635,000 have been
called for redemption on March 1, 2010 at the redemption price of par and accrued interest to the
date of redemption, such certificates being identified as follows:
Year of
CUSIP
Maturity Principal Amount Number
2011 $470,000
2012 $490,000
2013 $515,000
2014 $540,000
2015 $565,000
2016 $595,000
Year of CUSIP
Maturi Principal Amount Number
2017 $625,000
2018 $655,000
2019 $690,000
2020 $725,000
2021 $765,000
ALL SUCH CERTIFICATES shall become due and payable on March 1, 2010, and
interest thereon shall cease to accrue from and after said redemption .date and payment of the
redemption price of said certificates shall be paid to the registered owners of the certificates only
upon presentation and surrender thereof to The Bank of New York Mellon Trust Company, N.A.,
Dallas, Texas (successor paying agent/registrar to The Bank of New York) at its designated
offices at the following addresses:
First Class/Registered/Certified
The Bank of New York Mellon
Trust Company, N.A.
Institutional Trust Services
P. O. Box 2320
Dallas, Texas 75221-2320
Express Delivery/Courier
The Bank of New York Mellon
Trust Company, N.A.
Institutional Trust Services
2001 Bryan Street,
9th Floor
Dallas, Texas 75201
By Hand Only
The Bank of New York
Mellon Trust Company, N.A.
Room 234-North Building
Institutional Trust
Securities Window
55 Water Street
New York, New York
10041
THIS NOTICE is issued and given pursuant to the terms and conditions prescribed for
the redemption of said certificates of obligation and pursuant to an ordinance by the City Council
of the City of Plainview, Texas.
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas
Address: 2001 Bryan Street, 1 I th Floor
Dallas, Texas 75201
75822945.2/10909912
D-1
333
Exhibit E
to
Ordinance
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 29 of this Ordinance.
Annual Financial Statements and OAerating Data
The financial information and operating data with respect to the City to be provided
annually in accordance with such Section are as specified (and included in the Appendix or
under the headings of the Official Statement referred to) below:
Annual audited financial statements
Accounting Principles
The accounting principles referred to in such Section are the accounting principles
described in the notes to the financial statements attached to the Official Statement as
Appendix B.
75822945.2 10909912 E-1