HomeMy WebLinkAboutOrd 10-3535ORDINANCE NO. 10 -3535
AN ORDINANCE authorizing the issuance of "CITY OF PLAINVIEW, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM (LIMITED
PLEDGE) REVENUE CERTIFICATES OF OBLIGATION, SERIES
2010 specifying the terms and features of said certificates; providing for
the payment of said certificates of obligation by the levy of an ad valorem
tax upon all taxable property within the City and a limited pledge of the
net revenues from the operation of the City's Waterworks and Sewer
System; and resolving other matters incident and relating to the issuance,
payment, security, sale and delivery of said Certificates, including the
approval and execution of a Paying Agent /Registrar Agreement and the
approval and distribution of an Official Statement; and providing an
effective date.
WHEREAS, notice of the City Council's intention to issue certificates of obligation in
the maximum principal amount of $8,760,000 for the purpose of paying contractual obligations
to be incurred for (i) the construction of public works, to wit: improvements and extensions to
the City's combined Waterworks and Sewer System, including the acquisition of land, rights -of-
way and equipment therefor, and (ii) professional services rendered in connection with the
construction and financing of the foregoing projects, has been duly published in the Plainview
Daily Herald on August 26, 2010 and September 2, 2010, the date the first publication of such
notice being not less than thirty -one (31) days prior to the tentative date stated therein for the
adoption of the ordinance authorizing the issuance of such certificates; and
WHEREAS, no petition protesting the issuance of the certificates of obligation and
bearing valid petition signatures of at least 5% of the qualified electors of the City, has been
presented to or filed with the Mayor, City Secretary or any other official of the City on or prior to
the date of the passage of this ordinance; and
WHEREAS, the City Council hereby finds and determines that the certificates of
obligation described in the aforesaid notice should be issued and sold at this time in the amount
and manner as hereinafter provided; now, therefore,
THE CITY OF PLAINVIEW HEREBY ORDAINS:
SECTION 1: Authorization, Designation, Principal Amount, Purpose. Certificates of
obligation of the City shall be and are hereby authorized to be issued in the aggregate principal
amount of $8,685,000 to be designated and bear the title "CITY OF PLAINVIEW, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM (LIMITED PLEDGE) REVENUE
CERTIFICATES OF OBLIGATION, SERIES 2010" (hereinafter referred to as the
"Certificates for the purpose of paying contractual obligations to be incurred for (i) the
construction of public works, to wit: improvements and extensions to the City's combined
Waterworks and Sewer System, including the acquisition of land, rights -of -way and equipment
therefor, and (ii) professional services rendered in connection with the construction and
financing of the foregoing projects; pursuant to authority conferred by and in conformity with the
90182808.3/11009417
399
400
Constitution and laws of the State of Texas, including V.T.C.A., Local Government Code,
Subchapter C of Chapter 271, as amended.
SECTION 2: Fully Registered Obligations Authorized Denominations Stated
Maturities Date. The Certificates are issuable in fully registered form only; shall be dated
September 15, 2010 (the "Certificate Date and shall be in denominations of $5,000 or any
integral multiple thereof (within a Stated Maturity) and the Certificates shall become due and
payable on March 1 in each of the years and in principal amounts (the "Stated Maturities and
bear interest at the per annum rate(s) in accordance with the following schedule:
Year of Principal Interest
Stated Maturity Amount Rate (s)
2012 70,000 3.00%
2013 360,000 3.00%
2014 380,000 3.00%
2015 380,000 3.00%
2016 395,000 3.00%
2017 395,000 3.00%
2018 410,000 3.00%
2019 430,000 3.00%
2020 430,000 3.00%
2021 450,000 3.00%
2022 465,000 3.00%
2023 480,000 3.10%
2024 515,000 3.20%
2025 535,000 3.30%
2026 550,000 3.40%
2027 570,000 3.50%
2028 600,000 3.60%
2029 620,000 3.70%
2030 650,000 3.80%
The Certificates shall bear interest on the unpaid principal amounts from the Certificate
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), and such interest shall be payable on March 1 and September 1
of each year, commencing March 1, 2012, until maturity or prior redemption.
SECTION 3: Terms of Payment Paying Agent/Registrar. The principal of, premium,
if any, and the interest on the Certificates, due and payable by reason of maturity, redemption or
otherwise, shall be payable only to the registered owners or holders of the Certificates
(hereinafter called the "Holders appearing on the registration and transfer books maintained by
the Paying Agent /Registrar and the payment thereof shall be in any coin or currency of the
United States of America which at the time of payment is legal tender for the payment of public
and private debts, and shall be without exchange or collection charges to the Holders.
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 Certificates is hereby approved and
90182808.3/11009417 2
confirmed. Books and records relating to the registration, payment, transfer and exchange of the
Certificates (the "Security Register shall at all times be kept and maintained on behalf of the
City by the Paying Agent/Registrar, as provided herein and in accordance with the terms and
provisions of a "Paying Agent /Registrar Agreement substantially in the form attached hereto as
Exhibit A, and such reasonable rules and regulations as the Paying Agent /Registrar and the City
may prescribe. The Mayor or Mayor Pro Tem and City Secretary are authorized to execute and
deliver such Agreement in connection with the delivery of the Certificates. The City covenants
to maintain and provide a Paying Agent /Registrar at all times until the Certificates are paid and
discharged, and any successor Paying Agent /Registrar shall be a bank, trust company, financial
institution or other entity qualified and authorized to serve in such capacity and perform the
duties and services of Paying Agent /Registrar. Upon any change in the Paying Agent /Registrar
for the Certificates, the City agrees to promptly cause a written notice thereof to be sent to each
Holder by United States Mail, first class postage prepaid, which notice shall also give the address
of the new Paying Agent/Registrar.
Principal of and premium, if any, on the Certificates shall be payable at the Stated
Maturities or upon prior redemption thereof only upon presentation and surrender of the
Certificates 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 Certificates shall be paid to the
Holders whose names appear in the Security Register at the close of business on the Record Date
(the 15th day of the month next preceding each interest payment date) and shall be paid by the
Paying Agent /Registrar (i) by check sent United States Mail, first class postage prepaid, to the
address of the Holder recorded in the Security Register or (ii) by such other method, acceptable
to the Paying Agent/Registrar, requested by, and at the risk and expense of, the Holder. If the
date for the payment of the principal of or interest on the Certificates shall be a Saturday,
Sunday, a legal holiday, or a day when banking institutions in the city where the Designated
Payment /Transfer Office of the Paying Agent /Registrar is located are authorized by law or
executive order to close, then the date for such payment shall be the next succeeding day which
is not such a Saturday, Sunday, legal holiday, or day when banking institutions are authorized to
close; and payment on such date shall have the same force and effect as if made on the original
date payment was due.
In the event of a nonpayment of interest on a scheduled payment date, and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date will be
established by the Paying Agent/Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be 15 days after the Special Record Date) shall
be sent at least five (5) business days prior to the Special Record Date by United States Mail,
first class postage prepaid, to the address of each Holder appearing on the Security Register at
the close of business on the last business next preceding the date of mailing of such notice.
SECTION 4: Redemption.
(a) Optional Redemption. The Certificates having Stated Maturities on and after
March 1, 2021 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
90182808.3/11009417 3
401
402
Maturity by lot by the Paying Agent /Registrar), on March 1, 2020, or on any date thereafter, at
the redemption price of par plus accrued interest to the date of redemption.
At least forty -five (45) days prior to a redemption date for the Certificates (unless a
shorter notification period shall be satisfactory to the Paying Agent /Registrar), the City shall
notify the Paying Agent /Registrar of the decision to redeem Certificates, the principal amount of
each Stated Maturity to be redeemed, and the date of redemption therefor. The decision of the
City to exercise the right to redeem Certificates shall be entered in the minutes of the governing
body of the City.
(b) Selection of Certificates for Redemption. If less than all Outstanding Certificates
of the same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/
Registrar shall treat such Certificates as representing the number of Certificates Outstanding
which is obtained by dividing the principal amount of such Certificates by $5,000 and shall
select the Certificates to be redeemed within such Stated Maturity by lot.
(c) Notice of Redemption. Not less than thirty (30) days prior to a redemption date
for the Certificates, a notice of redemption shall be sent by United States Mail, first class postage
prepaid, in the name of the City and at the City's expense, to each Holder of a Certificate to be
redeemed in whole or in part at the address of the Holder appearing on the Security Register at
the close of business on the business day next preceding the date of mailing such notice, and any
notice of redemption so mailed shall be conclusively presumed to have been duly given
irrespective of whether received by the Holder.
All notices of redemption shall (i) specify the date of redemption for the Certificates, (ii)
identify the Certificates to be redeemed and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price, (iv) state
that the Certificates, or the portion of the principal amount thereof to be redeemed, shall become
due and payable on the redemption date specified and the interest thereon, or on the portion of
the principal amount thereof to be redeemed, shall cease to accrue from and after the redemption
date, provided moneys sufficient for the payment of such Certificate (or the principal amount
thereof to be redeemed) at the then applicable redemption price are held for the purpose of such
payment by the Paying Agent /Registrar and (v) specify that payment of the redemption price for
the Certificates, or the principal amount thereof to be redeemed, shall be made at the Designated
Payment /Transfer Office of the Paying Agent/Registrar only upon presentation and surrender of
the Certificates. If a Certificate is subject by its terms to prior redemption and has been called
for redemption and notice of redemption has been duly given as hereinabove provided, such
Certificate (or the principal amount thereof to be redeemed) shall become due and payable and
interest thereon shall cease to accrue from and after the redemption date therefor.
(d) Conditional Notice of Redemption. With respect to any optional redemption of
the Certificates, unless certain prerequisites to such redemption required by this Ordinance have
been met and moneys sufficient to pay the principal of and premium, if any, and interest on the
Certificates 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 satisfaction of such prerequisites and receipt of such moneys by the Paying
Agent/Registrar on or prior to the date fixed for such redemption, or upon any prerequisite set
90182808.3/11009417 4
forth in such notice of redemption. If a conditional notice of redemption is given and such
prerequisites to the redemption and sufficient moneys are not received, such notice shall be of no
force and effect, the City shall not redeem such Certificates and the Paying Agent /Registrar shall
give notice, in the manner in which the notice of redemption was given, to the effect that the
Certificates have not been redeemed.
SECTION 5: Registration Transfer Exchange of Certificates Predecessor
Certificates. The Paying Agent/Registrar shall obtain, record, and maintain in the Security
Register the name and address of each and every Holder of the Certificates issued under and
pursuant to the provisions of this Ordinance, or if appropriate, the nominee thereof. Any
Certificate may be transferred or exchanged for Certificates of other authorized denominations
by the Holder, in person or by his duly authorized agent, upon surrender of such Certificate to
the Paying Agent /Registrar for cancellation, accompanied by a written instrument of transfer or
request for exchange duly executed by the Holder or by his duly authorized agent, in form
satisfactory to the Paying Agent/Registrar.
Upon surrender of any Certificate (other than the Initial Certificate(s) authorized in
Section 8 hereof) for transfer at the Designated Payment /Transfer Office of the Paying
Agent /Registrar, the Paying Agent /Registrar shall register and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized denominations
and having the same Stated Maturity and of a like aggregate principal amount as the Certificate
or Certificates surrendered for transfer.
At the option of the Holder, Certificates (other than the Initial Certificate(s) authorized in
Section 8 hereof) may be exchanged for other Certificates of authorized denominations and
having the same Stated Maturity, bearing the same rate of interest and of like aggregate principal
amount as the Certificates surrendered for exchange, upon surrender of the Certificates to be
exchanged at the Designated Payment /Transfer Office of the Paying Agent /Registrar. Whenever
any Certificates are surrendered for exchange, the Paying Agent /Registrar shall register and
deliver new Certificates to the Holder requesting the exchange.
All Certificates issued in any transfer or exchange of Certificates shall be delivered to the
Holders at the Designated Payment /Transfer Office of the Paying Agent/Registrar or sent by
United States Mail, first class postage prepaid, to the Holders, and, upon the registration and
delivery thereof, the same shall be the valid obligations of the City, evidencing the same
obligation to pay, and entitled to the same benefits under this Ordinance, as the Certificates
surrendered in such transfer or exchange.
All transfers or exchanges of Certificates pursuant to this Section shall be made without
expense or service charge to the Holder, except as otherwise herein provided, and except that the
Paying Agent /Registrar shall require payment by the Holder requesting such transfer or exchange
of any tax or other governmental charges required to be paid with respect to such transfer or
exchange.
Certificates cancelled by reason of an exchange or transfer pursuant to the provisions
hereof are hereby defined to be "Predecessor Certificates," evidencing all or a portion, as the
case may be, of the same obligation to pay evidenced by the new Certificate or Certificates
90182808.3/11009417 5
403
404
registered and delivered in the exchange or transfer therefor. Additionally, the term
"Predecessor Certificates" shall include any mutilated, lost, destroyed, or stolen Certificate for
which a replacement Certificate has been issued, registered and delivered in lieu thereof pursuant
to the provisions of Section 20 hereof and such new replacement Certificate shall be deemed to
evidence the same obligation as the mutilated, lost, destroyed, or stolen Certificate.
Neither the City nor the Paying Agent /Registrar shall be required to issue or transfer to an
assignee of a Holder of any Certificate called for redemption, in whole or in part, within forty
five (45) days of the date fixed for the redemption of such Certificate; provided, however, such
limitation on transferability shall not be applicable to an exchange by the Holder of the
unredeemed balance of a Certificate called for redemption in part.
SECTION 6: Book Entry -Only Transfers and Transactions. Notwithstanding the
provisions contained in Sections 3, 4, and 5 hereof relating to the payment, and
transfer /exchange of the Certificates, the City hereby approves and authorizes the use of "Book
Entry- Only" securities clearance, settlement and transfer system provided by The Depository
Trust Company "DTC a limited purpose trust company organized under the laws of the State
of New York, in accordance with the operational arrangements referenced in the Blanket Issuer
Letter of Representation, by and between the City and DTC (the "Depository Agreement
Pursuant to the Depository Agreement and the rules of DTC, the Certificates shall be
deposited with DTC who shall hold said Certificates for its participants (the "DTC Participants
While the Certificates are held by DTC under the Depository Agreement, the Holder of the
Certificates on the Security Register for all purposes, including payment and notices, shall be
Cede Co., as nominee of DTC, notwithstanding the ownership of each actual purchaser or
owner of each Certificate (the `Beneficial Owners being recorded in the records of DTC and
DTC Participants.
In the event DTC determines to discontinue serving as securities depository for the
Certificates or otherwise ceases to provide book -entry clearance and settlement of securities
transactions in general or the City determines that DTC is incapable of properly discharging its
duties as securities depository for the Certificates, the City covenants and agrees with the
Holders of the Certificates to cause Certificates to be printed in definitive form and to provide for
the printed Certificates to be issued and delivered to DTC Participants and Beneficial Owners, as
the case may be. Thereafter, the Certificates in definitive form shall be assigned, transferred and
exchanged on the Security Register maintained by the Paying Agent/Registrar and payment of
such Certificates shall be made in accordance with the provisions of Sections 3,4, and 5 hereof.
SECTION 7: Execution Registration. The Certificates shall be executed on behalf of
the City by the Mayor under its seal reproduced or impressed thereon and countersigned by the
City Secretary. The signature of said officers on the Certificates may be manual or facsimile.
Certificates bearing the manual or facsimile signatures of individuals who are or were the proper
officers of the City on the Certificate Date shall be deemed to be duly executed on behalf of the
City, notwithstanding that one or more of the individuals executing the same shall cease to be
such officer at the time of delivery of the Certificates to the initial purchaser(s) and with respect
to Certificates delivered in subsequent exchanges and transfers, all as authorized and provided in
V.T.C.A., Government Code, Chapter 1201, as amended.
90182808.3/11009417 6
No Certificate shall be entitled to any right or benefit under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Certificate either a certificate of
registration substantially in the form provided in Section 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 Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly certified, registered and delivered.
SECTION 8: Initial Certificate(s). The Certificates herein authorized shall be initially
issued either (i) as a single -fully registered certificate in the total principal amount stated in
Section 1 hereof with principal installments to become due and payable as provided in Section 2
hereof and numbered T -1, or (ii) as multiple fully registered certificates, being one certificate for
each year of maturity in the applicable principal amount and denomination and to be numbered
consecutively from T -1 and upward (hereinafter called the "Initial Certificate(s)") and, in either
case, the Initial Certificate(s) shall be registered in the name of the initial purchaser(s) or the
designee thereof. The Initial Certificate(s) shall be the Certificate(s) submitted to the Office of
the Attorney General of the State of Texas for approval, certified and registered by thc Office of
the Comptroller of Public Accounts of the State of Texas and delivered to the initial purchaser(s).
Any time after the delivery of the Initial Certificate(s), the Paying Agent /Registrar, pursuant to
written instructions from the initial purchaser(s), or the designee thereof, shall cancel the Initial
Certificate(s) delivered hereunder and exchange therefor definitive Certificates of authorized
denominations, Stated Maturities, principal amounts and bearing applicable interest rates for
transfer and delivery to the Holders named at the addresses identified therefor; all pursuant to
and in accordance with such written instructions from the initial purchaser(s), or the designee
thereof, and such other information and documentation as the Paying Agent /Registrar may
reasonably require.
SECTION 9: Forms. (a) Forms Generally. The Certificates, thc Registration Certificate
of the Comptroller of Public Accounts of the State of Texas, the Registration Certificate of
Paying Agent /Registrar, and the form of Assignment to be printed on each of the Certificates,
shall be substantially in the forms set forth in this Section with such appropriate insertions,
omissions, substitutions, and other variations as are permitted or required by this Ordinance and
may have such letters, numbers, or other marks of identification (including identifying numbers
and letters of the Committee on Uniform Securities Identification Procedures of the American
Bankers Association) and such legends and endorsements (including insurance legends in the
event the Certificates, or any maturities thereof, are purchased with insurance and any
reproduction of an opinion of counsel) thereon as may, consistently herewith, be established by
the City or determined by the officers executing such Certificates as evidenced by their
execution. Any portion of the text of any Certificates may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Certificate.
The definitive Certificates and the Initial Certificate(s) shall be printed, lithographed,
engraved, typewritten, photocopied or otherwise reproduced in any other similar manner, all as
determined by the officers executing such Certificates as evidenced by their execution.
90182808.3/11009417 7
405
406
(b) Form of Certificates.
REGISTERED REGISTERED
NO.
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF PLAINVIEW, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM (LIMITED PLEDGE) REVENUE
CERTIFICATE OF OBLIGATION, SERIES 2010
Certificate Date: Interest Rate: Stated Maturity: CUSIP NO:
September 15, 2010 March 1, 20
Registered Owner:
Principal Amount: DOLLARS
The City of Plainview (hereinafter referred to as the "City a body corporate and
municipal corporation in the County of Hale, State of Texas, for value received, acknowledges
itself indebted to and hereby promises to pay to the Registered Owner named above, or the
registered assigns thereof, on the Stated Maturity date 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 Certificate appearing below (unless this Certificate bears a
"Registration Date" as of an interest payment date, in which case it shall bear interest from such
date, or unless the "Registration Date" of this Certificate is prior to the initial interest payment
date in which case it shall bear interest from the Certificate Date) at the per annum rate of
interest 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, 2012,
until maturity or prior redemption. Principal of this Certificate is payable at its Stated Maturity
or on a redemption date to the registered owner hereof, upon presentation and surrender, at the
Designated Payment /Transfer Office of the Paying Agent/Registrar executing the registration
certificate appearing hereon, or its successor; provided, however, while this Certificate is
registered to Cede Co., the payment of the principal upon a partial redemption of the principal
amount hereof may be accomplished without presentation and surrender of this Certificate.
Interest is payable to the registered owner of this Certificate (or one or more Predecessor
Certificates, as defined in the Ordinance hereinafter referenced) whose name appears on the
"Security Register" maintained by the Paying Agent /Registrar at the close of business on the
"Record Date which is the 15th day of the month next preceding each interest payment date,
and interest shall be paid by the Paying Agent /Registrar by check sent United States Mail, first
class postage prepaid, to the address of the registered owner recorded in the Security Register or
by such other method, acceptable to the Paying Agent/Registrar, requested by, and at the risk and
expense of, the registered owner. If the date for the payment of the principal of or interest on the
Certificates shall be a Saturday, Sunday, a legal holiday, or a day when banking institutions in
the city where the Designated Payment /Transfer Office of the Paying Agent /Registrar is located
are authorized by law or executive order to close, then the date for such payment shall be the
90182808.3/11009417 8
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 Certificate shall be without exchange or collection charges to the owner
hereof and in any coin or currency of the United States of America which at the time of payment
is legal tender for the payment of public and private debts.
This Certificate is one of the series specified in its title issued in the aggregate principal
amount of $8,685,000 (herein referred to as the "Certificates for the purpose of paying
contractual obligations to be incurred for (i) the construction of public works, to wit:
improvements and extensions to the City's combined Waterworks and Sewer System, including
the acquisition of land, rights -of -way and equipment therefor, and (ii) professional services
rendered in connection with the construction and financing of the foregoing projects; under and
in strict conformity with the Constitution and laws of the State of Texas, particularly V.T.C.A.,
Local Government Code, Subchapter C of Chapter 271, as amended, and pursuant to an
Ordinance adopted by the City Council of the City (herein referred to as the "Ordinance
The Certificates having Stated Maturities on and after March 1, 2021 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, 2020, or on any date thereafter, at the redemption price of par plus
accrued interest to the date of redemption.
At least thirty (30) days prior to a redemption date, the City shall cause a written notice of
such redemption to be sent by United States Mail, first class postage prepaid, to the registered
owners of each Certificate to be redeemed at the address shown on the Security Register and
subject to the terms and provisions relating thereto contained in the Ordinance. If a Certificate
(or any portion of its principal sum) shall have been duly called for redemption and notice of
such redemption duly given, then upon the redemption date such Certificate (or the portion of its
principal sum to be redeemed) shall become due and payable, and, if moneys for the payment of
the redemption price and the interest accrued on the principal amount to be redeemed to the date
of redemption are held for the purpose of such payment by the Paying Agent /Registrar, interest
shall cease to accrue and be payable from and after the redemption date on the principal amount
redeemed.
In the event a portion of the principal amount of a Certificate is to be redeemed and the
registered owner is someone other than Cede Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender of
such Certificate to the Designated Payment/Transfer Office of the Paying Agent /Registrar, and a
new Certificate or Certificates of like maturity and interest rate in any authorized denominations
provided by the Ordinance for the then unredeemed balance of the principal sum thereof will be
issued to the registered owner, without charge. If a Certificate is selected for redemption, in
whole or in part, the City and the Paying Agent /Registrar shall not be required to transfer such
Certificate to an assignee of the registered owner within forty -five (45) days of the redemption
date therefor; provided, however, such limitation on transferability shall not be applicable to an
exchange by the registered owner of the unredeemed balance of a Certificate redeemed in part.
90182808.3/11009417 9
407
408
With respect to any optional redemption of the Certificates, unless moneys sufficient to
pay the principal of and premium, if any, and interest on the Certificates 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 Certificates and the Paying Agent /Registrar shall give notice, in the manner in which the
notice of redemption was given, to the effect that the Certificates have not been redeemed.
The Certificates are payable from the proceeds of an ad valorem tax levied, within the
limitations prescribed by law, upon all taxable property in the City and are additionally payable
from and equally and ratably secured by a lien on and limited pledge of the Net Revenues (as
defined in the Ordinance) of the City's combined Waterworks and Sewer System (the "Utility
System such lien and pledge being limited to an amount of $1,000 and being junior and
subordinate to the lien on and pledge of such Net Revenues securing the payment of "Prior Lien
Obligations" (identified and defined in the Ordinance) now outstanding and hereafter issued by
the City. In the Ordinance, the City reserves and retains the right to issue Prior Lien Obligations
while the Certificates are outstanding without limitation as to principal amount but subject to any
applicable terms, conditions or restrictions under law or otherwise, as well as the right to issue
Additional Obligations, payable from the same sources as the Certificates, and, together with the
Certificates, equally and ratably secured by a parity lien on and pledge of the Net Revenues of
the Utility System.
Reference is hereby made to the Ordinance, a copy of which is on file in the Designated
Payment /Transfer Office of the Paying Agent /Registrar, and to all the provisions of which the
owner or holder of this Certificate by the acceptance hereof hereby assents, for definitions of
terms; the description of and the nature and extent of the tax levied for the payment of the
Certificates; the Net Revenues of the Utility System pledged to the payment of the principal of
and interest on the Certificates; the nature and extent and manner of enforcement of the pledge;
the terms and conditions relating to the transfer or exchange of this Certificate; the conditions
upon which the Ordinance may be amended or supplemented with or without the consent of the
Holders; the rights, duties, and obligations of the City and the Paying Agent /Registrar; the terms
and provisions upon which the tax levy and the pledge of the Net Revenues of the Utility
System, and the charges and covenants made therein, may be discharged at or prior to the
maturity of this Certificate, and this Certificate deemed to be no longer Outstanding thereunder;
and for the other terms and provisions contained therein. Capitalized terms used herein have the
meanings assigned in the Ordinance.
This Certificate, subject to certain limitations contained in the Ordinance, may be
transferred on the Security Register only upon its presentation and surrender at the Designated
Payment /Transfer Office of the Paying Agent /Registrar, with the Assignment hereon duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the
Paying Agent /Registrar duly executed by, the registered owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or more new fully registered
Certificates of the same Stated Maturity, of authorized denominations, bearing the same rate of
90182808.3/11009417 10
interest, and of the same aggregate principal amount will be issued by the Paying
Agent /Registrar to the designated transferee or transferees.
The City and the Paying Agent /Registrar, and any agent of either, shall treat the
registered owner whose name appears on the Security Register (i) on the Record Date as the
owner entitled to payment of interest hereon, (ii) on the date of surrender of this Certificate as the
owner entitled to payment of principal hereof at its Stated Maturity or upon its prior redemption,
in whole or in part, and (iii) on any other date as the owner for all other purposes, and neither the
City nor the Paying Agent /Registrar, or any agent of either, shall be affected by notice to the
contrary. In the event of nonpayment of interest on a scheduled payment date and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date will be
established by the Paying Agent /Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be 15 days after the Special Record Date) shall
be sent at least five (5) business days prior to the Special Record Date by United States Mail,
first class postage prepaid, to the address of each Holder appearing on the Security Register at
the close of business on the last business day next preceding the date of mailing of such notice.
It is hereby certified, recited, represented and declared that the City is a body corporate
and political subdivision duly organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the issuance of the Certificates is duly
authorized by law; that all acts, conditions and things required to exist and be done precedent to
and in the issuance of the Certificates to render the same lawful and valid obligations of the City
have been properly done, have happened and have been performed in regular and due time, form
and manner as required by the Constitution and laws of the State of Texas, and the Ordinance;
that the Certificates do not exceed any Constitutional or statutory limitation; and that due
provision has been made for the payment of the principal of and interest on the Certificates as
aforestated. In case any provision in this Certificate shall be invalid, illegal, or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby. The terms and provisions of this Certificate and the Ordinance shall be
construed in accordance with and shall be governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the City Council of the City has caused this Certificate to be
duly executed under the official seal of the City as of the Certificate Date.
COUNTERSIGNED:
City Secretary
(City Seal)
90182808.3/11009417
CITY OF PLAINVIEW, TEXAS
Mayor
409
410
(c) Form of Registration Certificate of Comptroller of Public Accounts to appear on
Initial Certificate(s) only.
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
THE STATE OF TEXAS
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
REGISTER NO.
I HEREBY CERTIFY that this Certificate has been examined, certified as to validity and
approved by the Attorney General of the State of Texas, and duly registered by the Comptroller
of Public Accounts of the State of Texas.
WITNESS my signature and seal of office this
Comptroller of Public Accounts
of the State of Texas
(SEAL)
(d) Form of Certificate of Paying Agent/Registrar to appear on Definitive Certificates
only.
REGISTRATION CERTIFICATE OF PAYING AGENT /REGISTRAR
This Certificate has been duly issued and registered under the provisions of the within
mentioned Ordinance; the certificate or certificates of the above entitled and designated series
originally delivered having been approved by the Attorney General of the State of Texas and
registered by the Comptroller of Public Accounts, as shown by the records of the Paying
Agent/Registrar.
The designated office of the Paying Agent /Registrar located in Dallas, Texas, is the
"Designated Payment /Transfer Office" for this Certificate.
Registration Date:
90182808.3/11009417 12
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas,
as Paying Agent /Registrar
By
Authorized Signature
(e) Form of Assignment.
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto (Print
or typewrite name, address, and zip code of transferee:)
(Social Security or other
identifying number the within
Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within
Certificate on the books kept for registration thereof, with full power of substitution in the
premises.
DATED:
Signature guaranteed:
(f) The Initial Certificate(s) shall be in the form set forth in paragraph (b) of this
Section, except that the form of a single fully registered Initial Certificate shall be modified as
follows:
REGISTERED REGISTERED
NO. T -1 $8,685,000
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF PLAINVIEW, TEXAS,
TAX AND WATERWORKS AND SEWER SYSTEM (LIMITED PLEDGE) REVENUE
CERTIFICATE OF OBLIGATION, SERIES 2010
Certificate Date: September 15, 2010
Registered Owner:
ASSIGNMENT
Principal Amount: EIGHT MILLION SIX HUNDRED EIGHTY 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:
90182808.3/11009417 13
NOTICE: The signature on this assignment
must correspond with the name of the
registered owner as it appears on the face of
the within Certificate in every particular.
411
412
PRINCIPAL INTEREST
YEAR INSTALLMENTS RATE
(Information to be inserted from schedule in Section 2 hereof).
(or so much thereof as shall not have been prepaid prior to maturity) and to pay interest on the
unpaid principal amounts hereof from the Certificate Date at the per annum rate(s) of interest
specified above computed on the basis of a 360 -day year of twelve 30 -day months; such interest
being payable on March 1 and September 1 of each year, commencing March 1, 2012, until
maturity or prior redemption. Principal installments of this Certificate are payable at its Stated
Maturity or upon prior redemption to the registered owner hereof by The Bank of New York
Mellon Trust Company, N.A., Dallas, Texas (the "Paying Agent /Registrar upon presentation
and surrender, at its designated offices in Dallas, Texas (the "Designated Payment /Transfer
Office Interest is payable to the registered owner of this Certificate whose name appears on
the "Security Register" maintained by the Paying Agent/Registrar at the close of business on the
"Record Date which is the 15th day of the month next preceding each interest payment date
hereof, and interest shall be paid by the Paying Agent /Registrar by check sent United States
Mail, first class postage prepaid, to the address of the registered owner recorded in the Security
Register or by such other method, acceptable to the Paying Agent /Registrar, requested by, and at
the risk and expense of, the registered owner. If the date for the payment of the principal of or
interest on the Certificates shall be a Saturday, Sunday, a legal holiday, or a day when banking
institutions in the city where the Designated Payment /Transfer Office of the Paying
Agent /Registrar is located are authorized by law or executive order to close, then the date for
such payment shall be the next succeeding day which is not such a Saturday, Sunday, legal
holiday, or day when banking institutions are authorized to close; and payment on such date shall
have the same force and effect as if made on the original date payment was due. All payments of
principal of, premium, if any, and interest on this Certificate shall be without exchange or
collection charges to the owner hereof and in any coin or currency of the United States of
America which at the time of payment is legal tender for the payment of public and private debts.
SECTION 10: Definitions. For purposes of this Ordinance and for clarity with respect to
the issuance of the Certificates herein authorized, and the levy of taxes and appropriation of Net
Revenues therefor, the following words or terms, whenever the same appears herein without
qualifying language, are defined to mean as follows:
(a) The term "Additional Obligations" shall mean tax and revenue obligations
hereafter issued which by their terms are payable from ad valorem taxes and additionally payable
from and secured by a parity lien on and pledge of the Net Revenues of the Utility System of
equal rank and dignity with the lien and pledge securing the payment of Certificates.
(b) The term "Certificates" shall mean the "CITY OF PLAINVIEW, TEXAS, TAX
AND WATERWORKS AND SEWER SYSTEM (LIMITED PLEDGE) REVENUE
CERTIFICATES OF OBLIGATION, SERIES 2010" authorized by this Ordinance.
(c) The term "Certificate Fund" shall mean the special Fund created and established
under the provisions of Section 11 of this Ordinance.
90182808.3/11009417 14
(d) The term "Collection Date" shall mean, when reference is being made to the levy
and collection of annual ad valorem taxes, the date the annual ad valorem taxes levied each year
by the City become delinquent.
(e) The term "Fiscal Year" shall mean the twelve month accounting period used by
the City which may be any twelve consecutive month period established by the City.
(f) The term "Government Securities" shall mean (i) direct noncallable obligations of
the United States of America, including obligations the principal of and interest on which are
unconditionally guaranteed by the United States of America, (ii) noncallable obligations of an
agency or instrumentality of the United States, including obligations unconditionally guaranteed
or insured by the agency or instrumentality and, on the date of their acquisition or purchase by
the City, are rated as to investment quality by a nationally recognized investment rating firm not
less than AAA or its equivalent and (iii) noncallable obligations of a state or an agency or a
county, municipality, or other political subdivision of a state that have been refunded and that, on
the date of their acquisition or purchase by the City, are rated as to investment quality by a
nationally recognized investment rating firm not less than AAA or its equivalent.
(g) The term "Gross Revenues" shall mean all income, receipts and revenues of every
nature derived or received from the operation and ownership (excluding refundable meter
deposits, restricted gifts and grants in aid of construction) of the Utility System, including
earnings and income derived from the investment or deposit of moneys in any special funds or
accounts created and established for the payment and security of the Prior Lien Obligations and
other obligations payable solely from and secured only by a lien on and pledge of the Net
Revenues of the Utility System.
(h) The term "Maintenance and Operating Expenses" shall mean all current expenses
of operating and maintaining the Utility System, including all salaries, labor, materials, repairs
and extensions necessary to render efficient service; provided, however, that only such repairs
and extensions, as in the judgment of the City Council, reasonably and fairly exercised, are
necessary to maintain the operations and render adequate service to the City and the inhabitants
thereof, or such as might be necessary to meet some physical accident or condition which would
otherwise impair obligations payable from Net Revenues shall be deducted in determining "Net
Revenues Depreciation charges shall not be considered Maintenance and Operating Expenses.
Maintenance and Operating Expenses shall include payments under contracts for the purchase of
water supply, treatment of sewage or other materials, goods, services, or facilities for the Utility
System to the extent authorized by law and the provisions of such contract.
(i) The term "Net Revenues" shall mean the Gross Revenues of the Utility System,
with respect to any period, after deducting the Maintenance and Operating Expenses of the
Utility System during such period.
(j) The term "Outstanding"', when used in this Ordinance with respect to Certificates,
means, as of the date of determination, all Certificates theretofore issued and delivered under this
Ordinance, except:
90182804 3;11009417 15
413
414
(1) those Certificates cancelled by the Paying Agent /Registrar or
delivered to the Paying Agent /Registrar for cancellation;
(2) those Certificates deemed to be duly paid by the City in
accordance with the provisions of Section 21 hereof; and
(3) those mutilated, destroyed, lost, or stolen Certificates which have
been replaced with Certificates registered and delivered in lieu thereof as provided in
Section 20 hereof.
(k) The term "Prior Lien Obligations" shall mean obligations now outstanding and
hereafter issued which by the terms of the authorizing ordinance are made payable from and
secured by a lien on and pledge of the Net Revenues of the Utility System ranking prior and
superior to the lien and pledge securing the payment of the Certificates, including, but not
limited to, the outstanding (i) "City of Plainview, Texas, Tax and Waterworks and Sewer Surplus
Revenue Certificates of Obligation, Series 2001" and (ii) "City of Plainview, Texas,
Combination Tax and Revenue Certificates of Obligation, Series 2008
(1) The term "Utility System" shall mean all properties, facilities and plants currently
owned, operated and maintained by the City for the supply, treatment, transmission and
distribution of treated potable water and the collection, treatment and disposal of water carried
wastes, together with all future extensions, improvements, replacements and additions thereto.
SECTION 11: Certificate Fund. For the purpose of paying the interest on and to provide
a sinking fund for the payment, redemption and retirement of the Certificates, there shall be and
is hereby created a special account or fund on the books and records of the City known as the
"SPECIAL SERIES 2010 TAX AND REVENUE CERTIFICATE OF OBLIGATION FUND"
(the "Certificate Fund and all moneys deposited to the credit of such Fund shall be shall be
kept and maintained in a special banking account at the City's depository bank. The Mayor,
Mayor Pro Tem, City Manager, Director of Finance, and City Secretary of the City, individually
or jointly, are hereby authorized and directed to make withdrawals from said Fund sufficient to
pay the principal of and interest on the Certificates as the same become due and payable, and,
shall cause to be transferred to the Paying Agent /Registrar from moneys on deposit in the
Certificate Fund an amount sufficient to pay the amount of principal and/or interest falling due
on the Certificates, such transfer of funds to the Paying Agent /Registrar to be made in such
manner as will cause immediately available funds to be deposited with the Paying
Agent /Registrar on or before the last business day next preceding each interest and principal
payment date for the Certificates.
Pending the transfer of funds to the Paying Agent /Registrar, money in the Certificate
Fund may, at the option of the City, be invested in obligations identified in, and in accordance
with the provisions of the "Public Funds Investment Act" (V.T.C.A., Government Code, Chapter
2256, as amended) relating to the investment of "bond proceeds"; provided that all such
investments shall be made in such a manner that the money required to be expended from said
Fund will be available at the proper time or times. All interest and income derived from deposits
and investments in said Certificate Fund shall be credited to, and any losses debited to, the said
90182808.3/11009417 16
Certificate Fund. All such investments shall be sold promptly when necessary to prevent any
default in connection with the Certificates.
SECTION 12: Tax Levy. To provide for the payment of the "Debt Service
Requirements" on the Certificates being (i) the interest on said Certificates and (ii) a sinking
fund for their redemption at maturity or a sinking fund of 2% (whichever amount shall be the
greater), there shall be and there is hereby levied for the current year and each succeeding year
thereafter while said Certificates or any interest thereon shall remain Outstanding, a sufficient tax
on each one hundred dollars' valuation of taxable property in said City, within the limitations
prescribed by law, adequate to pay such Debt Service Requirements, full allowance being made
for delinquencies and costs of collection; said tax shall be assessed and collected each year and
applied to the payment of the Debt Service Requirements, and the same shall not be diverted to
any other purpose. The taxes so levied and collected shall be paid into the Certificate Fund. The
City Council hereby declares its purpose and intent to provide and levy a tax legally and fully
sufficient to pay the said Debt Service Requirements, it having been determined that the existing
and available taxing authority of the City for such purpose is adequate to permit a legally
sufficient tax in consideration of all other outstanding indebtedness.
Accrued interest received from the purchasers of the Certificates shall be deposited to the
Certificate Fund. In addition, any surplus proceeds from the sale of the Certificates not
expended for authorized purposes shall be deposited in the Certificate Fund, and such amounts
so deposited shall reduce the sums otherwise required to be deposited in said Certificate Fund
from ad valorem taxes.
SECTION 13: Limited Pledge of Revenues. The City hereby covenants and agrees that,
subject to the prior lien on and pledge of the Net Revenues of the Utility System to the payment
and security of Prior Lien Obligations, the Net Revenues of thc Utility System in an aggregate
amount of $1,000 are hereby irrevocably pledged to the payment of the principal of and interest
on the Certificates, and such limited pledge of $1,000 of the Net Revenues of the Utility System
herein made for the payment of the Certificates shall constitute a lien on the Net Revenues of the
Utility System in accordance with the terms and provisions hereof until such time as the City
shall pay all of such $1,000, after which time the pledge shall cease. Furthermore, such lien on
and pledge of the Net Revenues of the Utility System securing the payment of the Certificates
shall be valid and binding and fully perfected from and after the date of adoption of this
Ordinance without physical delivery or transfer or transfer of control of the Net Revenues of the
Utility System, the filing of this Ordinance or any other act; all as provided in Chapter 1208 of
the Texas Government Code "Chapter 1208
Chapter 1208 applies to the issuance of the Certificates and the limited pledge of the Net
Revenues of the Utility System granted by the City under this Section 13, and such pledge is
therefore valid, effective and perfected. If Texas law is amended at any time while the
Certificates are Outstanding such that the limited pledge of thc Net Revenues of the Utility
System granted by the City under this Section 13 is to be subject to the filing requirements of
Chapter 9, Business Commerce Code, then in order to preserve to the registered owners of the
Certificates the perfection of the security interest in said pledge, the City agrees to take such
measures as it determines are reasonable and necessary under Texas law to comply with the
90182808.3/11009417 17
415
416
applicable provisions of Chapter 9, Business Commerce Code and enable a filing to perfect
the security interest in said pledge to occur.
SECTION 14: Utility System Fund. The City hereby covenants and agrees that all Gross
Revenues of the Utility System (excluding earnings from the investment of money held in any
special funds or accounts created for the payment and security of Prior Lien Obligations) shall be
deposited as collected into a fund maintained at an official depository of the City and known on
the books of the City as the "System Fund" (hereinafter called the "System Fund All moneys
deposited to the credit of the System Fund shall be allocated, appropriated and budgeted to the
extent required for the following purposes and in the order of priority shown, to wit:
First: To the payment of Maintenance and Operating Expenses of the Utility
System as defined herein or required by statute to be a first charge on and claim
against the Gross Revenues of the Utility System.
Second: To the payment of all amounts required to be deposited in the special
Funds created and established for the payment, security and benefit of Prior Lien
Obligations in accordance with the terms and provisions of the ordinances
authorizing the issuance of Prior Lien Obligations.
Third: Equally and ratably, to the payment of the limited amounts pledged to the
payment of the Certificates and Additional Obligations, if issued.
Any Net Revenues of the Utility System remaining in the System Fund after satisfying
the foregoing payments, or making adequate and sufficient provision for the payment thereof,
may be appropriated and used for any other City purpose now or hereafter permitted by law.
SECTION 15: Deposits to Certificate Fund. Subject to the provisions of Section 13
hereof, the City hereby covenants and agrees to cause to be deposited in the Certificate Fund
from the pledged Net Revenues in the Utility System Fund the amount thereof pledged to the
payment of the Certificates.
The City covenants and agrees that the amount of pledged Net Revenues of the Utility
System ($1,000), together with other lawfully available revenues appropriated by the City for
payment of the debt service requirements on the Certificates and ad valorem taxes levied,
collected, and deposited in the Certificate Fund for and on behalf of the Certificates, will be an
amount equal to one hundred percent (100 of the amount required to fully pay the interest and
principal due and payable on the Certificates. In addition, any surplus proceeds from the sale of
the Certificates not expended for authorized purposes shall be deposited in the Certificate Fund,
and such amounts so deposited shall reduce the sums otherwise required to be deposited in said
Certificate Fund from ad valorem taxes, the Net Revenues of the Utility System.
SECTION 16: Security of Funds. All moneys on deposit in the funds for which this
Ordinance makes provision (except any portion thereof as may be at any time properly invested)
shall be secured in the manner and to the fullest extent required by the laws of Texas for the
security of public funds, and moneys on deposit in such funds shall be used only for the purposes
permitted by this Ordinance.
90182808.3/11009417 18
SECTION 17: Special Covenants. The City hereby further covenants as follows:
(a) It has the lawful power to pledge the Net Revenues of the Utility System to the
payment of the Certificates in the manner herein contemplated and has lawfully exercised such
power under the Constitution and laws of the State of Texas, including said power existing under
Chapter 1502, V.T.C.A, Government Code, as amended, and Subchapter C of Chapter 271,
V.T.C.A., Local Government Code, as amended.
(b) Other than for the payment of the Prior Lien Obligations and the Certificates, the
Net Revenues of the Utility System have not in any manner been pledged to the payment of any
debt or obligation of the City or of the Utility System.
SECTION 18: Issuance of Prior Lien Obligations and Additional Obligations. The City
hereby expressly reserves the right to hereafter issue Prior Lien Obligations, without limitation as
to principal amount but subject to any terns, conditions or restrictions applicable thereto under
law or otherwise, and such Prior Lien Obligations hereafter issued may be payable, in whole or
in part, from the Net Revenues of the Utility System (without impairment of the obligation of
contract with the Holders of the Certificates) upon such terms and secured in such manner as the
City Council may determine. Additionally, the City reserves the right without any limitations or
restrictions to issue Additional Obligations payable (in whole or in part) from and secured by a
lien on and pledge of the Net Revenues of the Utility System of equal rank and dignity with the
payment of the Certificates.
SECTION 19: Application of Prior Lien Covenants and Agreements. It is the intention
of this governing body and accordingly hereby recognized and stipulated that the provisions,
agreements and covenants contained herein bearing upon the management and operations of the
Utility System, and the administering and application of revenues derived from the operation
thereof, shall to the extent possible be harmonized with like provisions, agreements and
covenants contained in the ordinances authorizing the issuance of the Prior Lien Obligations, and
to the extent of any irreconcilable conflict between the provisions contained herein and in the
ordinances authorizing the issuance of the Prior Lien Obligations, the provisions, agreements and
covenants contained therein shall prevail to the extent of such conflict and be applicable to this
Ordinance but in all respects subject to the priority of rights and benefits, if any, conferred
thereby to thc holders of the Prior Lien Obligations. Notwithstanding the above, any change or
modification affecting the application of revenues derived from the operation of the Utility
System shall not impair the obligation of contract with respect to thc pledge of revenues herein
made for the payment and security of the Certificates.
SECTION 20: Mutilated Destroyed Lost and Stolen Certificates. In case any
Certificate shall be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may
execute and deliver a replacement Certificate of like form and tenor, and in the same
denomination and bearing a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Certificate, or in lieu of and in substitution for such destroyed,
lost or stolen Certificate, only upon the approval of the City and after (i) the filing by the Holder
thereof with the Paying Agent /Registrar of evidence satisfactory to the Paying Agent /Registrar of
the destruction, loss or theft of such Certificate, and of the authenticity of the ownership thereof
and (ii) the furnishing to the Paying Agent/Registrar of indemnification in an amount satisfactory
90182808.3/11009417 19
417
418
to hold the City and the Paying Agent /Registrar harmless. All expenses and charges associated
with such indemnity and with the preparation, execution and delivery of a replacement
Certificate shall be borne by the Holder of the Certificate mutilated, or destroyed, lost or stolen.
Every replacement Certificate issued pursuant to this Section 20 shall be a valid and
binding obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably
with all other Outstanding Certificates; notwithstanding the enforceability of payment by anyone
of the destroyed, lost, or stolen Certificates.
The provisions of this Section 20 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement and payment of mutilated,
destroyed, lost or stolen Certificates.
SECTION 21: Satisfaction of Obligation of City. If the City shall pay or cause to be
paid, or there shall otherwise be paid to the Holders, the principal of, premium, if any, and
interest on the Certificates, at the times and in the manner stipulated in this Ordinance, then the
pledge of taxes levied under this Ordinance, the Net Revenues of the Utility System (to the
extent such pledge of Net Revenues shall not have been discharged or terminated by prior
payment of principal of or interest on the Certificates) and all covenants, agreements, and other
obligations of the City to the Holders shall thereupon cease, terminate, and be discharged and
satisfied.
Certificates or any principal amount(s) thereof shall be deemed to have been paid within
the meaning and with the effect expressed above in this Section when (i) money sufficient to pay
in full such Certificates or the principal amount(s) thereof at maturity or the redemption date
therefor, together with all interest due thereon, shall have been irrevocably deposited with and
held in trust by the Paying Agent /Registrar, or an authorized escrow 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 Certificates, or
the principal amount(s) thereof, on and prior to the Stated Maturity thereof or (if notice of
redemption has been duly given or waived or if irrevocable arrangements therefor acceptable to
the Paying Agent /Registrar have been made) the redemption date thereof. The City covenants
that no deposit of moneys or Government Securities will be made under this Section and no use
made of any such deposit which would cause the Certificates to be treated as "arbitrage bonds"
within the meaning of Section 148 of the Internal Revenue Code of 1986, as amended, or
regulations adopted pursuant thereto.
Any moneys so deposited with the Paying Agent /Registrar, or an authorized escrow
agent, and all income from Government Securities held in trust by the Paying Agent /Registrar, or
an authorized escrow agent, pursuant to this Section which is not required for the payment of the
Certificates, or any principal amount(s) thereof, or interest thereon with respect to which such
moneys have been so deposited shall be remitted to the City or deposited as directed by the City.
Furthermore, any money held by the Paying Agent /Registrar for the payment of the principal of
and interest on the Certificates and remaining unclaimed for a period of three (3) years after the
90182808.3/11009417 20
Stated Maturity, or applicable redemption date, of the Certificates such moneys were deposited
and are held in trust to pay shall upon the request of the City be remitted to the City against a
written receipt therefor. Notwithstanding the above and foregoing, any remittance of funds from
the Paying Agent /Registrar to the City shall be subject to any applicable unclaimed property laws
of the State of Texas.
SECTION 22: Ordinance a Contract Amendments. This Ordinance shall constitute a
contract with the Holders from time to time, be binding on the City, and shall not be amended or
repealed by the City while any Certificates remain Outstanding except as permitted in this
Section and in Section 38 hereof. The City may, without the consent of or notice to any Holders,
from time to time and at any time, amend this Ordinance in any manner not detrimental to the
interests of the Holders, including the curing of any ambiguity, inconsistency, or formal defect or
omission herein. In addition, the City may, with the consent of Holders holding a majority in
aggregate principal amount of the Certificates then Outstanding affected thereby, amend, add to,
or rescind any of the provisions of this Ordinance; provided that, without the consent of all
Holders of Outstanding Certificates, no such amendment, addition, or rescission shall (1) extend
the time or times of payment of the principal of, premium, if any, and interest on the Certificates,
reduce the principal amount thereof, the redemption price, or the rate of interest thereon, or in
any other way modify the terms of payment of the principal of, premium, if any, or interest on
the Certificates, (2) give any preference to any Certificate over any other Certificate, or
(3) reduce the aggregate principal amount of Certificates required to be held by Holders for
consent to any such amendment, addition, or rescission.
SECTION 23: Covenants to Maintain Tax Exempt Status.
(a) Definitions. When used in this Section, the following terms have the following
meanings:
"Closing Date" means the date on which the Certificates are first authenticated and
delivered to the initial purchasers against payment therefor.
"Code" means the 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 Certificates.
"Investment" has the meaning set forth in Section 1.148 -1(b) of the Regulations.
"Nonpurpose Investment" means any investment property, as defined in section 148(b) of
the Code, in which Gross Proceeds of the Certificates are invested and which is not acquired to
carry out the governmental purposes of the Certificates.
"Rebate Amount" has the meaning set forth in Section 1.148 -1(b) of the Regulations.
90182808.3/11009417 21
419
420
"Regulations" means any proposed, temporary, or final Income Tax Regulations issued
pursuant to Sections 103 and 141 through 150 of the Code, and 103 of the Internal Revenue
Code of 1954, which are applicable to the Certificates. Any reference to any specific Regulation
shall also mean, as appropriate, any proposed, temporary or final Income Tax Regulation
designed to supplement, amend or replace the specific Regulation referenced.
"Yield" of (1) any Investment has the meaning set forth in Section 1.148 -5 of the
Regulations and (2) the Certificates has the meaning set forth in Section 1.148 -4 of the
Regulations.
(b) Not to Cause Interest to Become Taxable. The City shall not use, permit the use
of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition,
construction or improvement of which is to be financed directly or indirectly with Gross
Proceeds) in a manner which if made or omitted, respectively, would cause the interest on any
Certificate to become includable in the gross income, as defined in section 61 of the Code, of the
owner thereof for federal income tax purposes. Without limiting the generality of the foregoing,
unless and until the City receives a written opinion of counsel nationally recognized in the field
of municipal bond law to the effect that failure to comply with such covenant will not adversely
affect the exemption from federal income tax of the interest on any Certificate, the City shall
comply with each of the specific covenants in this Section.
(c) No Private Use or Private Payments. Except as permitted by Section 141 of the
Code and the Regulations and rulings thereunder, the City shall at all times prior to the last
Stated Maturity of Certificates:
(1) exclusively own, operate and possess all property the acquisition,
construction or improvement of which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Certificates, and not use or permit the use of
such Gross Proceeds (including all contractual arrangements with terms different
than those applicable to the general public) or any property acquired, constructed
or improved with such Gross Proceeds in any activity carried on by any person or
entity (including the United States or any agency, department and instrumentality
thereof) other than a state or local government, unless such use is solely as a
member of the general public; and
(2) not directly or indirectly impose or accept any charge or other
payment by any person or entity who is treated as using Gross Proceeds of the
Certificates or any property the acquisition, construction or improvement of
which is to be financed or refinanced directly or indirectly with such Gross
Proceeds, other than taxes of general application within the City or interest earned
on investments acquired with such Gross Proceeds pending application for their
intended purposes.
(d) No Private Loan. Except to the extent permitted by Section 141 of the Code and
the Regulations and rulings thereunder, the City shall not use Gross Proceeds of the Certificates
to make or finance loans to any person or entity other than a state or local government. For
purposes of the foregoing covenant, such Gross Proceeds are considered to be "loaned" to a
90182808.3/11009417 22
person or entity if: (1) property acquired, constructed or improved with such Gross Proceeds is
sold or leased to such person or entity in a transaction which creates a debt for federal income tax
purposes; (2) capacity in or service from such property is committed to such person or entity
under a take -or -pay, output or similar contract or arrangement; or (3) indirect benefits, or
burdens and benefits of ownership, of such Gross Proceeds or any property acquired, constructed
or improved with such Gross Proceeds are otherwise transferred in a transaction which is the
economic equivalent of a loan.
(e) Not to Invest at Higher Yield. Except to the extent permitted by Section 148 of
the Code and the Regulations and rulings thereunder, the City shall not at any time prior to the
final Stated Maturity of the Certificates directly or indirectly invest Gross Proceeds in any
Investment (or use Gross Proceeds to replace money so invested), if as a result of such
investment the Yield from the Closing Date of all Investments acquired with Gross Proceeds (or
with money replaced thereby), whether then held or previously disposed of, exceeds the Yield of
the Certificates.
(f) Not Federally Guaranteed. Except to the extent permitted by Section 149(b) of
the Code and the Regulations and rulings thereunder, the City shall not take or omit to take any
action which would cause the Certificates to be federally guaranteed within the meaning of
Section 149(b) of the Code and the Regulations and rulings thereunder.
(g) Information Report. The City shall timely file the information required by
Section 149(e) of the Code with the Secretary of the Treasury on Form 8038 -G or such other
form and in such place as the Secretary may prescribe.
(h) Rebate of Arbitrage Profits. Except to the extent otherwise provided in section
148(f) of the Code and the Regulations and rulings thereunder:
(1) The City shall account for all Gross Proceeds (including all receipts,
expenditures and investments thereof) on its books of account separately and
apart from all other funds (and receipts, expenditures and investments thereof)
and shall retain all records of accounting for at least six years after the day on
which the last outstanding Certificate is discharged. However, to the extent
permitted by law, the City may commingle Gross Proceeds of the Certificates
with other money of the City, provided that the City separately accounts for each
receipt and expenditure of Gross Proceeds and the obligations acquired therewith.
(2) Not less frequently than each Computation Date, the City shall
calculate the Rebate Amount in accordance with rules set forth in section 148(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 Certificates until six years after the final Computation Date.
(3) As additional consideration for the purchase of the Certificates by the
Purchaser 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
90182808.3/11009417 23
421
422
purposes, the City shall pay to the United States out of the construction fund or
other appropriate fund, or if permitted by Texas statute, regulation or opinion of
the Attorney General of the State of Texas, the Certificate Fund, the amount that
when added to the future value of previous rebate payments made for the
Certificates equals (i) in the case of a Final Computation Date as defined in
Section 1.148- 3(e)(2) of the Regulations, one hundred percent (100 of the
Rebate Amount on such date; and (ii) in the case of any other Computation Date,
ninety percent (90 of the Rebate Amount on such date. In all cases, the rebate
payments shall be made at the times, in the installments, to the place and in the
manner as is or may be required by section 148(f) of the Code and the
Regulations and rulings thereunder, and shall be accompanied by Form 8038 -T or
such other forms and information as is or may be required by Section 148(f) of
the Code and the Regulations and rulings thereunder.
(4) The City shall exercise reasonable diligence to assure that no errors
are made in the calculations and payments required by paragraphs (2) and (3), and
if an error is made, to discover and promptly correct such error within a
reasonable amount of time thereafter (and in all events within one hundred eighty
(180) days after discovery of the error), including payment to the United States of
any additional Rebate Amount owed to it, interest thereon, and any penalty
imposed under Section 1.148 3(h) of the Regulations.
(i) Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the Certificates, enter into any transaction that
reduces the amount required to be paid to the United States pursuant to Subsection (h) of this
Section because such transaction results in a smaller profit or a larger loss than would have
resulted if the transaction had been at arm's length and had the Yield of the Certificates not been
relevant to either party.
(j) Elections. The City hereby directs and authorizes the Mayor, Mayor Pro Tem,
City Manager, Director of Finance and City Secretary, individually or jointly, to make elections
permitted or required pursuant to the provisions of the Code or the Regulations, as they deem
necessary or appropriate in connection with the Certificates, in the Certificate as to Tax
Exemption or similar or other appropriate certificate, form or document.
(k) Qualified Tax Exempt Obligations. In accordance with the provisions of
paragraph (3) of subsection (b) of Section 265 of the Code, the City hereby designates the
Certificates to be "qualified tax exempt obligations" in that the Certificates are not "private
activity bonds" as defined in the Code and the reasonably anticipated amount of "qualified tax
exempt obligations" to be issued by the City (including all subordinate entities of the City) for
the calendar year 2010 will not exceed $30,000,000.
SECTION 24: Sale of Certificates. Pursuant to a public sale for the Certificates, the bid
submitted by First Southwest Company (herein referred to as the "Purchaser is declared to be
the best bid received producing the lowest true interest cost rate to the City; such bid is hereby
accepted and incorporated herein by reference as a part of this Ordinance for all purposes and the
90182808.3/11009417 24
sale of the Certificates to said Purchaser at the price of par and accrued interest to the date of
delivery, plus a premium of $1,889.66 is hereby approved and confirmed. Delivery of the
Certificates to the Purchaser shall occur as soon as possible upon payment being made therefor
in accordance with the terms of sale.
SECTION 25: Official Statement. The use of the Preliminary Official Statement, dated
September 14, 2010, in the offering and sale of the Certificates is hereby ratified, confirmed and
approved in all respects, and the City Council hereby finds that the information and data
contained in said Preliminary Official Statement pertaining to the City and its financial affairs is
true and correct in all material respects and no material facts have been omitted therefrom which
are necessary to make the statements therein, in light of the circumstances under which they were
made, not misleading. The final Official Statement, which reflects the terms of sale (together
with such changes approved by the Mayor, Mayor Pro Tem, City Manager, Director of Finance
and City Secretary, any one or more of said officials, shall be and is hereby in all respects
approved and the Purchaser is hereby authorized to use and distribute said final Official
Statement, dated September 28, 2010, in the reoffering, sale and delivery of the Certificates to
the public.
SECTION 26: Proceeds of Sale. The proceeds of sale of the Certificates, excluding the
accrued interest received from the Purchaser, premium in the amount of $1,889.66 and amounts
to pay costs of issuance, shall be deposited in a construction fund maintained at the City's
depository bank. Pending expenditure for authorized projects and purposes, such proceeds of
sale may be invested in authorized investments in accordance with the provisions of V.T.C.A.,
Government Code, Chapter 2256, as amended, including specifically guaranteed investment
contracts permitted in V.T.C.A., Section 2256.015, et seq, and any investment earnings realized
may be expended for such authorized projects and purposes or deposited in the Certificate Fund
as shall be determined by the City Council. Accrued interest received as well as all surplus
proceeds of sale of the Certificates, including investment earnings, remaining after completion of
all authorized projects or purposes shall be deposited to the credit of the Certificate Fund. The
premium in the above stated amount will be deposited to the Certificate Fund.
SECTION 27: Control and Custody of Certificates. The Mayor of the City shall be and is
hereby authorized to take and have charge of all necessary orders and records pending the sale of
the Certificates, the investigation by the Attorney General of the Statc of Texas, including the
printing and supply of definitive Certificates, and shall take and have charge and control of the
Initial Certificate(s) pending the approval thereof by the Attorney General, the registration
thereof by the Comptroller of Public Accounts and the delivery thereof to the Purchaser.
SECTION 28: Notices to Holders Waiver. Wherever this Ordinance provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to
the address of each Holder appearing in the Security Register at the close of business on the
business day next preceding the mailing of such notice.
In any case where notice to Holders is given by mail, neither the failure to mail such
notice to any particular Holders, nor any defect in any notice so mailed, shall affect the
sufficiency of such notice with respect to all other Certificates. Where this Ordinance provides
90182808.3/11009417 25
423
424
for notice in any manner, such notice may be waived in writing by the Holder entitled to receive
such notice, either before or after the event with respect to which such notice is given, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Paying Agent /Registrar, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 29: Cancellation. All Certificates surrendered for payment, redemption,
transfer, exchange, or replacement, if surrendered to the Paying Agent /Registrar, shall be
promptly cancelled by it and, if surrendered to the City, shall be delivered to the Paying
Agent/Registrar and, if not already cancelled, shall be promptly cancelled by the Paying
Agent/Registrar. The City may at any time deliver to the Paying Agent/Registrar for
cancellation any Certificates previously certified or registered and delivered which the City may
have acquired in any manner whatsoever, and all Certificates so delivered shall be promptly
cancelled by the Paying Agent /Registrar. All cancelled Certificates held by the Paying
Agent /Registrar shall be returned to the City.
SECTION 30: Bond Counsel's Opinion. The Purchaser's obligation to accept delivery of
the Certificates is subject to being furnished a final opinion of Fulbright Jaworski L.L.P.,
Dallas, Texas, approving the Certificates as to their validity, said opinion to be dated and
delivered as of the date of delivery and payment for the Certificates. An executed counterpart of
said opinion shall accompany the global certificates deposited with The Depository Trust
Company or a reproduction thereof shall be printed on the definitive Certificates in the event the
book entry only system shall be discontinued.
SECTION 31: CUSIP Numbers. CUSIP numbers may be printed or typed on the
definitive Certificates. It is expressly provided, however, that the presence or absence of CUS1P
numbers on the definitive Certificates shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Certificates as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Certificates.
SECTION 32: Benefits of Ordinance. Nothing in this Ordinance, expressed or implied, is
intended or shall be construed to confer upon any person other than the City, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by
reason of this Ordinance or any provision hereof, and this Ordinance and all its provisions is
intended to be and shall be for the sole and exclusive benefit of the City, the Paying
Agent /Registrar and the Holders.
SECTION 33: Inconsistent Provisions. All ordinances, orders or resolutions, or parts
thereof, which are in conflict or inconsistent with any provision of this Ordinance are hereby
repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain
controlling as to the matters contained herein.
SECTION 34: Governing Law. This Ordinance shall be construed and enforced in
accordance with the laws of the State of Texas and the United States of America.
SECTION 35: Effect of Headings. The Section headings herein are for convenience of
reference only and shall not affect the construction hereof
90182808.3/11009417 26
SECTION 36: Construction of Terms. If appropriate in the context of this Ordinance,
words of the singular number shall be considered to include the plural, words of the plural
number shall be considered to include the singular, and words of the masculine, feminine or
neuter gender shall be considered to include the other genders.
SECTION 37: Severability. If any provision of this Ordinance or the application thereof
to any circumstance shall be held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless be valid, and the City Council
hereby declares that this Ordinance would have been enacted without such invalid provision.
SECTION 38: Continuing Disclosure Undertaking.
(a) Definitions. As used in this Section, the following terms have the meanings
ascribed to such terms below:
"MSRB" means the Municipal Securities Rulemaking Board.
"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 annually update, within six months after the end
of each fiscal year (beginning with the fiscal year ending September 30, 2010) financial
information and operating data with respect to the City of the general type included in the
Official Statement authorized in Section 25 hereof and described in Exhibit B 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 B hereto, or such
other accounting principles as the City may be required to employ from time to time pursuant to
Texas 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 audited financial
statements are not available by the required time, the City will provide unaudited financial
information of the type included in the Official Statement by the required time and audited
financial statements when and if such audited financial statements become available.
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 Certificates, if such event is material within the
meaning of the federal securities laws:
90182808.3/11009417 27
425
426
(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 Certificates;
(7) Modifications to rights of holders of the Certificates;
(8) Certificate calls;
(9) Defeasances;
(10) Release, substitution, or sale of property securing repayment of the Certificates;
and
(11) 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) Filings 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 for so long as, but only for so long
as, the City remains an "obligated person" with respect to the Certificates within the meaning of
the Rule, except that the City in any event will give the notice required by subsection (c) of this
Section of any Certificate calls and defeasance that cause the City to be no longer such an
"obligated person."
The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Certificates, and nothing in this Section, express or implied, shall give any benefit
or any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the City's financial results, condition, or prospects or hereby undertake to update
any information provided in accordance with this Section or otherwise, except as expressly
provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Certificates at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER
OR BENEFICIAL OWNER OF ANY CERTIFICATE OR ANY OTHER PERSON, IN
CONTRACT OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM
ANY BREACH BY THE CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS
PART, OF ANY COVENANT SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND
REMEDY OF ANY SUCH PERSON, IN CONTRACT OR TORT, FOR OR ON ACCOUNT
90182808.3/11009417 28
OF ANY SUCH BREACH SHALL BE LIMITED TO AN ACTION FOR MANDAMUS OR
SPECIFIC PERFORMANCE.
No default by the City in observing or performing its obligations under this Section shall
constitute a breach of or default under this Ordinance for purposes of any other provision of this
Ordinance.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
Notwithstanding anything herein to the contrary, the provisions of this Section may be
amended by the City from time to time to adapt to changed circumstances that arise 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 Certificates in the primary offering of the
Certificates in compliance with the Rule, taking into account any amendments or interpretations
of the Rule to the date of such amendment, as well as such changed circumstances, and (2) either
(a) the Holders of a majority in aggregate principal amount (or any greater amount required by
any other provision of this Ordinance that authorizes such an amendment) of the Outstanding
Certificates consent to such amendment or (b) a Person that is unaffiliated with the City (such as
nationally recognized bond counsel) determines that such amendment will not materially impair
the interests of the Holders and beneficial owners of the Certificates. The provisions of this
Section may also be amended from time to time or repealed by the City if the SEC amends or
repeals the applicable provisions of the Rule or a court of final jurisdiction determines that such
provisions are invalid, but only if and to the extent that reservation of the City's right to do so
would not prevent underwriters of the initial public offering of the Certificates from lawfully
purchasing or selling Certificates in such offering. If the City so amends the provisions of this
Section, it shall include with any amended financial information or operating data next provided
pursuant to subsection (b) of this Section an explanation, in narrative form, of the reasons for the
amendment and of the impact of any change in the type of financial information or operating
data so provided.
SECTION 39: Further Procedures. The Mayor, Mayor Pro Tem, City Manager, Director
of Finance and City Secretary of the City and all other officers, employees and agents of the
City, and each of them, shall be and they are hereby expressly authorized, empowered and
directed from time to time and at any time to do and perform all such acts and things and to
execute, acknowledge and deliver in the name and under the seal of the City and on behalf of the
City all agreements, instruments, or such other documents, whether mentioned herein or not, as
may be necessary or desirable in order to carry out the terms and provisions of this Ordinance,
the initial sale and delivery of the Certificates, and the Paying Agent/Registrar Agreement. In
addition, prior to the initial delivery of the Certificates, the Mayor, Mayor Pro Tem, City
Manager, Director of Finance and /or its Bond Counsel are hereby authorized and directed to
approve any changes or corrections to this Ordinance or to any of the instruments authorized and
approved by this Ordinance: (i) in order to cure any ambiguity, formal defect, or omission in this
Ordinance or such other document; or (ii) as requested by the Attorney General or his
representative to obtain the approval of the Certificates by the Attorney General and if such
officer or counsel determines that such ministerial changes are consistent with the intent and
90182808.3/11009417 29
427
428
purpose of this Ordinance, which determination shall be final. In the event that any officer of the
City whose signature shall appear on any document shall cease to be such officer before the
delivery of such document, such signature nevertheless shall be valid and sufficient for all
purposes the same as if such officer had remained in office until such delivery.
SECTION 40: Incorporation of Findings and Determinations. The findings and
determinations of the City Council contained in the preamble hereof are hereby incorporated by
reference and made a part of this Ordinance for all purposes as if the same were restated in full in
this Section.
SECTION 41: 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 42: Effective Date. This Ordinance shall take effect and be in full force from
and after its final adoption on the date shown below in accordance with V.T.C.A., Government
Code, Section 1201.028, as amended.
[remainder of page left blank intentionally]
90182808.3/11009417 30
PASSED ON FIRST READING, September 23, 2010.
PASSED ON SECOND READING AND FINALLY ADOPTED, this September 28, 2010.
ATTEST:
ALIA'
City Secretary
(City Seal)
/4
CITY OF PLAINVIEW, TEXAS
90182808.3111009417 [signature page of Ordinance]
429
430
90182808.3/11009417
EXHIBIT A
PAYING AGENT/REGISTRAR AGREEMENT
A -1
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT is entered into as of September 28, 2010 (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 "Issuer"),
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the issuance of its "City of
Plainview, Texas, Tax and Waterworks and Sewer System (Limited Pledge) Revenue
Certificates of Obligation, Series 2010" (the "Securities dated September 15, 2010, such
Securities scheduled to be delivered to the initial purchasers thereof on or about October 26,
2010; 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:
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.
90186384.1/11009417
ARTICLE ONE
APPOINTMENT OF BANK AS PAYING AGENT AND REGISTRAR
431
432
In addition, the Issuer agrees to reimburse the Bank upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Bank in accordance with any of
the provisions hereof (including the reasonable compensation and the expenses and
disbursements of its agents and counsel).
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
90186384.1/11009417 2
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
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.
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
90186384.1/11009417
ARTICLE THREE
PAYING AGENT
Section 3.01 Duties of Paving A:;ent. 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:
Express Delivery Only
The Bank of New York Mellon
Trust Company, N.A.
Global Corporate Trust
2001 Bryan Street, 9 Floor
Dallas, Texas 75201
By Hand Only
The Bank of New York Mellon
Trust Company, N.A.
Global Corporate Trust
Corporate Trust Window
101 Barclay Street, 1 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.
433
434
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.
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.
90186384.1011009417 4
Section 4.04 List of Security Holders. The Bank will provide the Issuer at any time
requested by the Issuer, upon payment of the required fee, a copy of the information contained in
the Security Register. The Issuer may also inspect the information contained in the Security
Register at any time the Bank is customarily open for business, provided that reasonable time is
allowed the Bank to provide an up -to -date listing or to convert the information into written form.
The Bank will not release or disclose the contents of the Security Register to any person
other than to, or at the written request of, an authorized officer or employee of the Issuer, except
upon receipt of a court order or as otherwise required by law. Upon receipt of a court order and
prior to the release or disclosure of the contents of the Security Register, the Bank will notify the
Issuer so that the Issuer may contest the court order or such release or disclosure of the contents
of the Security Register.
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.
90186384.1/11009417
435
436
Section 5.02 Reliance on Documents, Etc.
(a) The Bank may conclusively rely, as to the truth of the statements and correctness
of the opinions expressed therein, on certificates or opinions furnished to the Bank.
(b) The Bank shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Bank was negligent in ascertaining the
pertinent facts.
(c) No provisions of this Agreement shall require the Bank to expend or risk its own
funds or otherwise incur any financial liability for performance of any of its duties hereunder, or
in the exercise of any of its 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 e-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.
90186384.1/11009417 6
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 Agent/Registrar, or any other agent.
Section 5.05 Moneys Held by Bank Paying Agent Account/Collateralization. A
paying agent account shall at all times be kept and maintained by the Bank for the receipt,
safekeeping, and disbursement of moneys received from the Issuer 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 office of the Issuer is located, and agree that service of process by certified or
registered mail, return receipt requested, to the address referred to in Section 6.03 of this
Agreement shall constitute adequate service. The Issuer and the Bank further agree that the
Bank has the right to file a Bill of Interpleader in any court of competent jurisdiction in the State
of Texas to determine the rights of any Person claiming any interest herein.
90186384.1/11009417 7
437
438
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.
Section 5.08 DTC Services. It is hereby represented and warranted that, m 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 6.06 Severability. In case any provision herein shall be invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 6.07 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.
90186384.1/11009417
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.
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
Agent/Registrar. 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 Agent/Registrar designated and
appointed by the Issuer.
The provisions of Section 1.02 and of Article Five shall survive and remain in full force
and effect following the termination of this Agreement.
Section 6.12 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.]
90186384.1/11009417 9
439
440
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
Attest:
Title:
Attest:
City Secretary
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., Dallas, Texas
By:
Title:
Address: 2001 Bryan Street, 11 Floor
Dallas, Texas 75201
CITY OF PLAINVIEW, TEXAS
Address: 901 Broadway
Plainview, Texas 79072
90186384.1/11009417 Signature Page to Paying Agent/Registrar Agreement
By:
Mayor
90186384.1/11009417
ANNEX A
A -1
441
442
EXHIBIT B
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION AND OPERATING DATA
The following information is referred to in Section 38 of this Ordinance.
Annual Financial Information and Operating Data
The financial information and operating data with respect to the City to be provided
annually in accordance with such Section are as specified (and included in the Appendix or
under the headings of the Official Statement referred to) below:
1. The financial statements of the City appended to the Official
Statement as Appendix B for the most recently concluded fiscal year.
2. The information contained in Tables 1 through 6 and 8 through 15
in the Official Statement.
Accounting Principles
The accounting principles referred to in such Section are the generally accepted
accounting principles as applicable to governmental units as prescribed by The Governmental
Accounting Standards Board.
90182808.3/11009417