HomeMy WebLinkAboutOrdinance - 10152-1999 - Tax And Sewer System Surplus 1999 - 03/25/1999First Reading
Item No. 40
March 25, 1999
ORDINANCE NO. 10152
Second Reading
Item No. 40
April 8, 1999
AN ORDINANCE authorizing the issuance of "CITY OF LUBBOCK, TEXAS, TAX
AND SEWER SYSTEM SURPLUS REVENUE CERTIFICATES OF
OBLIGATION, SERIES 1999"; 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 lien
on and pledge of the net revenues from the operation of the City's Sewer
System; and resolving other matters incident and related to the issuance,
sale, security, payment and delivery of said certificates, including the
approval of a Paying Agent/Registrar Agreement and the approval and
distribution of an Official Statement pertaining thereto; and providing an
effective date.
WHEREAS, notice of the City Council's intention to issue certificates of obligation in the
maximum principal amount of $6,100,000 for the purpose of paying contractual obligations to be
incurred for (i) improvements and extensions to the City's Sewer System, including the purchase
of land for the irrigation of effluent, and (ii) professional services rendered in connection with such
project and the financing thereof, has been duly published in the Lubbock Avalanche-Journal, a
newspaper hereby found and determined to be of general circulation in the City of Lubbock, Texas,
on February 14. 1999 and February 21.1999 the date of the first publication of such notice being
not less than fifteen (15) days prior to the tentative date stated therein for the passage of this
Ordinance; and
WHEREAS, no petition, protesting the issuance of such certificates and bearing valid
petition signatures of at least 5% of the qualified voters of the City, has been filed with the City
Secretary, any member of the Council or any other official of the City on or prior to the date of the
passage of this Ordinance; and
WHEREAS, the Council hereby finds and determines that all of the certificates of obligation
described in such notice should be issued and sold at this time; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1: Authorization-Designation-Principal Amount-Purcose. Certificates of
obligation of the City shall be and are hereby authorized to be issued in the aggregate principal
amount of $6,100,000 to be designated and bear the title "CITY OF LUBBOCK, TEXAS, TAX AND
SEWER SYSTEM SURPLUS REVENUE CERTIFICATES OF OBLIGATION, SERIES 1999" (the
"Certificates"), for the purpose of paying contractual obligations to be incurred for (i) improvements
and extensions to the City's Sewer System, including the purchase of land for the irrigation of
effluent, and (ii) professional services rendered in connection with such project and the financing
thereof, pursuant to authority conferred by and in conformity with the Constitution and laws of the
State of Tex~s. including V.T.C.A., Local Government Code, Subchapter C of Chapter 271.
SECTION 2: Fully Registered Obligations -Authorized Denominations-Stated
Maturities-Date. The Certificates are issuable in fully registered form only; shall be dated April 1,
1999 (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
February 15 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
2000 $305,000 5.00%
2001 305,000 5.00%
2002 305,000 5.00%
2003 305,000 5.00%
2004 305,000 5.00%
2005 305,000 5.00%
2006 305,000 4.95%
2007 305,000 4.15%
2008 305,000 4.25%
2009 305,000 4.35%
2010 305,000 4.45%
2011 305,000 4.55%
2012 305,000 4.65%
2013 305,000 4.70%
2014 305,000 4.75%
2015 305,000 4.80%
2016 305,000 4.90%
2017 305,000 5.00%
2018 305,000 5.00%
2019 305,000 5.00%
The Certificates shall bear interest on the unpaid principal amounts from the Certificate
Date at the per annum rate(s) shown above in this Section (calculated on the basis of a 360-day
year of twelve 30-day months). Interest on the Certificates shall be payable on February 15 and
August 15 in each year, commencing February 15, 2000.
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 Chase Bank of Texas, National Association to serve as
Paying Agent/Registrar for the Certificates is hereby approved and confirmed. Books and records
relating to the registration, payment, exchange and transfer of the Certificates (the "Security
Register'') shall at all times be kept and maintained on behalf of the City by the Paying
Agent/Registrar, all as provided herein, in accordance with the terms and provisions of a "Paying
Agent/Registrar Agreement", substantially in the form attached hereto as Exhibit A and such
reasonable rules and regulations as the Paying Agent/Registrar and the City may prescribe. The
Mayor and City Secretary of the City are hereby authorized to execute and deliver such Agreement
in connection with the delivery of the Certificates. The City covenants to maintain and provide a
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Paying Agent/Registrar at all times until the Certificates are paid and discharged, and any
successor Paying Agent/Registrar shall be a bank, trust company, financial institution or other entity
qualified and authorized to serve in such capacity and perform the duties and services of Paying
Agent/Registrar. Upon any change in the Paying Agent/Registrar for the Certificates, the City
agrees to promptly cause a written notice thereof to be sent to each Holder by United States Mail,
first class postage prepaid, which notice shall also give the address of the new Paying
Agent/Registrar.
Principal of and premium, if any, on the Certificates shall be payable at the Stated
Maturities or the redemption thereof only upon presentation and surrender of the Certificates to the
Paying Agent/Registrar at its designated offices in Dallas, Texas (the "Designated
Payment/Transfer Office"). Interest on the Certificates shall be paid by the Paying Agent/Registrar
to the Holders whose name appears in the Security Register at the close of business on the Record
Date (the last business day of the month next preceding each interest payment date) and payment
of such interest shall be (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 February 15, 2010, shall be subject to redemption prior to maturity, at the
option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple thereof
(and if within a Stated Maturity by lot by the Paying Agent/Registrar), on February 15, 2009 or on
any date thereafter at the redemption price of par plus accrued interest to the date of redemption.
(b) Exercise of Redemption Option. At least forty-five (45) days prior to a redemption
date for the Certificates (unless a shorter notification period shall be satisfactory to the Paying
Agent/Registrar), the City shall notify the Paying Agent/Registrar of the decision to redeem
Certificates, the principal amount of each Stated Maturity to be redeemed, and the date of
redemption therefor. The decision of the City to exercise the right to redeem Certificates shall be
entered in the minutes of the governing body of the City.
Ordinance #1 0152
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(c) Selection of Certificates for Redemption. If less than all Outstanding Certificates of
the same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar
shall treat such Certificates as representing the number of Certificates Outstanding which is
obtained by dividing the principal amount of such Certificates by $5,000 and shall select the
Certificates, or principal amount thereof, to be redeemed within such Stated Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date for
the 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, 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 thereof by the Holder. If a Certificate
is subject by its terms to prior redemption and has been called for redemption and notice of
redemption thereof has been duly given as hereinabove provided, such 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; provided moneys sufficient for the payment
of such Certificate (or of the principal amount thereof to be redeemed) at the then applicable
redemption price are held for the purpose of such payment by the Paying Agent/Registrar.
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 owner of the Certificates issued under and pursuant to the
provisions of this Ordinance, or if appropriate, the nominee thereof. Any Certificate may be
transferred or exchanged for Certificates of other authorized denominations by the Holder, in
person or by his duly authorized agent, upon surrender of such Certificate to the Paying
Agent/Registrar for cancellation, accompanied by a written instrument of transfer or request for
exchange duly executed by the Holder or by his duly authorized agent, in form satisfactory to the
Paying Agent/Registrar.
Upon surrender of any Certificate 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 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
Ordinance #10152
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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 canceled by reason of an exchange or transfer pursuant to the provisions
hereof are hereby defined to be "Predecessor Certificates," evidencing all or a portion, as the case
may be, of the same obligation to pay evidenced by the new Certificate or Certificates registered
and delivered in the exchange or transfer therefor. Additionally, the term "Predecessor Certificates"
shall include any mutilated, lost, destroyed, or stolen Certificate for which a replacement Certificate
has been issued, registered and delivered in lieu thereof pursuant to the provisions of Section 23
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 any Certificate called for redemption, in whole or in part, within 45 days of the
date fixed for the redemption of such Certificate; provided, however, such limitation on
transferability shall not be applicable to an exchange by the Holder of the unredeemed balance of
a Certificate called for redemption in part.
SECTION 6: Book-Entry Only Transfers and Transactions. Notwithstanding the provisions
contained in Sections 3, 4 and 5 hereof relating to the payment and transfer/exchange of the
Certificates, the City hereby approves and authorizes the use of "Book-Entry Only" securities
clearance, settlement and transfer system provided by The Depository Trust Company (DTC), a
limited purpose trust company organized under the laws of the State of New York, in accordance
with the operational arrangements referenced in the Blanket Issuer Letter of Representations by
and between the City and DTC (the "Depository Agreement").
Pursuant to the Depository Agreement and the rules of DTC, the Certificates shall be
deposited with DTC who shall hold said Certificates for its participants (the "DTC Participants") and,
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.
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In the event DTC determines to discontinue serving as securities depository for the
Certificates or otherwise ceases to provide book-entry clearance and settlement of securities
transactions in general or the City determines that DTC is incapable of properly discharging its
duties as securities depository for the Certificates, the City covenants and agrees with the Holders
of the Certificates to cause Certificates to be printed in definitive form and provide for the Certificate
certificates to be issued and delivered to DTC Participants and Beneficial Owners, as the case may
be. Thereafter, the Certificates in definitive form shall be assigned, transferred and exchanged on
the Security Register maintained by the Paying Agent/Registrar and payment of such Certificates
shall be made in accordance with the provisions of Sections 3, 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 the
Bond Procedures Act of 1981, as amended.
No Certificate shall be entitled to any right or benefrt under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Certificate either a certificate of
registration substantially in the form provided in Section 9C, manually executed by the Comptroller
of Public Accounts of the State of Texas, or his duly authorized agent, or a certificate of registration
substantially in the form provided in Section 90, 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 CertificateCsl. The Certificates herein authorized shall be initially
issued either (i) as a single fully registered certificate in the total principal amount of $6,100,000
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 Certificates submitted to the Office of the Attorney General of the
State of Texas for approval, certified and registered by the Office of the Comptroller of Public
Accounts of the State of Texas and delivered to the initial purchaser(s). Any time after the delivery
of the Initial Certificate(s), the Paying Agent/Registrar, pursuant to written instructions from the
initial purchaser(s), or the designee thereof, shall cancel the Initial Certificate(s) delivered
hereunder and exchange therefor definitive Certificates of authorized denominations, Stated
Maturities, principal amounts and bearing applicable interest rates for transfer and delivery to the
Holders named at the addresses identified therefor; all pursuant to and in accordance with such
written instructions from the initial purchaser(s), or the designee thereof, and such other information
and documentation as the Paying Agent/Registrar may reasonably require.
Ordinance #1 0152
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SECTION 9: Forms. A. Forms Generally. The Certificates, the Registration Certificate
of the Comptroller of Public Accounts of the State of Texas, the Registration Certificate of Paying
Agent/Registrar, and the form of Assignment to be printed on each of the Certificates, shall be
substantially in the forms set forth in this Section with such appropriate insertions, omissions,
substitutions, and other variations as are permitted or required by this Ordinance and may have
such letters, numbers, or other marks of identification (including identifying numbers and letters of
the Committee on Uniform Securities Identification Procedures of the American Bankers
Association) and such legends and endorsements (including insurance legends in the event the
Certificates, or any maturities thereof, are purchased with insurance and any reproduction of an
opinion of counsel) thereon as may, consistently herewith, be established by the City or determined
by the officers executing such Certificates as evidenced by their execution. Any portion of the text
of any Certificates may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Certificate.
The definitive Certificates and the Initial Certificate(s) shall be printed, lithographed, or
engraved, typewritten, photocopied or otherwise reproduced in any other similar manner, all as
determined by the officers executing such Certificates as evidenced by their execution thereof.
B. Form of Certificates.
REGISTERED NO. __ _
Certificate Date:
April1, 1999
Registered Owner:
Principal Amount:
REGISTERED
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF LUBBOCK, TEXAS,
$ __ _
TAX AND SEWER SYSTEM SURPLUS REVENUE
CERTIFICATE OF OBLIGATION,
SERIES 1999
Interest Rate:
% ---
Stated Maturity: CUSIP NO:
DOLLARS
The City of Lubbock (hereinafter referred to as the "City"), a body corporate and municipal
corporation in the County of Lubbock, 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 stated above (or
so much thereof as shall not have been paid upon prior redemption) and to pay interest (computed
on the basis of a 360-day year of twelve 30-day months) on the unpaid Principal Amount hereof
from the Certificate Date at the per annum rate of interest specified above; such interest being
payable on February 15 and August 15 of each year, commencing February 15, 2000. Principal
of this Certificate is payable at its Stated Maturity or redemption to the registered owner hereof,
upon presentation and surrender, at the Designated Payment/Transfer Office of the Paying
Agent/Registrar executing the registration certificate appearing hereon, or its successor; provided,
however, while this Certificate is registered to Cede & Co., the payment of principal upon a partial
Ordinance #1 0152
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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 last business 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 on the Record Date or by such other method, acceptable to the Paying
Agent/Registrar, requested by, and at the risk and expense of, the registered owner. All payments
of principal of, premium, if any, and interest on this Certificate shall be without exchange or
collection charges to the owner hereof and in any coin or currency of the United States of America
which at the time of payment is legal tender for the payment of public and private debts.
This Certificate is one of the series specified in its title issued in the aggregate principal
amount of $6,100,000 (herein referred to as the "Certificates") for the purpose of paying contractual
obligations to be incurred for (i) improvements and extensions to the City's Sewer System,
including the purchase of land for the irrigation of effluent, and (ii) professional services rendered
in connection with such project and the financing thereof, under and in strict conformity with the
Constitution and laws of the State of Texas, particularly V.T.C.A., Local Government Code,
Subchapter C of Chapter 271, and pursuant to an Ordinance adopted by the governing body of the
City (herein referred to as the "Ordinance").
The Certificates maturing on and after February 15, 2010, 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
February 15, 2009, or on any date thereafter, at the redemption price of par, together with accrued
interest to the date of redemption.
At least thirty days prior to a redemption date, the City shall cause a written notice of such
redemption to be sent by United States Mail, first class postage prepaid, to the registered owners
of each Certificate to be redeemed at the address shown on the Security Register and subject to
the terms and provisions relating thereto contained in the Ordinance. If a Certificate (or any portion
of its principal sum) shall have been duly called for redemption and notice of such redemption duly
given, then upon the redemption date such Certificate (or the portion of its principal sum to be
redeemed) shall become due and payable, and, if moneys for the payment of the redemption price
and the interest accrued on the principal amount to be redeemed to the date of redemption are held
for the purpose of such payment by the Paying Agent/Registrar, interest shall cease to accrue and
be payable from and after the redemption date on the principal amount redeemed.
In the event a portion of the principal amount of a Certificate is to be redeemed and the
registered owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender of
such Certificate to the Designated Payment/Transfer Office of the Paying Agent/Registrar, and a
new Certificate or Certificates of like maturity and interest rate in any authorized denominations
provided by the Ordinance for the then unredeemed balance of the principal sum thereof will be
issued to the registered owner, without charge. If a Certificate is selected for redemption, in whole
or in part, the City and the Paying Agent/Registrar shall not be required to transfer such Certificate
to an assignee of the registered owner within 45 days of the redemption date therefor; provided,
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PageS
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.
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, together with the Previously
Issued Obligations (as defined in the Ordinance), are additionally payable from and secured by a
lien on and pledge of the Net Revenues (as defined in the Ordinance) of the City's Sewer System
(the "System"), such lien and pledge, however, being junior and subordinate to the lien on and
pledge of the Net Revenues of the System securing the payment of "Prior Lien Obligations" (as
defined in the Ordinance) 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 terms, conditions or restrictions as may be
applicable thereto under law or otherwise, as well as the right to issue Additional Obligations (as
defined in the Ordinance).
Reference is hereby made to the Ordinance, a copy of which is on file in the Designated
PaymenVTransfer Office of the Paying Agent/Registrar, and to all the provisions of which the
Holder hereof by the acceptance hereof hereby assents, for definitions of terms; the description
of and the nature and extent of the tax levied for the payment of the Certificates; the nature and
extent of the limited pledge of the Net Revenues securing the payment of the Certificates; the terms
and conditions relating to the transfer or exchange of this Certificate; the conditions upon which the
Ordinance may be amended or supplemented with or without the consent of the Holders; the rights,
duties, and obligations of the City and the Paying Agent/Registrar; the terms and provisions upon
which the tax levy and the pledge of the Net Revenues and covenants made in the Ordinance may
be discharged at or prior to the 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. VVhen
a transfer on the Security Register occurs, one or more fully registered Certificates of authorized
denominations 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, may treat the registered
owner hereof whose name appears on the Security Register (i) on the Record Date as the owner
entitled to payment of interest hereon, (ii) on the date of surrender of this Certificate as the owner
entitled to payment of principal hereof at its Stated Maturity or its redemption, in whole or in part,
and (iii) on any other date as the owner for all other purposes, and neither the City nor the Paying
Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. In the event of
nonpayment of interest on a scheduled payment date and for thirty (30) days thereafter, a new
record date for such interest payment (a "Special Record Date") will be established by the Paying
Agent/Registrar, if and when funds for the payment of such interest have been received from the
City. Notice of the Special Record Date and of the scheduled payment date of the past due interest
(which shall be 15 days after the Special Record Date) shall be sent at least five (5) business days
prior to the Special Record Date by United States Mail, first class postage prepaid, to the address
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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 covenanted 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 or any application thereof shall be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions and applications 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:
c~ /Jmm~
~
(SEAL)
Ordinance #10152
Page 10
C. *Form of Registration Certificate of Comptroller of Public Accounts to Appear on Initial
Certificate(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
§
§
§
§
REGISTER NO.--------
THE STATE OF TEXAS
I HEREBY CERTIFY that this Certificate has been examined, certified as to validity and
approved by the Attorney General of the State of Texas, and duly registered by the Comptroller of
Public Accounts of the State of Texas.
(SEAL)
WITNESS my signature and seal of office this----------
Comptroller of Public Accounts
of the State of Texas
*NOTE TO PRINTER: Do not print on definitive Certificates
D. Form of Certificate of Paying Agent/Registrar to Appear on Definitive Certificates.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Certificate has been duly issued and registered under the provisions of the
within-mentioned Ordinance; the certificate or certificates of the above entitled and designated
series originally delivered having been approved by the Attorney General of the State of Texas and
registered by the Comptroller of Public Accounts, as shown by the records of the Paying
Agent/Registrar.
The designated offices of the Paying Agent/Registrar located in Dallas, Texas, is the
"Designated Payment/Transfer Office" for this Certificate.
Registration Date:
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, as Paying Agent/Registrar
By _______________________ ___
Ordinance #10152
Page 11
Authorized Signature
E. Form of Assignment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto (Print
or typewrite name, address, and zip code of transferee:)-------------
(Social Security or other identifying number. _________________ -.~
the within Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the within Certificate on the books kept for registration thereof, with full power
of substitution in the premises.
DATED: ________________ ___
Signature guaranteed:
NOTICE: The signature on this assignment
must correspond with the name of the
registered owner as it appears on the face
of the within Certificate in every particular.
F. The Initial Certificate(sl 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:
(i) immediately under the name of the certificate the headings ''Interest Rate __ "
and "Stated Maturity " shall both be omitted;
(ii) paragraph one shall read as follows:
Registered Owner:
Principal Amount: Dollars
The City of Lubbock (hereinafter referred to as the "City"), a body corporate and municipal
corporation in the County of Lubbock, 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 February 15 in each of the years and
in principal installments in accordance with the following schedule:
PRINCIPAL
INSTALLMENTS
INTEREST
RATE
(Information to be inserted from schedule in Section 2 hereof).
(or so much principal thereof as shall not have been prepaid prior to maturity) and to pay interest
on the unpaid Principal Amount hereof from the Certificate Date at the per annum rates of interest
specified above computed on the basis of a 360-day year of twelve 30-day months; such interest
being payable on February 15 and August 15 of each year, commencing February 15, 2000.
Principal installments of this Certificate are payable in the year of maturity or on a prepayment date
to the registered owner hereof by Chase Bank of Texas, National Association (the "Paying
Ordinance #10152
Page 12
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 last business day of
the month next preceding each interest payment date hereof and interest shall be paid by the
Paying Agent/Registrar by check sent United States Mail, first class postage prepaid, to the
address of the registered owner recorded in the Security Register or by such other method,
acceptable to the Paying Agent/ Registrar, requested by, and at the risk and expense of, the
registered owner. All payments of principal of, premium, if any, and interest on this Certificate shall
be without exchange or collection charges to the owner hereof and in any coin or currency of the
United States of America which at the time of payment is legal tender for the payment of public and
private debts.
SECTION 10: Definitions. For purposes of this Ordinance and for clarity with respect to
the issuance of the Certificates, and the levy of taxes and appropriation of Net Revenues therefor,
the following words or terms, whenever the same appear herein without qualifying language, are
defined to mean as follows:
(a) The term "Additional Obligations" shall mean tax and revenue
obligations hereafter issued which by their terms are payable from ad valorem taxes
and additionally payable from and secured by a parity lien on and pledge of the Net
Revenues of the System of equal rank and dignity with the lien and pledge securing
the payment of the Previously Issued Obligations and the Certificates.
(b) The term "Certificates" shall mean $6,100,000 "CITY OF LUBBOCK,
TEXAS, TAX AND SEWER SYSTEM SURPLUS PLEDGE) REVENUE
CERTIFICATES OF OBLIGATION, SERIES 1999" authorized by this Ordinance.
(c) The term "Certificate Fund" shall mean the special Fund created and
established under the provisions of Section 11 of this Ordinance.
(d) The term "Collection Date" shall mean, when reference is being
made to the levy and collection of annual ad valorem taxes, the date annual ad
valorem taxes levied each year by the City become delinquent.
(e) The term "Fiscal Year'' shall mean the annual financial accounting
period used with respect to the operations of the System now ending on September
3oth of each year; provided, however, the City Council may change, by ordinance
duly passed, such annual financial accounting period to end on another date if such
change is found and determined to be necessary for budgetary or other fiscal
purposes.
(f) The term "Government Securities" shall mean direct obligations of
the United States of America, including obligations the principal of and interest on
which are unconditionally guaranteed by the United States of America, and the
United States Treasury obligations such as its State and Local Government Series
in book-entry form.
Ordinance #10152
Page 13
(g) The term "Gross Revenues" shall mean, with respect to any period,
all income, revenues and receipts received from the operation and ownership of the
System.
(h) The term "Net Revenues" shall mean the Gross Revenues of the
System, with respect to any period, after deducting the System's Operating and
Maintenance Expenses during such period.
(i) The term "Operating and Maintenance Expenses .. shall mean all
reasonable and necessary expenses directly related and attributable to the
operation and maintenance of the System, including, but not limited to, the cost of
insurance, the purchase and carrying of stores, materials, and supplies, the
payment of salaries and labor, and other expenses reasonably and properly
charged, under generally accepted accounting principles, to the operation and
maintenance of the System. Depreciation charges on equipment, machinery, plants
and other facilities comprising the System and expenditures classed under generally
accepted accounting principles as capital expenditures shall not be considered as
"Operating and Maintenance Expenses" for purposes of determining "Net
Revenues".
(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:
(1) those Certificates canceled 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 19 hereof; and
(3) those Certificates that have been mutilated,
destroyed, lost, or stolen and replacement Certificates have been
registered and delivered in lieu thereof as provided in Section 23
hereof.
(k) The term "Previously Issued Obligations" shall mean the outstanding
(i) "City of Lubbock, Texas, Combination Tax and Sewer System Subordinate Lien
Revenue Refunding Bonds, Series 1988," (ii) "City of Lubbock, Texas, Combination
Tax and Sewer System Subordinate Lien Revenue Certificates of Obligation, Series
1988," (iii) "City of Lubbock, Texas, Combination Tax and Sewer System
Subordinate Lien Revenue Certificates of Obligation, Series 1991," (iv) "City of
Lubbock, Texas, Combination Tax and Sewer System Subordinate Lien Revenue
Certificates of Obligation, Series 1992", and (v) 11City of Lubbock, Texas,
Combination Tax and Sewer System Subordinate Lien Revenue Certificates of
Obligation, Series 1993".
Ordinance #1 0152
Page 14
(I) The tenn "Prior Lien Obligations" shall mean all bonds or other
similar obligations hereafter issued that are payable in whole or in part from and
secured by a lien on and pledge of the Net Revenues of the System and such lien
and pledge securing the payment thereof is prior and superior in claim, rank and
dignity to the lien and pledge of the Net Revenues securing the payment of the
Certificates.
(m) The tenn "Similarly Secured Obligations" shall mean collectively the
Certificates, the Previously Issued Obligations, and any Additional Obligations.
(n) The tenn "System" shall mean the City's sanitary sewer system,
being all sanitary sewage collection system, effluent treatment and disposal facilities
and/or other works and equipment.
SECTION 11: Certificate Fund. For the purpose of paying the interest on and to provide
a sinking fund for the payment and retirement of the Certificates, there shall be and is hereby
created a special Fund to be designated "SPECIAL 1999 CITY OF LUBBOCK, TEXAS, TAX AND
SEWER SYSTEM SURPLUS REVENUE CERTIFICATE OF OBLIGATION FUND", which Fund
shall be kept and maintained at the City's depository bank, and moneys deposited in said Fund
shall be used for no other purpose. Proper officers of the City are hereby authorized and directed
to cause to be transferred to the Paying Agent for the Certificates, from funds on deposit in the
Certificate Fund, amounts sufficient to fully pay and discharge promptly each installment of interest
and principal of the Certificates as the same accrues or matures or comes due by reason of
redemption prior to maturity; such transfers of funds to be made in such manner as will cause
immediately available funds to be deposited with the Paying Agent for the Certificates at the close
of business on the last business day next preceding each interest and/or principal payment date
for the Certificates.
Pending the transfer of funds to the Paying Agent/Registrar, money in the Certificate Fund
may, at the option of the City, be invested in obligations identified in, and in accordance with the
provisions of the "Public Funds Investment Act" (V.T.C.A., Government Code, Chapter 2256)
relating to the investment of "bond proceeds"; provided that all such investments shall be made in
such a manner that the money required to be expended from said Fund will be available at the
proper time or times. All interest and income derived from deposits and investments in said
Certificate Fund shall be credited to, and any losses debited to, the said Certificate Fund. All such
investments shall be sold promptly when necessary to prevent any default in connection with the
Certificates.
SECTION 11: Tax Levv. That 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, 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 deposited into the Certificate Fund. This governing body hereby declares its
purpose and intent to provide and levy a tax legally and fully sufficient to pay the said Debt Service
Ordinance #1 0152
Page 15
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.
The amount of taxes to be provided annually for the payment of the principal of and interest
on the Certificates herein authorized to be issued shall be determined and accomplished in the
following manner:
(a) Prior to the date the City Council establishes the annual tax rate and passes an
ordinance levying ad valorem taxes each year, the City Council shall determine:
{1) The amount on deposit in the Certificate Fund after
(a) deducting therefrom the total amount of Debt Service
Requirements to become due on Certificates prior to the Collection
Date for the ad valorem taxes to be levied and (b) adding thereto the
amount of Net Revenues of the System appropriated and allocated
to pay such Debt Service Requirements prior to the Collection Date
for the ad valorem taxes to be levied.
(2) The amount of Net Revenues if any, appropriated
and to be set aside for the payment of the Debt Service
Requirements on the Certificates between the Collection Date for the
taxes then to be levied and the Collection Date for the taxes to be
levied during the next succeeding calendar year.
(3) The amount of Debt Service Requirements to
become due and payable on the Certificates between the Collection
Date for the taxes then to be levied and the Collection Date for the
taxes to be levied during the next succeeding calendar year.
(b) The amount of taxes to be levied annually each year to pay the Debt Service
Requirements on the Certificates shall be the amount established in paragraph (3) above less the
sum total of the amounts established in paragraphs (1) and (2), after taking into consideration
delinquencies and costs of collecting such annual taxes.
SECTION 12: Pledge of Revenues. The City hereby covenants and agrees that, subject
only to a prior lien on and pledge of the Net Revenues of the System for the payment and security
of Prior Lien Obligations, the Net Revenues of the System, with the exception of those in excess
of the amounts required to be deposited to the Certificate Fund as hereafter provided, are hereby
irrevocably pledged, equally and ratably, to the payment of the principal of and interest on the
Similarly Secured Obligations as herein provided, and the pledge of the Net Revenues of the
System herein made for the payment of the Certificates shall constitute a lien on the Net Revenues
of the System in accordance with the terms and provisions hereof and be valid and binding without
further action by the City and without any filing or recording except for the filing of this Ordinance
in the records of the City.
Ordinance #1 0152
Page 16
SECTION 13: System Fund. The City hereby reaffirms its covenant and agreement made
in connection with the issuance of the Previously Issued Obligations that all Gross Revenues
(excluding earnings from the investment of money held in any special funds or accounts created
for the payment and security of Prior Lien Obligations) shall be deposited from day to day as
collected into a "City of Lubbock, Texas, Sewer System Operating Fund" (hereinafter called
"System Fund'') which Fund shall be kept and maintained at an official depository bank of the City.
All moneys deposited in the System Fund shall be pledged and appropriated to the extent required
for the following purposes and in the order of priority shown, to wit:
First: To the payment of all necessary and reasonable Operating and
Maintenance Expenses of the System as defined herein or required by statute to
be a first charge on and claim against the Gross Revenues.
Second: To the payment of the 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; and
Third: Equally and ratably to the payment of the amounts required to be
deposited in the special funds and accounts created and established for the
payment of the Similarly Secured Obligations.
Any Net Revenues remaining in the System Fund after satisfying the foregoing payments,
or making adequate and sufficient provision for the payment thereof, may be appropriated and
used for any other City purpose now or hereafter permitted by law.
SECTION 14: Deposits to Certificate Fund. The City hereby covenants and agrees to
cause to be deposited in the Certificate Fund prior to each interest and principal payment date from
the Net Revenues of the System, after deduction of all payments required to be made to special
Funds or accounts created for the payment and security of the Prior Lien Obligations, an amount
equal to one hundred per centum (100%) of the amount required to fully pay the accrued interest
and principal of the Certificates then due and payable by reason of maturity or redemption prior to
maturity. such deposits to pay accrued interest and principal on the Certificates to be made in
substantially equal monthly installments on or before the last business day of each month
beginning the month the Certificates are delivered to the initial purchaser.
The monthly deposits to the Certificate Fund, as hereinabove provided, shall be made until
such time as such Fund contains an amount equal to pay the principal of and interest on the
Certificates to maturity. Ad valorem taxes levied, collected and deposited in the Certificate Fund
for and on behalf of the Certificates may be taken into consideration and reduce the amount of the
monthly deposits otherwise required to be deposited in the Certificate Fund from the Net Revenues
of the System. In addition, any proceeds of sale of the Certificates in excess of the amount
required to pay the contractual obligations to be incurred (including change orders to a construction
contract) shall be deposited in the Certificate Fund, which amount shall reduce the sums otherwise
required to be deposited in said Fund from ad valorem taxes and the Net Revenues of the System.
Ordinance #10152.
Page 17
SECTION 15: Security of Funds. All moneys on deposit in the Funds for which this
Ordinance makes provision (except any portion thereof as may be at any time properly invested)
shall be secured in the manner and to the fullest extent required by the laws of Texas for the
security of public funds, and moneys on deposit in such Funds shall be used only for the purposes
permitted by this Ordinance.
SECTION 16: Special Covenants. The City hereby further covenants as follows:
(a) It has the lawful power to pledge the Net Revenues of the System
supporting this issue of Certificates and has lawfully exercised said powers under
the Constitution and laws of the State of Texas, including said power existing under
Articles 1111 et seq., V.A.T.C.S. and V.T.C.A., Local Government Code,
Subchapter C of Chapter 271.
(b) Other than for the payment of the Previously Issued Obligations and
the Certificates, the Net Revenues of the System have not in any manner been
pledged to the payment of any debt or obligation of the City or of the System.
SECTION 17: 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 terms, conditions or restrictions applicable thereto under law
or otherwise.
In addition, the City reserves the right to issue Additional Obligations, without limitation or
any restriction or condition being applicable to their issuance under the terms of this Ordinance,
payable from and secured by a lien on and pledge of the Net Revenues of the System of equal
rank and dignity, and on a parity in all respects, with the lien thereon and pledge thereof securing
the payment of the Certificates.
SECTION 18: Subordinate to Prior Lien Obligations Covenants and Agreements. It is the
intention of this governing body and accordingly hereby recognized and stipulated that the
provisions, agreements and covenants contained herein bearing upon the management and
operations of the System and the administering and application of revenues derived from the
operation thereof, shall to the extent possible be harmonized with like provisions, agreements and
covenants contained in ordinances authorizing the issuance of Prior Lien Obligations, and to the
extent of any irreconcilable conflict between the provisions contained herein and in ordinances
authorizing the issuance of Prior Lien Obligations, the provisions, agreements and covenants
contained therein shall prevail to the extent of such conflict and be applicable to this Ordinance but
in all respects subject to the priority of rights and benefits, if any, conferred thereby to the holders
or owners of the Prior Lien Obligations. Notwithstanding the above, any change or modification
affecting the application of revenues derived from the operation of the System shall not impair the
obligation of contract with respect to the pledge of revenues herein made for the payment and
security of the Certificates.
SECTION 19: Satisfaction of Obligations 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 and the lien on and pledge of the Net Revenues of the System under this Ordinance and all
Ordinance #10152
Page 18
covenants, agreements, and other obligations of the City to the Holders shall thereupon cease,
terminate, and be discharged and satisfied.
Certificates 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 (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, 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 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 four (4) years after the maturity, or applicable redemption date,
of the Certificates for which such moneys were deposited and are held in trust to pay, shall upon
the request of the City be remitted to the City against a written receipt therefor. Notwithstanding
the above and foregoing, any remittance of funds from the Paying Agent/Registrar to the City shall
be subject to any applicable unclaimed property laws of the State of Texas.
SECTION 20: Ordinance a Contract -Amendments. This Ordinance shall constitute a
contract with the Holders from time to time, be binding on the City, and shall not be amended or
repealed by the City so long as any Certificate remains Outstanding except as permitted in this
Section. The City, may, without the consent of or notice to any Holders of the Certificates, from
time to time and at any time, amend this Ordinance in any manner not detrimental to the interests
of the Holders of the Certificates, including the curing of any ambiguity, inconsistency, or formal
defect or omission herein. In addition, the City may, with the written consent of Holders of the
Certificates 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
Ordinance #10152
Page 19
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 21: Notices to Holders -Waivers. Wherever this Ordinance provides for notice
to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and sent by United States Mail, first class postage prepaid, to the address of
each Holder appearing in the Security Register at the close of business on the business day next
preceding the mailing of such notice.
In any case where notice to Holders is given by mail, neither the failure to mail such notice
to any particular Holders, nor any defect in any notice so mailed, shall affect the sufficiency of such
notice with respect to all other Certificates. Where this Ordinance provides for notice in any
manner, such notice may be waived in writing by the Holder entitled to receive such notice, either
before or after the event with respect to which such notice is given, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the Paying
Agent/Registrar, but such filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
SECTION 22: Cancellation. Certificates surrendered for payment, redemption, transfer,
or exchange, if surrendered to the Paying Agent/Registrar, shall be promptly canceled by it and,
if surrendered to the City, shall be delivered to the Paying Agent/Registrar and, if not already
canceled, shall be promptly canceled 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 canceled by the Paying Agent/Registrar. All canceled
Certificates held by the Paying Agent/Registrar shall be returned to the City.
SECTION 23: Mutilated. Destroyed. Lost and Stolen Certificates. In case any Certificate
shall be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may execute and deliver
a replacement Certificate of like form and tenor, and in the same denomination and bearing a
number not contemporaneously outstanding, in exchange and substitution for such mutilated
Certificate, or in lieu of and in substitution for such destroyed, lost or stolen Certificate, only upon
the approval of the City and after (i) the filing by the Holder thereof with the Paying Agent/Registrar
of evidence satisfactory to the Paying Agent/Registrar of the destruction, loss or theft of such
Certificate, and of the authenticity of the ownership thereof and (ii) the furnishing to the Paying
Agent/Registrar of indemnification in an amount satisfactory to hold the City and the Paying
Agent/Registrar harmless. All expenses and charges associated with such indemnity and with the
preparation, execution and delivery of a replacement Certificate shall be borne by the Holder of the
Certificate mutilated, or destroyed, lost or stolen.
Every replacement Certificate issued pursuant to this Section shall be a valid and binding
obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably with all other
Outstanding Certificates; notwithstanding the enforce,ability of payment by anyone of the destroyed,
lost or stolen Certificates.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement and payment of mutilated, destroyed,
lost, or stolen Certificates.
Ordinance #10152
Page20
SECTION 24: Covenants to Maintain Tax-Exempt Status. A.
in this Section, the following terms have the following meanings:
Definitions. When used
"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.
"Regulations" means any proposed, temporary, or final Income Tax
Regulations issued pursuant to Sections 103 and 141 through 150 of the Code, and
1 03 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
Ordinance #10152
Page 21
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 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.
Ordinance #10152
Page22
G. Information Report. The City shall timely file the information required by section
149(e) ofthe Code with the Secretary ofthe 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
Purchasers and the loan of the money represented thereby and in order to induce
such purchase by measures designed to insure the excludability of the interest
thereon from the gross income of the owners thereof for federal income tax
purposes, the City shall pay to the United States out of the Certificate Fund or its
general fund, as permitted by applicable Texas statute, regulation or opinion of the
Attorney General of the State of Texas, the amount that when added to the future
value of previous rebate payments made for the Certificates equals (i) in the case
of a Final Computation Date as defined in Section 1.148-3(e)(2) of the Regulations,
one hundred percent (100%) of the Rebate Amount on such date; and (ii) in the
case of any other Computation Date, ninety percent (90%) of the Rebate Amount
on such date. In all cases, the rebate payments shall be made at the times, in the
installments, to the place and in the manner as is or may be required by section
148(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.
Ordinance #1 0152
Page23
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, City Secretary, City
Manager, Managing Director of Finance, and First Assistant City Manager, 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.
SECTION 25: Sale of Certificates. Pursuant to a public sale for the Certificates, the bid
submitted by Morgan Keegan & Co. Inc. and Associates (herein referred to as the "Purchasers")
is declared to be the best bid received producing the lowest net effective interest cost to the City,
and the sale of the Certificates to said Purchasers at the price of par and accrued interest to the
date of delivery, plus a premium of$ -0-, is hereby approved and confirmed. Delivery of the
Certificates to the Purchasers shall occur as soon as possible upon payment being made therefor
in accordance with the terms of sale.
SECTION 26: Official Statement. The Official Statement prepared in the initial offering and
sale of the Certificates by the City, together with all addendas, supplements and amendments
thereto issued on behalf of the City, is hereby approved as to form and content, and the City
Council hereby finds that the information and data contained in said 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 use of such Official Statement
in the reoffering of the Certificates by the Purchasers is hereby approved and authorized.
SECTION 27: Proceeds of Sale. The proceeds of sale of the Certificates, excluding the
accrued interest and premium, if any, received from the Purchasers, shall be deposited in a
construction fund maintained at the City's depository bank. Pending expenditure for authorized
projects and purposes, such proceeds of sale may be invested in authorized investments and any
investment earnings realized may be expended for such authorized projects and purposes or
deposited in the Certificate Fund as shall be determined by the City Council. Accrued interest and
premium, if any, received from the Purchasers as well as all surplus proceeds of sale of the
Certificates, including investment earnings, remaining after completion of all authorized projects
or purposes shall be deposited to the credit of the Certificate Fund.
SECTION 28: 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
investigation by the Attorney General of the State of Texas, including the printing of the Certificates,
and shall take and have charge and control of the Certificates pending the approval thereof by the
Attorney General, the registration thereof by the Comptroller of Public Accounts and the delivery
thereof to the Purchasers.
Ordinance #10152
Page24
Furthermore, the Mayor, City Secretary, City Manager, First Assistant City Manager,
Managing Director of Finance, and Director of Financial Services, any one or more of said officials,
are hereby authorized and directed to furnish and execute such documents and certifications
relating to the City and the issuance of the Certificates, including a certification as to facts,
estimates, circumstances and reasonable expectations pertaining to the use and expenditure and
investment of the proceeds of the Certificates as may be necessary for the approval of the Attorney
General, registration by the Comptroller of Public Accounts and delivery of the Certificates to the
purchasers thereof and, together with the City's financial advisor, bond counsel and the Paying
Agent/Registrar, make the necessary arrangements for the delivery of the Initial Certificate(s) to
the purchasers.
SECTION 29: legal Opinion. The obligation of the Purchasers to accept delivery of the
Certificates is subject to being furnished a final opinion of Fulbright & Jaworski l.l.P., Attorneys,
Dallas, Texas, approving such Certificates as to their validity, said opinion to be dated and
delivered as of the date of delivery and payment for such Certificates. A true and correct
reproduction of said opinion is hereby authorized to be printed on the definitive Certificates or an
executed counterpart thereof shall accompany the global Certificates deposited with the Depository
Trust Company.
SECTION 30: CUSIP Numbers. That CUSIP numbers may be printed or typed on the
definitive Certificates. It is expressly provided, however, that the presence or absence of CUSIP
numbers on the definitive Certificates shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving said Certificates as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Certificates.
SECTION 31: Benefits of Ordinance. Nothing in this Ordinance, expressed or implied, is
intended or shall be construed to confer upon any person other than the City, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by reason
of this Ordinance or any provision hereof, this Ordinance and all its provisions being intended to
be and being for the sole and exclusive benefit of the City, the Paying Agent/Registrar and the
Holders.
SECTION 32: 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 33: 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 34: 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 35: Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
Ordinance #1 0152
Page25
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: Continuing Disclosure Undertaking. (a) Definitions. As used in this
Section, the following terms have the meanings ascribed to such terms below:
"MSRB11 means the Municipal Securities Rulemaking Board.
"NRMSJR' means each person whom the SEC or its staff has determined to be a
nationally recognized municipal securities information repository within the meaning of the Rule
from time to time.
"Rule" means SEC Rule 15c2-12, as amended from time to time.
"SEC' means the United States Securities and Exchange Commission.
"SID' means any person designated by the State of Texas or an authorized
department, officer, or agency thereof as, and determined by the SEC or its staff to be, a state
information depository within the meaning of the Rule from time to time.
(b) Annual Reports. The City shall provide annually to each NRMSIR and any SID,
within six months after the end of each fiscal year (beginning with the fiscal year ending September
30, 1999) financial information and operating data with respect to the City of the general type
included in the final Official Statement approved by Section 26 of this Ordinance, being the
information described in Exhibit B hereto. Financial statements to be provided shall be (1)
prepared in accordance with the accounting principles described in Exhibit B hereto and
(2) audited, if the City commissions an audit of such statements and the audit is completed within
the period during which they must be provided. If audited financial statements are not available
at the time the financial information and operating data must be provided, then the City shall
provide unaudited financial statements for the applicable fiscal year to each NRMSIR and any SID
with the financial information and operating data and will file the annual audit report, when and if
the same becomes available.
If the City changes its fiscal year, it will notify each NRMSIR and any SID of the
change (and of the date of the new fiscal year end) prior to the next date by which the City
otherwise would be required to provide financial information and operating data pursuant to this
Section.
The financial information and operating data to be provided pursuant to this Section
may be set forth in full in one or more documents or may be included by specific reference to any
document (including an official statement or other offering document, if it is available from the
MSRB) that theretofore has been provided to each NRMSIR and any SID or filed with the SEC.
(c) Material Event Notices. The City shall notify any SID and either each NRMSIR or
the MSRB, in a timely manner, of any of the following events with respect to the Certificates, if such
event is material within the meaning of the federal securities laws:
Ordinance #10152
Page26
1.
2.
3.
4.
5.
6.
Certificates;
Principal and interest payment delinquencies;
Non-payment related defaults;
Unscheduled draws on debt service reserves reflecting financial difficulties;
Unscheduled draws on credit enhancements reflecting financial difficulties;
Substitution of credit or liquidity providers, or their failure to perform;
Adverse tax opinions or events affecting the tax-exempt status of the
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 any SID and either each NRMSIR or the MSRB, in a timely
manner, of any failure by the City to provide financial information or operating data in accordance
with subsection (b) of this Section by the time required by such Section.
(d) Limitations, Disclaimers, and Amendments. The City shall be obligated to observe
and perform the covenants specified in this Section while, but only while, the City remains an
"obligated person" with respect to the Certificates within the meaning of the Rule, except that the
City in any event will give the notice required by subsection (c) hereof of any Certificate calls and
defeasance that cause the City to be no longer such an "obligated person."
The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Certificates, and nothing in this Section, express or implied, shall give any benefit
or any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the City's financial results, condition, or prospects or hereby undertake to update
any information provided in accordance with this Section or otherwise, except as expressly
provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Certificates at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER
OR BENEFICIAL OWNER OF ANY CERTIFICATE OR ANY OTHER PERSON, IN CONTRACT
OR TORT, FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE
CITY, WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT
SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON,
IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE LIMITED
TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE.
No default by the City in observing or performing its obligations under this Section
shall constitute a breach of or default under this Ordinance for purposes of any other provision of
this Ordinance.
Nothing in this Section is intended or shall ad to disclaim, waive, or otherwise limit
the duties of the City under federal and state securities laws.
Ordinance #10152
Page27
The provisions of this Section may be amended by the City from time to time to
adapt to changed circumstances resulting from a change in legal requirements, a change in law,
or a change in the identity, nature, status, or type of operations of the City, but only if (1) the
provisions of this Section, as so amended, would have permitted an underwriter to purchase or sell
Certificates in the primary offering of the Certificates in compliance with the Rule, taking into
account any amendments or interpretations of the Rule to the date of such amendment, as well as
such changed circumstances, and (2) either (a) the Holders of a majority in aggregate principal
amount (or any greater amount required by any other provision of this Ordinance that authorizes
such an amendment) of the Outstanding Certificates consent to such amendment or (b) a person
that is unaffiliated with the City (such as nationally recognized bond counsel) determines that such
amendment will not materially impair the interests of the Holders and beneficial owners of the
Certificates. The provisions of this Section may also be amended from time to time or repealed
by the City if the SEC amends or repeals the applicable provisions of the Rule or a court of final
jurisdiction determines that such provisions are invalid, but only if and to the extent that reservation
of the City's right to do so would not prevent underwriters of the initial public offering of the
Certificates from lawfully purchasing or selling Certificates in such offering. If the City so amends
the provisions of this Section, it shall include with any amended financial information or operating
data next provided in accordance with subsection (b) an explanation, in narrative form, of the
reasons for the amendment and of the impact of any change in the type of financial information or
operating data so provided.
SECTION 38: 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 39: Effective Date. This Ordinance shall take effect and be in force immediately
from and after its passage on second and final reading, and IT IS SO ORDAINED.
PASSED AND ADOPTED ON FIRST READING, March 25, 1999.
PASSED AND ADOPTED ON SECOND AND FINAL READING, this the 8th day of April,
1999.
(City Se~l)
Ordinance #10152
Page28
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of AprilS, 1999 (this "Agreement"), by and between
the City of Lubbock, Texas (the "Issuer''), and Chase Bank of Texas, National Association, a
banking association duly organized and existing under the laws of the United States of America,
(the "Bank").
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the exe~tion and delivery
of its "City of Lubbock, Texas, Tax and Sewer System Surplus Revenue Certificates of Obligation,
Series 1999" (the "Securities"), dated April1, 1999, and such Securities are to be delivered to the
initial purchasers on or about May 12, 1999; and
WHEREAS, the Issuer has selected the Bank to serve as Paying Agent/Registrar in
connection with the payment of the principal of, premium, if any, and interest on said Securities
and with respect to the registration, transfer and exchange thereof by the registered owners
thereof; and
WHEREAS, the Bank has agreed to serve in such capacities for and on behalf of the
Issuer and has full power and authority to perform and serve as Paying Agent/Registrar for the
Securities;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01. Appointment. The Issuer hereby appoints the Bank to serve as Paying
Agent with respect to the Securities, and, as Paying Agent for the Securities, the Bank shall be
responsible for paying on behalf of the Issuer the principal, premium (if any), and interest on the
Securities as the same become due and payable to the registered owners thereof; all in
accordance with this Agreement and the "Bond Resolution" (hereinafter defined). The Issuer
hereby appoints the Bank as Registrar with respect to the Securities and, as Registrar for the
Securities, the Bank shall keep and maintain for and on behalf of the Issuer books and records
as to the ownership of said Securities and with respect to the transfer and exchange thereof as
provided herein and in the "Bond Resolution".
The Bank hereby accepts its appointment, and agrees to serve as the Paying Agent and
Registrar for the Securities.
Exhibit "A•
Ordinance No. 10152
Page 1
Section 1.02. Compensation. As compensation for the Bank's services as Paying
Agent/Registrar, the Issuer hereby agrees to pay the Bank the fees and amounts set forth in
Annex A attached hereto for the first year of this Agreement and thereafter the fees and amounts
set forth in the Bank's current fee schedule then in effect for services as Paying Agent/Registrar
for municipalities, which shall be supplied to the Issuer on or before 90 days prior to the close of
the Fiscal Year of the Issuer, and shall be effective upon the first day of the following Fiscal Year.
In addition, the Issuer agrees to reimburse the Bank upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Bank in accordance with any
of the provisions hereof (including the reasonable compensation and the expenses and
disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01. Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
"Acceleration Date" on any Security means the date on and after which the
principal or any or all installments of interest, or both, are due and payable on any
Security which has become accelerated pursuant to the terms of the Security.
"Bank Office" means the principal offices of the Bank located at the address
appearing on page 10 hereof. The Bank will notify the Issuer in writing of any change in
location of the Bank Office.
''Bond Resolution" means the resolution, order, or ordinance of the governing body
of the Issuer pursuant to which the Securities are issued, certified by the Secretary or any
other officer of the Issuer and delivered to the Bank.
"Fiscal Year" means the fiscal year of the Issuer, ending September 30th.
"Holder'' and .. Security Holder'' each means the Person in whose name a Security
is registered in the Security Register.
"Issuer Request" and "Issuer Order'' means a written request or order signed in
the name of the Issuer by the Mayor, City Manager, First Assistant City Manager,
Managing Director of Finance or City Secretary, any one or more of said officials, and
delivered to the Bank.
''Legal Holiday" means a day on which the Bank is required or authorized to be
closed.
"Person" means any individual, corporation, partnership, joint venture, association,
joint stock company, trust, unincorporated organization or government or any agency or
political subdivision of a government.
Exhibit"A"
Ordinance No. 10152
Page2
"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 Resolution).
"Redemption Date" when used with respect to any Security to be redeemed means
the date fixed for such redemption pursuant to the terms of the Bond Resolution.
"Responsible Officer" when used with respect to the Bank means the Chairman or
Vice-Chairman of the Board of Directors, the Chairman or Vice-Chairman of the Executive
Committee of the Board of Directors, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any Assistant
Cashier, any Trust Officer or Assistant Trust Officer, or any other officer of 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 Bond Resolution the principal of
a Security is scheduled to be due and payable.
Section 2.02. Other Definitions. The terms "Bank," "Issuer,'' and "Securities (Security)*'
have the meanings assigned to them in the recital paragraphs of this Agreement.
The term "Paying Agent/Registrar'' refers to the Bank in the performance of the duties and
functions of this Agreement.
ARTICLE THREE
PAYING AGENT
Section 3.01. Duties of Paying Agent. As Paying Agent, the Bank shall, provided adequate
collected funds have been provided to it for such purpose by or on behalf of the Issuer, pay on
behalf of the Issuer the principal of each Security at its Stated Maturity, Redemption Date, or
Acceleration Date, to the Holder upon surrender of the Security to the Bank Office.
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. All payments of principal and/or interest on the Securities to the registered owners shall be
accomplished (1) by the issuance of checks, payable to the registered owners, drawn on the
fiduciary account provided in Section 5.05 hereof, sent by United States mail, first class, postage
prepaid, to the address appearing on the Security Register or (2) by such other method, acceptable
to the Bank, requested in writing by the Holder at the Holder's risk and expense.
Exhibit"A"
Ordinance No. 10152
Page3
Section 3.02. Payment Dates. The Issuer hereby instructs the Bank to pay the principal
of and interest on the Securities at the dates specified in the Bond Resolution.
ARTICLE FOUR
REGISTRAR
Section 4.01. Security 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 Bank may prescribe. All transfers, exchanges and replacement of Securities shall be noted
in the Security Register.
Every Security surrendered for transfer or exchange shall be duly endorsed or be
accompanied by a written instrument of transfer, the signature on which has been guaranteed by
an officer of a federal or state bank or a member of the National Association of Securities Dealers,
in form satisfactory to the Bank, duly executed by the Holder thereof or his agent duly authorized
in writing.
The Bank may request any supporting documentation it feels necessary to effect a
re-registration, transfer or exchange of the Securities.
To the extent possible and under reasonable circumstances, the Bank agrees that, in
relation to an exchange or transfer of Securities, the exchange or transfer by the Holders thereof
will be completed and new Securities delivered to the Holder or the assignee of the Holder in not
more than three (3) business days after the receipt of the Securities to be cancelled in an exchange
or transfer and the written instrument of transfer or request for exchange duly executed by the
Holder, or his duly authorized agent, in form and manner satisfactory to the Paying Agent/Registrar.
Section 4.02. Certificates. The Issuer shall provide an adequate inventory of printed
Securities to facilitate transfers or exchanges thereof. The Bank covenants that the inventory of
printed Securities will be kept in safekeeping pending their use and reasonable care will be
exercised by the Bank in maintaining such Securities in safekeeping, which shall be not less than
the care maintained by the Bank for debt securities of other governments or corporations for which
it serves as registrar, or that is maintained for its own securities.
Section 4.03. Form of Security Register. The Bank, as Registrar, will maintain the Security
Register relating to the registration, payment, transfer and exchange of the Securities in
accordance with the Bank's general practices and procedures in effect from time to time. The Bank
shall not be obligated to maintain such Security Register in any form other than those which the
Bank has currently available and currently utilizes at the time.
The Security Register may be maintained in written form or in any other form capable of
being converted into written form within a reasonable time.
Exhibit•A•
Ordinance No. 10152
Page4
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 Certificates. The Bank will, at such reasonable intervals
as it determines, surrender to the Issuer, Securities in lieu of which or in exchange for which other
Securities have been issued, or which have been paid.
Section 4.06. Mutilated. Destroyed. Lost or Stolen Securities. The Issuer hereby instructs
the Bank, subject to the provisions of Section 23 of the Bond Resolution, to deliver and issue
Securities in exchange for or in lieu of mutilated, destroyed, lost, or stolen Securities as long as the
same does not result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost or stolen, the Bank may execute
and deliver a replacement Security of like form and tenor, and in the same denomination and
bearing a number not contemporaneously outstanding, in exchange and substitution for such
mutilated Security, or in lieu of and in substitution for such destroyed, lost or stolen Security, only
upon the approval of the Issuer and after (i) the filing by the Holder thereof with the Bank of
evidence satisfactory to the Bank of the destruction, loss or theft of such Security, and of the
authenticity of the ownership thereof and (ii) the furnishing to the Bank of indemnification in an
amount satisfactory to hold the Issuer and the Bank harmless. All expenses and charges
associated with such indemnity and with the preparation, execution and delivery of a replacement
Security shall be borne by the Holder of the Security mutilated, or destroyed, lost or stolen.
Section 4.07. Transaction Information to Issuer. The Bank will, within a reasonable time
after receipt of written request from the Issuer, furnish the Issuer information as to the Securities
it has paid pursuant to Section 3.01, Securities it has delivered upon the transfer or exchange of
any Securities pursuant to Section 4.01, and Securities it has delivered in exchange for or in lieu
of mutilated, destroyed, lost, or stolen Securities pursuant to Section 4.06.
ARTICLE FIVE
THE BANK
Section 5.01. Duties of Bank. The Bank undertakes to perform the duties set forth herein
and agrees to use reasonable care in the performance thereof.
Section 5.02. Reliance on Documents. Etc. (a) The Bank may conclusively rely, as to
the truth of the statements and correctness of the opinions expressed therein, on certificates or
opinions furnished to the Bank.
Exhibit"A"
Ordinance No. 10152
PageS
(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 Issuer.
(e) The Bank may consult with counsel, and the written advice of such counsel or any
opinion of counsel shall be full and complete authorization and protection with respect to any action
taken, suffered, or omitted by it hereunder in good faith and in reliance thereon.
(f) The Bank may exercise any of the powers hereunder and perform any duties
hereunder either directly or by or through agents or attorneys of the Bank.
Section 5.03. Recitals of Issuer. The recitals contained herein with respect to the Issuer
and in the Securities shall be taken as the statements of the Issuer, and the Bank assumes no
responsibility for their correctness.
The Bank shall in no event be liable to the Issuer, any Holder or Holders of any Security,
or any other Person for any amount due on any Security from its own funds.
Section 5.04. 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 -Fiduciary Account/Collateralization. A fiduciary
account shall at all times be kept and maintained by the Bank for the receipt, safekeeping and
disbursement of moneys received from the Issuer hereunder for the payment of the Securities, and
money deposited to the credit of such account until paid to the Holders of the Securities shall be
continuously collateralized by securities or obligations which qualify and are eligible under both the
laws of the State of Texas and the laws of the United States of America to secure and be pledged
as collateral for fiduciary accounts to the extent such money is not insured by the Federal Deposit
Insurance Corporation. Payments made from such fiduciary account shall be made by check
drawn on such fiduciary account unless the owner of such Securities shall, at its own expense and
risk, request such other medium of payment.
Exhibit"A"
Ordinance No. 10152
Page6
The Bank shall be under no liability for interest on any money received by it hereunder.
Subject to the applicable unclaimed property laws of the State of Texas, any money
deposited with the Bank for the payment of the principal, premium (if any), or interest on any
Security and remaining unclaimed for four years after final maturity of the Security has become due
and payable will be paid by the Bank to the Issuer, and the Holder of such Security shall thereafter
look only to the Issuer for payment thereof, and all liability of the Bank with respect to such moneys
shall thereupon cease.
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 either the
Bank Office or the administrative offices of the Issuer is located, and agree that service of process
by certified or registered mail, return receipt requested, to the address referred to in Section 6.03
of this Agreement shall constitute adequate service. The Issuer and the Bank further agree that
the Bank has the right to file a Bill of Interpleader in any court of competent jurisdiction to determine
the rights of any Person claiming any interest herein.
Section 5.08. DT Services. It is hereby represented and warranted that, in the event the
Securities are otherwise qualified and accepted for "Depository Trust Company" services or
equivalent depository trust services by other organizations, the Bank has the capability and, to the
extent within its control, will comply with the "Operational Arrangements", effective December 12,
1994, which establishes requirements for securities to be eligible for such type depository trust
services, including, but not limited to, requirements for the timeliness of payments and funds
availability, transfer turnaround time, and notification of redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment. This Agreement may be amended only by an agreement in
writing signed by both of the parties hereto.
Section 6.02. Assignment. This Agreement may not be assigned by either party without
the prior written consent of the other.
Section 6.03. Notices. Any request, demand, authorization, direction, notice, consent,
waiver, or other document provided or permitted hereby to be given or furnished to the Issuer or
the Bank shall be mailed or delivered to the Issuer or the Bank, respectively, at the addresses
shown on page 10.
Section 6.04. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Exhibit"A•
Ordinance No. 10152
Page7
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. Benefrts 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 6.08. Entire Agreement. This Agreement and the Bond Resolution constitute the
entire agreement between the parties hereto relative to the Bank acting as Paying Agent/Registrar
and if any conflict exists between this Agreement and the Bond Resolution, the Bond Resolution
shall govern.
Section 6.09. 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 6.10. Termination. This Agreement will terminate (i) on the date of final payment
of the principal of and interest on the Securities to the Holders thereof or (ii) may be earlier
terminated by either party upon sixty (60) days written notice; provided, however, an ear1y
termination of this Agreement by either party shall not be effective until (a) a successor Paying
Agent/Registrar has been appointed by the Issuer and such appointment accepted and (b) notice
given to the Holders of the Securities of the appointment of a successor Paying Agent/Registrar.
Furthermore, the Bank and Issuer mutually agree that the effective date of an ear1y 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 ear1y termination of this Agreement, the Bank agrees to promptly transfer and
deliver the Security Register (or a copy thereof), together with other pertinent books and records
relating to the Securities, to the successor Paying Agent/Registrar designated and appointed by
the Issuer.
The provisions of Section 1.02 and of Article Five shall survive and remain in full force and
effect following the termination of this Agreement.
Section 6.11. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Texas.
Exhibit•A"
Ordinance No. 10152
PageS
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
[SEAL]
Attest:
Title:
(CITY SEAL)
Attest:
City Secretary
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION
BY __________________________ ___
Title:
Mailing Address:
Corporate Trust Department
P. 0. Box550
Austin, Texas 78789
Delivery Address:
Corporate Trust Department
700 Lavaca, stt' Floor
Austin, Texas 78701
Designated Payment/Transfer Office:
Mailing Address:
Corporate Trust Department
P. 0. Box 660197
Dallas, Texas 75266-0197
Delivery Address:
Corporate Trust Department
2200 Ross Avenue, 5th Floor
Dallas, Texas 75201
CITY OF LUBBOCK, TEXAS
BY __________________________ __
Mayor
Address:
Exhibit"A"
Ordinance No. 10152
Page9
P. 0. Box 2000
Lubbock, Texas 79457
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
Exhibit B
to
Ordinance
The following information is referred to in Section 37 of this Ordinance.
Annual Financial Statements and Operating Data
The financial information and operating data with respect to the City to be
provided annually in accordance with such Section are as specified {and included in the
Appendix or under the headings of the Official Statement referred to) below:
1. The financial statements of the City appended to the Official Statement
as Appendix 8, but for the most recently concluded fiscal year.
2. The information contained in Tables 1 through 6 and SA through 20 of the
Official Statement.
Accounting Prin~iples
The accounting principles referred to in such Section are the generally accepted
accounting principles as applicable to governmental units as prescribed by The Government
Accounting Standards Board.
761852.1
AFFIDAVIT OF PUBLICATION
THE STATE OF TEXAS
COUNTY OF LUBBOCK
§
§
§
4, BEFORE ME, the undersigned authority an this day personally appeared .Jf:M_...
/A'/ of the Lubbock Avalanche-Journal, a newspaper
publishd in the County of Lubbock Texas, who, being by me duly swom, upon oath deposes
and says:
That said newspaper is of general circulation in the City of Lubbock, Textul, an~ that
the "NOTICE OF SALE", hereto attached, was published in said newspaper in its Issues ~f
b/cwu•;r IY , 1999;
&lh/41>' ,?/ '1999;
~:2( ¢'$ ,1999; =-£-7 ' 1999; d1na.4 /Y , 1999;
and said newspaper devotes not less than twenty-five percent (25%) of its total column lineage
to items of general interest, is published not less frequently than once each week, entered as
periodical postal matter in the county where it is published and has been published regularly and
continuously for not less than twelve (12) months prior to the date of the publication of said
"NOTICE OF SALE ...
1999.
SWORN TO AND SUBSCRIBED BEFORE ME, this the /£ day of .4Z coh ,
e. PHIUJP HERNANDEZ
Notary Public. Slltl or Texas
My COmmission Elpites
12-o4-2001
(Notary Seal)
THE STATE OF TEXAS
COUNTY OF LUBBOCK
AFFIDAVIT OF PUBLICATION
§
§
§
! BEFORE ME, the undersigned authority on this day personally appeared l)/'?9.t'U'!<f
q. /P.Y of the Lubbock Avalanche..Joumal, a newspaper published in
the CountY of Lubbock, Texas, who, being by me duly swom, upon oath deposes and says:
That said newspaper is of general circulation in the City of Lubbock, Texas, ai)d that
the "NOTICE OF INTENTION TO ISSUE CITY OF LUBBOCK, TEXAS, CERTIFICATES OF
OBLIGATION", hereto attached, was published in said newspaper in its issues of ...
£keAvy I</ , 1999; and
rtlrt!ql'tl /I I 1999; . /
and said newspaper devotes not less than twenty-five percent (25%) of its total column lineage
to items of general interest, is published not less frequently than once each week, entered as
periodical postal matter in the county where it is published and has been published regularly and
continuously for not Jess than twelve (12) months prior to the date of the publication of said
"NOTICE OF INTENTION TO ISSUE CITY OF LUBBOCK, TEXAS, CERTIFICATES OF
OBLIGATION".
1999.
SWORN TO AND SUBSCRIBED BEFORE ME, this the p_ day of ,£/cv.,1}" ,
e. PHIU.\P HERNANDEZ NotarY~~
t.ly 12.-04-2001
(Notary Seal)
1' 752931.1 .~
~
r------~ .......... ·. REC!F~'f t) .
FEB 2 5 1999
AFFIDAVIT OF PUBLICATION
THE STATE OF TEXAS
COUNTY OF LUBBOCK
§
§
§
,4 BEFORE ME, the undersigned authority on this day personally appeared .IJ..,AM .rh( · · of the Lubbock Avalanche-Journal, a newspaper p~biiSed in the County of Lubbock Texas, who, being by me duly sworn, upon oath deposes
and says:
That said newspaper is of general circulation in the City of Lubbock, Texas, and that
the "NOTICE OF SALE", hereto attached, was published in said newspaper in its issues of
1 1999;
'1999;
'1999;
'1999;
1 1999;
and said newspaper devotes not less than twenty-five percent (25%) of its total column lineage
to items of general interest, is published not less frequently than once each week, entered as
periodical postal matter in the county where it is published and has been published regularly and
continuously for not less. than twelve (12) months prior to the date of the publication of said
"NOTICE OF SALE".
TiUe~.-
SWORN TO AND SUBSCRIBED BEFORE ME, this the /5 day of ;11, rc ~ ,
1999.
(Notary Seal)
' ~ i/
. 4'~ ·-· '~
PHILLIP HERNANDEZ
Notary Public, State of Texas
My Commission Expires
12-o4-2001
~~u
NotarYP\Ji>nc, State ofifixas
-.IMI' I )
RECf~\IEO .
MAR 2 91999
NOTARY P LIC in and for the e of Texas
My Commission Expires ................. t2-4-;ZOOl
LUBBOCKAVALANCHE~OURNAL
Morris Communication Corporation
Subscribed and sworn to before me thi.,.s _--.~./:...._'/.s--_-'day of._~;J;,~~l.~:..' ..,· .,.../ ______ _..1999
FOR!\158-10
plD~DIDJXliiiDIXI:m:ra:amD:IIliiDDIB
PHIWP HERNANDEZ
Notary Public, Slate of Texas
My Commission Expires
12-04-2001