HomeMy WebLinkAboutOrdinance - 10170-1999 - City Of Lubbock Tax And Waterworks System Surplus Revenue Certificates - 06/24/1999I I I i . I
First Reading
June 24. 1999
Item[Ro. 18
Second Reading
Sept. 23. 1999
Item No. 37
ORDINANCE NO. 10170
AN ORDINANCE authorizing the issuance of "CITY OF LUBBOCK, TEXAS,
TAX AND WATERWORKS SYSTEM SURPLUS REVENUE CERTIFICATES
OF OBLIGATION, SERIES 1999"; specifying the tenns 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
Waterworks 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, a Purchase Contract
and an Escrow 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 $26,000,000 for the purpose of paying all or part of the City's
obligations incurred by contract for Interest in and rights to water in connection with a water supply
and transmission project to be constructed by the Canadian River Municipal Water Authority, and
to pay contracts for 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
detennined to be of general circulation in the City of Lubbock, Texas, on September 8, 1999 and
September 12, 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, the second reading and adoption of this Ordinance was postponed to the date
hereof to allow additional time for the Canadian River Municipal Water Authority to affinn the costs
of the water supply and transmission project; and
WHEREAS, no petition, protesting the issuan~ 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 detennines that $24,800,000 in principal amount
of the certificates of obligation described in such notice should be issued and sold at this time and
the principal amount of the certificate is an amount equal to the aggregate of the contractual
payments or the total costs allocated and attributable, under generally accounting principles, to the
capital costs of the project; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1: Authorization-Designation-Principal Amount-Purpose. Certificates of
obligation of the City shall be and are hereby authorized to be issued In the aggregate principal
amount of $24,800,000 to be designated and bear the title "CITY OF LUBBOCK, TEXAS, TAX AND
WATERWORKS SYSTEM SURPLUS REVENUE CERTIFICATES OF OBLIGATION, SERIES
1999" (the "Certificates"), for the pulpose of paying all or part of the City's obligations incurred by
contract for Interest in and rights to water In connection with a water supply and transmission project
780356.1
to be constructed by the Canadian River Municipal Water Authority, and to pay contracts for
professional services rendered in connection with such project and the financing thereof, pursuant
to authority conferred by and in confonnity with the Constitution and laws of the State of Texas,
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 fonn only; shall be dated
September 15, 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
2001 $ 745,000 5.00%
2002 785,000 4.25%
2003 815,000 4.40%
2004 855,000 4.50%
2005 895,000 4.60%
2006 935,000 4.70%
2007 985,000 4.80%
2008 1,030,000 5.00%
2009 1,085,000 5.00%
2010 1,140,000 5.00%
2011 1,200,000 5.50%
2012 1,270,000 5.25%
2013 1,335,000 5.375%
2014 1,410,000 5.375%
2015 1,490,000 5.50%
2016 1,575,000 5.50%
2017 1,665,000 5.60%
2018 1,760,000 5.625%
2019 1,860,000 5.25%
2020 1,965,000 5.70%
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
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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 U. S. Trust Company of Texas, N.A., Dallas, Texas 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 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 New York, New York (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
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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 subjed 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 satisfadory to the Paying
Agent/Registrar), the City shall notify the Paying Agent/Registrar of the decision to redeem
Certificates, the principal amount of each Stated Maturity to be redeemed, and the date of
redemption therefor. The decision of the City to exercise the right to redeem Certificates shall be
entered in the minutes of the governing body of the City.
(c) Seledlon 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 seled 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 PaymenVTransfer Office of the
Paying Agent/Registrar only upon presentation and surrender thereof by the Holder. If a
Certificate is subjed 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
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applicable redemption price are held for the purpose of such payment by the Paying
AgenfJRegistrar.
SECTION 5: Registration -Transfer -Exchange of Certificates-Predecessor
Certificates. The Paying AgenflRegistrar 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 PaymentJTransfer 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
surrender of the Certificates to be exchanged at the Designated PaymentJTransfer Office of the
Paying Agent/ Registrar. Whenever any Certificates are surrendered for exchange, the Paying
AgenfJRegistrar 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 PaymentJTransfer Office of the Paying AgenfJRegistrar 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
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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.
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.
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No Certificate shall be entitled to any right or benefit under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Certificate either a certificate of
registration substantially in the form provided in Section 9C, manually executed by the Comptroller
of Public Accounts of the State of Texas, or his duly authorized agent, or a certificate of
registration substantially in the form provided in Section 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 $24,800,000
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.
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.
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B. Form of Certificates.
REGISTERED REGISTERED
NO. $ __ _
Certificate Date:
September 15, 1999
Registered Owner:
Principal Amount:
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF LUBBOCK, TEXAS,
TAX AND WATERWORKS SYSTEM SURPLUS REVENUE
CERTIFICATE OF OBLIGATION,
Interest Rate:
_%
SERIES 1999
Stated Maturity: CUSIPNO:
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 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 Mall, 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.
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This Certificate is one of the series specified in its title issued in the aggregate principal
amount of $24,800,000 (herein referred to as the "Certificates") for the purpose of paying all or
part of the City's obligations incurred by contract for interest in and rights to water in connection
with a water supply and transmission project to be constructed by the Canadian River Municipal
Water Authority, and to pay contracts for 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 PaymenVTransfer Office of the Paying Agent/Registrar, and a
new Certificate or Certificates of like maturity and Interest rate in any authorized denominations
provided by the Ordinance for the then unredeemed balance of the principal sum thereof will be
issued to the registered owner, without charge. If a Certificate is selected for redemption, in whole
or in part, the City and the Paying Agent/Registrar shall not be required to transfer such Certificate
to an assignee of the registered owner within 45 days of the redemption date therefor; provided,
however, such limitation on transferability shall not be applicable to an exchange by the registered
owner of the unredeemed balance of a Certificate redeemed In part.
The Certificates are payable from the proceeds of an ad valorem tax levied, within the
limitations prescribed by Jaw, 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 Waterworks
System (the "System"), such lien and pledge, however, being junior and subordinate to the lien
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on and pledge of the Net Revenues of the System securing the payment of "Prior Lien Obligations"
(as defined in the Ordinance) herea~er 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
PaymenVTransferOffice of the Paying Agent/Registrar, with the Assignment hereon duly endorsed
by, or accompanied by a written Instrument of transfer in form satisfactory to the Paying
Agent/Registrar duly executed by, the registered owner hereof, or his duly authorized agent.
When a transfer on the Security Register occurs, one or more 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, (li) 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 Mall, first ctass postage prepaid,
to ~e address of each Holder appearing on the Security Register at the close of business on the
last business day next preceding the date of mailing of such notice.
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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 enforceabilityofthe 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.
CITY OF LUBBOCK, TEXAS
COUNTERSIGNED: Mayor
City Secretary
~t-·uc...
(SEAL) ~~
i. 1 ,c(/J--7
p \ l
780356.1 -11-
C. • Fonn of Registration Certificate of Comptroller of Public Accounts to Apoear 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. Fonn 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 New York, New York, is
the "Designated Payment/Transfer Office" for this Certificate.
Registration Date:
780356.1
U. S. TRUST COMPANY OF TEXAS, N.A.,
Dallas, Texas, as Paying Agent/Registrar
By ______ ~--------------------
Authorized Signature
-12-
I : It·
E. Form of Assignment.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto
(Print or typewrite name, address, and zip code of transferee:) ----------
(Social Security or other identifying number:-~-~------------
------------->the within Certificate and all rights thereunder, and hereby
irrevocably constitutes and appoints--------------------
attorney to transfer the within Certificate on the books kept for registration thereof, with full power
of substitution in the premises.
DATED: _________ __
Signature guaranteed:
NOTICE: The signature on this assignment
must correspond with the name of the
registered owner as it appears on the face
of the within Certificate in every particular ..
F. The Initial Certificate(s) shall be in the form setforth in paragraph B ofthis 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:
YEAR
780356.1
PRINCIPAL
INSTALLMENTS
INTEREST
RATE
(Information to be inserted from schedule in Section 2 hereof).
-13-
(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 3Ck:tay 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 U. S. Trust Company of Texas, N.A., Dallas, Texas (the
"Paying Agent/Registrar"), upon presentation and surrender, at its designated offices in New York,
New York (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:
780356.1
(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 $24,800,000 "CITY OF
LUBBOCK, TEXAS, TAX AND WATERWORKS SYSTEM SURPLUS 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 30th of each year; provided, however, the City Council may change,
by ordinance duly passed, such annual financial accounting period to end on
-14-
780056.1
I I
another date if such change is found and detennined to be necessary for
budgetary or other fiscal purposes.
(f) The tenn "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 fonn.
(g) The tenn "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 tenn "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 tenn "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 limfted 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 detennining
"Net Revenues".
(j) The tenn "Outstanding" when used in this Ordinance with respect
to Certificates means, as of the date of detennination, 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.
-15-
I '
(k) The term "Previously Issued Obligations" shall mean the
outstanding (I) "City of Lubbock, Texas, Combination Tax and Waterworks System
Subordinate Lien Revenue Certificates of Obligation, Series 1991 ", dated May 15,
1991 and (ii) "City of Lubbock, Texas, Tax and Waterworks System Surplus
Revenue Refunding Bonds, Series 1999", dated April 1, 1999.
(I) The term "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
Previously Issued Obligations and the Certificates.
(m) The term "Similarly Secured Obligations" shall mean the City's
Waterworks System, being all properties, facilities and plants currently owned,
operated and maintained by the City for the supply, treatment, transmission and
distribution of treated potable water, together with all future extensions,
Improvements, replacements and additions thereto.
(n) The term "System" shall mean the City's Waterworks System, being
all properties, facilities and plants currently owned, operated and maintained by the
City for the supply, treatment, transmission and distribution of treated potable
water, together with all future extensions, improvements, replacements and
additions thereto.
SECTION 11: Certificate Fund. For the purpose of paying the interest on and to provide
a sinking fund for the payment 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
WATERWORKS 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 Acr (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
780356.1 -16-
I ~
Certificate Fund shall be credited to, and any losses debited to, the said Certificate Fund. All
such· investments shall be sold promptly when necessary to prevent any default in connection
with the Certificates.
SECTION 12: Tax Lew. 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 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
bet\veen 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.
17
........... ~--------------------------------------------,---
(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 13: 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.
SECTION 14: 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, Waterworks 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 15: 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
18
-,-----~~--····---------------------------------~,.--
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.
SECTION 16: Security of Funds. All moneys on deposit in the Funds for which this
Ordinance makes provision (except any portion thereof as may be at any time property
invested) shall be secured in the manner and to the fullest extent required by the laws of Texas
for the security of public funds, and moneys on deposit in such Funds shall be used only for the
purposes permitted by this Ordinance.
SECTION 17: Special Covenants. The City hereby further covenants as follows:
(a) It has the lawful power to pledge the Net Revenues of the System
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 outstanding Previously Issued
Obligations, the Certificates, the "City of Lubbock, Texas, Tax and Waterworks
System (Limited Pledge) Rev~nue Certificates of Obligation, Series 1992", dated
August 15, 1992, "City of Lubbock, Texas, Tax and Waterworks System (Limited
Pledge) Revenue Certificates of Obligation, Series 1993", dated October 1, 1993,
"City of Lubbock, Texas, Tax and Waterworks System {Limited Pledge) Revenue
Certificates of Obligation, S$ries 1995", dated December 15, 1995, "City of
Lubbock, Texas, Tax and Waterworks System (Limited Pledge) Revenue
Certificates of Obligation, Series 1998", dated January 1, 1998, and "City of
Lubbock, Texas, Tax and Waterworks System (Limited Pledge) Revenue
Certificates of Obligation, Series 1999", dated January 15, 1999, 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.
19
i '
SECTION 18: Issuance of Prior Lien Obligations and Additional Obligations:
Subordinate to Prior Lien Obligations Covenants and Agreements. (a) 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 Previously Issued Obligations and the Certificates.
(b) 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 Citv. 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 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
20
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 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.
21
! l
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. oestroyed. Lost and Stolen Certificates. In case any Certificate
shall be mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar may execute and
deliver a replacement Certificate of like form and tenor, and in the same denomination and bearing
a number not contemporaneously outstanding, in exchange and substitution for such mutilated
Certificate, or in lieu of and in substitution for such destroyed, lost or stolen Certificate, only upon
the approval of the City and after (i} the filing by the Holder thereof with the Paying Agent/Registrar
of evidence satisfactory to the Paying Agent/Registrar of the destruction, loss or theft of such
Certificate, and of the authenticity of the ownership thereof and (ii) the furnishing to the Paying
Agent/Registrar of indemnification in an amount satisfactory to hold the City and the Paying
Agent/Registrar harmless. All expenses and charges associated with such indemnity and with the
preparation, execution and delivery of a replacement Certificate shall be borne by the Holder of
the Certificate mutilated, or destroyed, lost or stolen.
Every replacement Certificate issued pursuant to this Section shall be a valid and binding
obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably with all
other Outstanding Certificates; notwithstanding the enforceability of payment by anyone of the
destroyed, lost or stolen Certificates.
The provisions of this Section are exclusive and shall preclude (to the extent lawful} all
other rights and remedies with respect to the replacement and payment of mutilated, destroyed,
lost, or stolen Certificates.
SECTION 24: Coyenants 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.
780356.1 -22-
~~~~-~~···-------------------------------
"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 103 of the Internal Revenue Code of 1954, which are applicable to the
Certificates. Any reference to any specific Regulation shall also mean, as
appropriate, any proposed, temporary or final Income Tax Regulation designed to
supplement, amend or replace the specific Regulation referenced.
"Yield" of
(1) any Investment has the meaning set forth in Section
1.148-5 of the Regulations; and
(2) the Certificates has the meaning set forth in Section
1.148-4 of the Regulations.
B. Not to Cause Interest to Become Taxable. The City shall not use, permit the use
of, or omit to use Gross Proceeds or any other amounts (or any property the acquisition,
construction or improvement of which is to be financed directly or indirectly with Gross Proceeds)
in a· manner which if made or omitted, respectively, would cause the interest on any-Certificate to
become includable In the gross income, as defined In section 61 of the Code, of the owner thereof
for federal income tax purposes. Without limiting the generality of the foregoing, unless and until
the City receives a written opinion of counsel nationally recognized In the field of municipal bond
law to the effect that failure to comply with such covenant will not adversely affect the exemption
780356.1
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 Yjeld. 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.
780356.1 -24-
i i
F. Not Federally Guaranteed. Except to the extent permitted by section 149(b) of the
Code and the Regulations and rulings thereunder, the City shall not take or omit to take any action
which would cause the Certificates to. be federally guaranteed within the meaning of section 149(b)
of the Code and the Regulations and rulings thereunder.
G. Information Report The City shall timely file the information required by section
149(e) of the Code with the Secretary of the Treasury on Form 8038-G or such other form and in
such place as the Secretary may prescribe.
H. Rebate of Arbitrage Profits. Except to the extent otherwise provided in section
148(f) of the Code and the Regulations and rulings thereunder:
780356.1
(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-Tor such other forms and information as is or may be
required by Section 148(f) of the Code and the Regulations and rulings thereunder.
-25-
I .
(4) The City shall exercise reasonable diligence to assure that no errors
are made in the calculations and payments required by paragraphs (2) and (3),
and if an error is made, to discover and promptly correct such error within a
reasonable amount of time thereafter (and in all events within one hundred eighty
(180) days after discovery of the error), including payment to the United States of
any additional Rebate Amount owed to it, interest thereon, and any penalty
imposed under Section 1.148-3(h) of the Regulations.
I. Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of the
Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the earlier
of the Stated Maturity or final payment of the Certificates, enter Into any transaction that reduces
the amount required to be paid to the United States pursuant to Subsection H of this Section
because such transaction results in a smaller profit or a larger loss than would have resulted if the
transaction had been at arm's length and had the Yield of the Certificates not been relevant to
either party.
J. Elections. The City hereby directs and authorizes the Mayor, 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 -Official Statement Aoproval The Certificates
authorized by this Ordinance are hereby sold by the City to Siebert Brandford Shank & Co., LLC,
J. C. Bradford & Company, Inc., Morgan Keegan & Company, Inc., Estrada Hinojosa & Company,
Inc. and Southwest Securities (herein collectively referred to as the "Purchasers") in accordance
with the Purchase Contract, dated September 23, 1999, attached hereto as Exhibit B and
incorporated herein by reference as a part of this Ordinance for all purposes. The Mayor and City
Secretary are hereby authorized and directed to execute said Purchase Contract for and on behalf
of the City and as the act and deed of this Council, and in regard to the approval and execution
of the Purchase Contract, the Council hereby finds, determines and declares that the
representations, warranties and agreements of the City contained therein are true and correct in
all material respects and shall be honored and performed by the City.
Furthermore, the use of the Official Statement by the Purchasers in connection with the
public offering and sale of the Certificates is hereby ratified, confirmed and approved in all
respects. The final Official Statement, which reflects the terms of sale, attached as Exhibit A to
the Purchase Contract (together with such changes approved by the Mayor, City Manager, First
Assistant to City Manager, Managing Director of Finance or City Secretary, one or more of said
officials), shall be and is hereby in all respects approved and the Purchasers are hereby
authorized to use and distribute said final Official Statement, dated September 23, 1999, in the
reoffering, sale and delivery of the Certificates to the public. The Mayor and City Secretary are
further authorized and directed to manually execute and deliver for and on behalf of the City
copies of said Official Statement in final form as may be required by the Purchasers, and such final
Official Statement in the form and content manually executed by said officials shall be deemed to
780356.1 -26-
! ;
be approved by the City Council and constitute the Official Statement authorized for distribution
and use by the Purchasers.
SECTION 26: Escrow Agreement Approval and Execution. The "Esaow Agreement"
(the "Agreement") by and between the City and U. S. Trust Company of Texas, N.A., Dallas,
Texas (the "Escrow Agent"), attached hereto as Exhibit C and Incorporated herein by reference
as a part of this Ordinance for all purposes, is hereby approved as to form and content, and such
Agreement in substantially the form and substance attached hereto, together with such changes
or revisions as may be necessary to accomplish the financing, is hereby authorized to be executed
by the Mayor and City Secretary for and on behalf of the City and as the act and deed of the City
Council; and such Agreement as executed by said officials shall be deemed approved by the City
Council and constitute the Agreement herein approved.
SECTION 27: Proceeds of Sale. Immediately following the delivery of the Certificates,
the proceeds of sale {less certain costs of Issuance and the accrued interest received from the
Purchasers) shall be deposited with the Escrow Agent for application and disbursement in
accordance with the provisions of the Agreement. The proceeds of sale of the Certificates not
initially deposited with the Escrow Agent, including investment earnings thereon and amounts
returned to the City pursuant to the Agreement, shall be disbursed for payment of costs of
issuance or deposited in the Certificate Fund for the Certificates to be maintained at the City"s
depository bank. all in accordance with written instructions. 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 aedit 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.
Furthermore, the Mayor, City Seaetary. 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 fumish 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.
780356.1 -27-
! :
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 orirnplied, 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.
SECTION 36: Construction of Tenns. 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:
780356.1 -28-
! r ..
"MSRB' means the Municipal Securities Rulemaking Board.
"NRMSIFr' 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.
"SIC1' 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 25 of this Ordinance,
being the information described in Exhibit D hereto. Financial statements to be provided shall be
(1) prepared in accordance with the accounting principles described In Exhibit D 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:
780356.1
1.
2.
3.
4.
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;
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! ·~
5. Substitution of credit or liquidity providers, or their failure to perform;
6. Adverse tax .opinions or events affecting the tax-exempt status of the
Certificates;
7. Modifications to rights of holders of the Certificates;
8. Certificate calls;
9. Defeasances;
10. Release, substitution, or sale of property securing repayment of the
Certificates; and
11. Rating changes.
The City shall notify 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 ttie 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 act to disclaim, waive, or otherwise limit ·
the duties of the City under federal and state securities laws.
780356.1 -30-
! 1
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.
780356.1 -31-
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, June 24,1999.
PASSED AND ADOPTED ON SECOND AND FINAL READING, this the 23rd day of
September, 1999.
CITY OF LUBBOCK, TEXAS
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780356.1 -32-
I i
PAYING AGENT/REG!STRAH AGREE~"~ENT
I
Ordinance No. 10170
Exhibit A
i THIS AGREEMENT entered into as of September 23, 1999 (this "Agreement"), by and
betw~en the City of Lubbock, Texas (the "Issuer"), and U.S. Trust Company of Texas, N.A., 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 issuance of its "City of
Lub~ock, Texas, Tax and Waterworks System Surplus· Revenue Certificates of Obligation, Series
1999" (the "Securities") in the aggregate principal amount of $24,800,000, which Securities are sche~uled to be delivered to the initial purchasers on or about October 20, 1999; and
I
I WHEREAS, the Issuer has selected and the Bank has agreed to serve as Paying
Agent/Registrar in connection with the payment of the principa! of, premium, if any, and interest
on s~id Securities and with respect to the registration, transfer and exchange thereof by the
regijtered owners; and
I WHEREAS, the Bank represents it has full power and authority to perform and serve as
Paytg Agent/Registrar for the Securiti~s;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
1 Section 1.01. Appointment. The Issuer hereby appoints the Bank to serve as
Payipg Agent with respect to the Securities, and, as Paying Agent for the Securities, the Bank
shallj be responsible for paying on behalf of the Issuer the principal, premium (if any), and interest
on t~e 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 here~y appoints the Bank as Registrar with respect to the Securities and, as Registrar for the
Sec~rities, 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•.
i i : The Bank hereby accepts its appointment, and agrees to serve as the Paying Agent and
Registrar for the Securities.
I
1 Section 1.02. Compensation. As compensation for the Bank's services as Paying Age~t/Registrar, the Issuer hereby agrees to pay the Bank the fees and amounts set forth in
Annfx A attached hereto.
I 7976~1
I
I ;
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:
'797696.1
"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 office of the Bank as indicated on page 9 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, 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
"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).
-2-
i j ., .•
' I
"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 at the following
offices:
By Hand:
U. S. Trust Company
of Texas, N.A.
111 Broadway
Lower Level
New York, New York 10006-1906
Bv Mail:
U. S. Trust Company
of Texas, N.A.
P. 0. Box841
Cooper Station
New York, New York 10276
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
797696.1 -3-
I i
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.
Section 3.02. Payment Oates. 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. Securitv 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 Registe..-) 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. The Bank represents and warrants its office in
Dallas, Texas will at all times have immediate access to the Security Register by electronic or
other means and will be capable at all times of producing a hard copy of the Security Register at
its Dallas office for use by the Issuer. AJI 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
m696.1 -4-
I I I
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 effed 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 currenUy available and currenUy 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.
Sedion 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 insped 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.
Sedion 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. Destroved. Lost or Stolen Securities. The Issuer hereby instruds
the Bank. subjed 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 satisfadory to the Bank of the destrudion, 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 satisfadory 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.
797696.1 -5-
•
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.
(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.
797696.1 -6-
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. Monevs 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.
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, retum 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.
'19'1696.1 -7-
Section 5.08. DT Servjces. 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 9.
Section 6.04. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 6.05. Successors and Assigns. All covenants and agreements herein by the
Issuer shall bind its successors and assigns, whether so expressed or not.
Section 6.06. Severability. In case any provision herein shall be invalid, illegal, or
unenforceable, the validity,legality, and enforceability of the remaining provisions shall not in any
way be affected or Impaired thereby.
Section 6.07. Benefits of Agreement. Nothing herein, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, any benefit or any legal or
equitable right, remedy, or claim hereunder.
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.
797696.1 -8-
I !
•
Section 6.1 0. Tennlnation. This Agreement will tenninate (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
tennlnated by either party upon sixty (60) days written notice; provided, however, an early
tennination 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.
Furthennore, the Bank and Issuer mutually agree that the effective date of an early tennination
of this Agreement shall not occur at any time which would disrupt, delay or otherwise adversely
affect the payment of the Securities.
Upon an early tennination ofthis 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 tennination of this Agreement.
Section 6.11. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
Title)Jice PRJ:StDENT
-{CITY SEAL) ~
:; Attest
-c,J<~~(~~
797696.1
Address: 2001 Ross Ave., Suite 2700
Dallas, Texas 75201
:~*~ Mayor
Address:
-9-
P. 0. Box 2000
Lubbock, Texas 79457
•
US. TRUST
Schedule A
Fee Schedule
$24,800,000
City of Lubbock, TX
Corporate Trust and
Agency Services
ANNEXA
Tax and Waterworks System Surplus Revenue
Certificates of Obligation, Series 1999
Escrow Agent Fees payable in advance:
Paying Agent/Registrar Fees payable in advance:
Annual Fee
Due at closing
Dated: 09/27/99
$1,000.00
$450.00
$1.450.00
$1,450.00
. ! I 1
$24,800,000
CITY OF LUBBOCK, TEXAS
Tax and Waterworks System Surplus Revenue
Certificates of Obllgation,
Series 1999
PURCHASE CONTRACT
September 23, 1999
The Honorable Mayor and Members of the City Council
City of Lubbock .
1625 13th St.
Lubbock, Texas 79401
Dear Mayor and Members of the City Council:
ORDIBANCE NO. 10170
IJillilT B
+o or-& rtd.r--~
Siebert Brandford Shank & Co., L.L.C. (the "Authorized Representative"), J.C. Bradford &
Company, Morgan Keegan & Company, Inc., Estrada Hinojosa & Company, Inc. and Southwest
Securities, Inc. (collectively, the ''Underwriters''), offer to enter into this Purchase Contract with the
City of Lubbock, Texas (the "City"). This offer is made subject to the City's acceptance of this
Purchase Contract on or before 9:00 p.m. Central Time on September 23, 1999.
1. Purchase and Sale of the Certificates. Upon the terms and conditions and upon the
basis of the representations set forth herein, the Underwriters jointly and severally hereby agree to
purchase from the City, and the City hereby agrees to sell and deliver to the Underwriters an
aggregate of $24,800,000 principal amount of City of Lubbock, Texas Tax. and Waterworlcs System
Swplus Revenue Certificates of Obligation, Series 1999 (the "Certificates"). The Certificates shall
have the maturities, interest rates and be subject to redemption in accordance with the provisions of
Exlnbit A hereto and shall be issued and secured under the provisions of the Ordinance (as defined
below). The purchase price for the Certificates shall be $24,456,280.87 (representing the principal
amount of the Certificates, less an Underwriters' discount of $152,520, less an original issue discolUlt
of$316,691.75, and plus accrued interest in the amount of$125,492.62).
Siebert Brandford Shank & Co., L.LC. represents that it has been duly authorized to execute
this Purchase Contract and has been duly authorized to act hereunder as the Authorized
Representative. All actions that may be taken by the Underwriters may be taken by the Authorized
Representative alone.
2. Ordinance. The Certificates shall be as described in and shall be issued and secured
under the provisions of the Ordinance authorizing the issuance and sale of the Certificates adopted
by the City on September 23, 1999 (the "Ordinance"). The Certificates shall be secured and payable
as provided in the Ordinance.
3. Public Offering. It shall be a condition of the obligations of the City to sell and deliver
the Certificates to the Underwriters, and of the obligations of the Underwriters to purchase and
accept delivery of the Certificates, that the entire principal amount of the Certificates authorized by
the Ordinance shall be sold and delivered by the City and accepted and paid for by the Underwriters
at the Closing. The Underwriters agree to make a bona fide public offering of all of the Certificates,
at not in excess of the initial public offering prices, as set forth in the Official Statement, plus interest
accrued on the Certificates from the date of the Certificates.
4. Security Deposit. Delivered to the City herewith is a corporate check of the Authorized
Representative payable to the order of the City in the amount of $260,000. The City agrees to hold
such check uncashed until the Closing to ensure the performance by the Underwriters of their
obligation to purchase, accept delivery of and pay for the Certificates at the Closing. Concurrently
with the payment by the Underwriters of the purchase price of the Certificates, the City shall return
such check to the Authorized Representative as provided in Paragraphs 7 and 8 hereof. Should the
City fail to deliver the Certificates at the Closing, or should the City be unable to satisfy the ·
conditions of the obligations of the Underwriters to purchase, accept delivery of and pay for the
Certificates, as set forth in this Purchase Contract (unless waived by the Authorized Representative),
or should such obligations of the Underwriters be terminated for any reason permitted by this
Purchase Contract, such check shall immediately be returned to the Authorized Representative. In
the event the Underwriters fail (other than for a reason permitted hereunder) to purchase, accept
delivery of and pay for the Certificates at the Closing as herein provided, such check shall be retained
by the City as and for full liquidated damages for such failure of the Underwriters and for any defaults
hereunder on the part of the Underwriters. The Authorized Representative hereby agrees not to stop
or cause payment on said check to be stopped unless the City has breached any of the terms of this
Purchase Contract
5. Official Statement. The Official Statement, including the cover pages and Appendices
thereto, of the City, dated September 23, 1999, with respect to the Certificates, as further amended
only in the manner herein provided, is hereinafter called the "Official Statement" The City hereby
authorizes the Ordinance and the Official Statement and the infonnation therein contained to be used
by the Underwriters in cormection with the public offering and sale of the Certificates. The City
confinns its consent to the use by the Underwriters prior to the date hereof of the Preliminary Official
Statement, relative to the Certificates, dated September 1, 1999 (the "Preliminary Official
Statement"), in cormection with the preliminary public offering and sale of the Certificates, and it is
"deemed final" as of its date, within the meaning, and for the purposes, of Rule 15c2-12 promulgated
under authority granted by the federal Securities and Exchange Act of 1934 (the "Rule"). The City
agrees to cooperate with the Underwriters to provide a supply of final Official Statements within
seven business days of the date hereof in sufficient quantities to comply with the Underwriters'
obligations under the Rule and the applicable rules of the Municipal Securities Rulemaking Board
2
EXBJBII B
I :
The Underwriters will use their best efforts to assist the City in the preparation of the final Official
Statement in order to ensure compliance with the aforementioned rules.
If at any time after the date of this Purchase Contract but before the first to occur of (i) the date
upon which the Underwriters notify the City that the period of the initial public offering of the
Certificates has expired or (ii) the date that is 90 days after the date hereof, any event shall occur that
might or would cause the Official Statement to contain any untrue statement of a material fact or to
omit to state a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, the City shall notify
the Authorized Representative, and if, in the opinion of the Authorized Representative, such event
requires the preparation and publication of a supplement or amendment to the Official Statement, the
City will at its expense supplement or amend the Official Statement in the form and in a marmer
approved by the Authorized Representative and furnish to the Underwriters a reasonable number of
copies requested by the Authorized Representative in order to enable the Underwriters to comply
with the Rule.
To the best knowledge and belief of the City, the Official Statement contains infonnation,
irduding financial information or operating data, as required by the Rule. The Issuer has not failed
to comply with any undertaking specified in paragraph (bXSXi) of the Rule within the last five years.
6. Representations, Warranties and Agreements of the City. On the date hereof, the
City represents, warrants and agrees as follows:
(a) The City is a home rule municipality and a political subdivision of the State of Texas
and a body politic and corporate, and has full legal right, power and authority to enter into this
Purchase Contract, to adopt the Ordinance, to sell the Certificates, and to issue and deliver the
Certificates to the Underwriters as provided herein and to carry out and consummate all other
transactions contemplated by the Ordinance and this Purchase Contract;
(b) By official action of the City prior to or concurrently with the acceptance hereof,
the City has duly adopted the Ordinance, has duly authorized and approved the execution and
delivery of, and the performance by the City of the obligations contained in the Certificates and
1his Purchase Contract and has duly authorized and approved the performance by the City of
its obligations contained in the Ordinance and in this Purchase Contract;
(c) The City is not in breach of or default under any applicable law or administrative
regulation of the State of Texas or the United States (including regulations of its agencies) or
any applicable judgment or decree or any loan agreement, note, order, agreement or other
instrument, except as may be disclosed in the Official Statement, to which the City is a party
or to the knowledge of the City it is otherwise subject, that would have a material and adverse
effect upon the business or financial condition of the City; and the execution and delivery of this
Purchase Contract by the City and the execution and delivery of the Certificates and the .
adoption of the Ordinance by the City and compliance with the provisions of each thereof will
not violate or constitute a breach of or default under any existing law, administrative regulation,
3 EXHIBIT B ·ld
I I.
judgment, decree or any agreement or other instrument to which the City is a party or, to the
knowledge of the City, is otherwise subject;
(d) All approvals, consents and orders of any govennnental authority or agency having
jurisdiction of any matter that would constitute a condition precedent to the performance by the
City of its obligations to sell and deliver the Certificates hereunder will have been obtained prior
to the Closing;
(e) At the time of the City's acceptance hereof and at the time of the Closing, the
Official Statement does not and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circwnstances under which they were made, not misleading;
(f) Between the date of this Purchase Conttact and the Closing, the City will not,
without the prior written consent of the Underwriters, issue any additional bonds, notes or other
obligations for borrowed money payable in whole or in part from ad valorem taxes, and the City
will not incur any material liabilities, direct or contingent, nor will there be any adverse change
of a material nature in the financial position of the City;
(g) Except as descnOed in the Official Statement, no litigation is pending or, to the
knowledge of the City, threatened in any cotnt affecting the corporate existence of the City, the ·
ti1le of its officers to their respective offices, or seeking to restrain or enjoin the issuance or
delivery of the Certificates, the levy, collection or application of the ad valorem taxes pledged
or to be pledged to pay the principal of and interest on the Certificates, or in any way contesting
or affecting the issuance, execution, delivery, payment, security or validity of the Certificates,
or in any way contesting or affecting the validity or enforceability of the Ordinance or this
Purchase Contract, or contesting the powers of the City, or any authority for the Certificates,
the Ordinance or this Purehase Conttact or contesting in any way the completeness, accuracy
or fairness of the Preliminazy Official Statement or the Official Statement;
(h) Til! City will coopemte with the Underwriters in arranging for the qualification of
the Certificates for sale and the detemiination of their eligibility for investment under the laws
of such jurisdictions as the Authorized Representative designates, and will use its best efforts
to continue such qualifications in effect so long as required for distnbution of the Certificates;
provided, however, that the City will not be required to execute a consent to service of process
or to qualify to do business in connection with any such qualification in any jmisdiction;
(i) Til! descriptions of the Certificates and the Ordinance contained in the Official
Statement accurately summarize certain provisions of such instruments, and the Certificates,
when validly executed, authenticated and delivered in accordance with the Ordinance and sold
to the Underwriters as provided herein, will be validly issued and outstanding obligations of the
City entitled to the benefits ot: and subject to the limitations contained in, the Ordinance;
(j) If prior to the Closing an event occurs affecting the City that is materially adverse
for the purpose for which the Official Statement is to be used and is not disclosed in the Official
4
EXHIBIT Bill
Statement, the City shall notify the Authorized Representative, and if in the opinion of the City
and the Authorized Representative such event requires a supplement or amendment to the
Official Statement, the City will supplement or amend the Official Statement in a form and in
a manner approved by the Authorized Representative;
(k) 100 financial statements contained in the Official Statement present fhlrly the
financial position of the City as of the date and for the period covered thereby and are stated
on a basis substantially consistent with that of the prior yeats audited financial statements;
(l) Any certificate signed by any official of the City and delivered to the Underwriters
shall be deemed a representation and warranty by the City to the Underwriters as to the truth
of the statements therein contained;
(m) 100 City has not been notified of any listing or proposed listing by the Internal
Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be
relied upon; and
(n) The City will not knowingly take or omit to take any action, which action· or
omission will in any way cause the proceeds from the sale of the Certificates to be applied in.
a manner other than as provided in the Ordinance or that would cause the interest of the
Certificates to be includable in gross income of the holders thereof for federal income tax
purposes.
7. Closing. At 10:00 AM., Central Time, on October 20, 1999 (the "Closing"), the City will
deliver the initial Certificates (as defined in the Ordinance) to the Underwriters and the City shall take
appropriate steps to provide DTC with one definite securities certificate for each year of maturity of
the Certificates, and ·to provide the Underwriters with the other documents hereinafter mentioned.
On or prior to the date of Closing, the Underwriters shall make arrangements with The Depository
Trust Company ("DTC") for the Certificates to be immobilized and thereafter traded as book-entry
only securities and on the date of Closing the Underwriters will accept such delivery and pay the
purchase price of the Certificates as set forth in Paragraph 1 hereof in immediately available funds.
Concurrently with such payment by the Underwriters, the City shall return to the Authorized
Representative the check referred to in paragraph 4 hereof. Delivery and payment as aforesaid shall
be made at the office of Fulbright & Jaworski L.L.P., 2200 Ross Avenue, Suite 2800, Dallas, Texas
75201, or such other place as shall have been mutually agreed upon by the City and the Authorized
Representative.
8. Conditions. The Underwriters have entered into this Purchase Contract in reliance upon
the representations and wammties of the City contained herein and to be contained in the documents
and instruments to be delivered at the Closing, and upon the performance by the City of its
obligations hereunder, both as of the date hereof and as of the date of Closing. Accordingly, the
Underwriters' obligations under this Purchase Contract to purchase and pay for the Certificates shall
be subject to the performance by the City of its obligations to be performed hereunder and under such
documents and instruments at or prior to the Closing, and shall also be subject to the following
conditions:
s
EXHIBIT B
(a) ~ representations and warranties of the City contained herein shall be true,
complete and correct in all material respects on the date hereof and on and as of the date of
Oosing, as if made on the date of Oosing;
(b) At the time of the Qosing, (i) the Ordinance shall be in full force and effect, and the
Ordinance shall not have been amended, modified or supplemented and the Official Statement
shall not have been amended, modified or supplemented, except as may have been agreed to by
the Authorized Representative; and (ii) the net proceeds of the sale of the Certificates shall be
deposited and applied as described in the Official Statement and in the Ordinance;
(c) At the time of the Oosing, all official action of the City related to the Ordinance
shall be in full force and effect and shall not have been amended, modified or supplemented;
(d) ~ City shall not have failed to pay principal or interest when due on any of its
outstanding obligations for borrowed money;
(e) At or prior to the Closing, the Underwriters shall have received each of the
following documents:
(1) The Official Statement of the City executed on behalf of the City by the Mayor
and City Secretary;
(2) ~ Ordinance certified by the City Secretary under the seal of the City as
having been duly adopted by the City and as being in effect, with such changes or
amendments as may have been agreed to by the Undetwriters, the Ordinance shall contain
the agreement of the City, in form satisfactory to the Underwriters, that is descnDed
under the caption "Continuing Disclosure of lnfonnation" in the Preliminaty Official
Statement;
(3) ~opinion, dated the date of Closing, of Fulbright & Jaworski L.L.P. (''Bond
Counsel") in substantially the fonn and substance of Appendix C to the Official
Statement;
(4) An opinion or certificate, dated on or prior to the date of Oosing, of the
Attorney General of Texas, approving the Certificates as required by law and the
registmtion certificate of the Comptroller of Public Accounts of the State of Texas;
(5) The supplemental opinion or opinions, dated the date of Oosing, of Bond
Counsel, addressed to the City and the Underwriters, which provides that the
Underwriters may rely upon the opinion of Bond Counsel delivered in accordance with
the provisions of pamgraph 8(f)(3) hereof, and opining to the effect that (a) the Purchase
Contract has been duly authorized, executed and delivered by the City and (assuming due
autl:mization by the Underwriters) constitutes a binding and enforceable agreement of the
City in accordance with its terms; (b) in its capacity as Bond Counsel, such firm has
reviewed the information in the Official Statement under the captions or subcaptions
6
EXBIBJT B
subcaptions "The Certificates" (exclusive of the infonnation under the subcaptions ''Book-
Entry Only System" and "Bondholders' Remedies"), "Tax Matters," "Legal Investments
and Eligibility to Secure Public Funds in Texas," ''Legal Opinions and No-Litigation
Certificate" (exclusive of the 1ast sentence thereof) and "Continuing Disclosure of
Information" (exclusive of the infonnation under the subcaption "Compliance with Prior
Undertakings") and such firm is of the opinion that such descriptions present a fair and
accurate Sl.l111ID8IY of the . provisions of the laws and instruments therein descnbed and,
with respect to the Certificates, such infonnation conforms to the Ordinance; and (c) the
Certificates are exempt from registration pursuant to the Securities Act of 1933, as
amended, and the Ordinance is exempt from qualification as an indenture pursuant to the
Trost Indenture Act of 1939, as amended;
(6) An opinion of McCall, Parkhurst & Horton L.L.P., Underwriters' Counsel
addressed to the Underwriters, and dated the date of Closing to the effect that (i) the
Certificates are exempt securities within the meaning of Section 3(aX2) of the Securities
Act of 1933, as amended, and it is not necessary in connection with the sale of the
Certificates to the public to register the Certificates under the Securities Act of 1933, as
amended, or to qualify the Ordinance under the Trust Indenture Act of 1939, as amended;
and (u) in their participation in the preparation of the Official Statement, nothing bas ..
come to the attention of said firm that would lead them to believe that the Official ·
Statement (excluding the financial and statistical data and forecasts included therein, all .
as to which no view need be expressed) contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(7) A certificate, dated the date of Closing, signed by the City Manager and
Director of Financial Services of the City, to the effect that (i) the representations and
warrantieS of the City contained herein are true and correct in all material respects on and
as of the date of Closing as if made on the date of Closing; (ii) except to the extent
disclosed in the Official Statement, no litigation is pending or, to the knowledge of such
persons, threatened in any court to restrain or enjoin the issuance or delivexy of the
Certificates, or the levy, collection or application of the ad valorem taxes pledged or to
be pledged to pay the principal of and interest on the Certificates, or the pledge thereof,
or in any way contesting or affecting the validity of the Certificates, the Ordinance or this
Purchase Contract, or contesting the powers of the City or the authorization of the
Certificates or the Ordinance, or contesting in any way the accuracy, completeness or
fairness of the Official Statement (but in lieu of or in corgunction with such certificate, the
Underwriters may, in their sole discretion, accept certificates or opinions of the City
Attoriey that, in the opinion thereof, the issues raised in any such pending or threatened
litigation are without substance or that the contentions of all plaintiffs therein are without
merit); (iii) to the best of their knowledge, no event affecting the City bas occurred since
the date of the Official Statement that should be disclosed in the Official Statement for the
purpose for which it is to be used or that it is necessary to disclose therein in order to
make the statements and infonnation therein not misleading in any respect; and (iv) that
there has not been any material and adverse change in the affairs or financial condition of
7
EXBIJJJT B
the City since September 30, 1998, the latest date as to which audited financial
infonnation is available;
(8) An opinion of the City Attorney addressed to the Underwriters and dated the
date of Closing substantially in the form and substance of Exhibit B hereto;
(9) A certificate, dated the date of the Closing, of an appropriate officer of the
City to the effect that, on the basis of the facts, estimates and circumstances in effect on
the date of delivery of the Certificates, it is not expected that the proceeds of the
Certificates will be used in a manner that would cause the Certificates to be arbitrage
bonds within the meaning of Section 148 of the Internal Revenue Code of 1986, as
amended;
(10) Evidence of the mting on the Certificates, which shall be "Aa2" or better by
Moody's Investors Service, Inc. ("Moody's"), "AA" or better by Standard and Poor's
Corporation, a division of the McGmw-Hill Companies, Inc. ("S&P"), and "AA" or better
by Fitch ffiCA, Inc., shall be delivered in a fonn acceptable to the Underwriters; and
(11) Such additional legal opinions, certificates, instruments and other documents
as Bond Counsel or the Underwriters may reasonably request to evidence the trUth, ·
accuracy and completeness, as of the date hereof and as of the date of Closing, of the .
City's representations and warranties contained herein and of the statements and
infonnation contained in the Official Statement and the due perfonnance and satisfaction
by the City at or prior to the date of Closing of all agreements then to be perfonned and
all conditions then to be satisfied by the City.
All of the opinions, letters, certificates, instruments and other documents mentioned above or
elsewhere in this Purchase Contract shall be deemed to be in compliance with the provisions hereof
if. but only if. they are satisfactory to the Underwriters.
If the City shall be unable to satisfy the conditions to the obligations of the Underwriters to
purchase, to accept delivery of and to pay for the Certificates as set forth in this Purchase Contract,
or if the obligations of the Underwriters to purchase, to accept delivery of and to pay for the
Certificates shall be tenniDated for any reason pennitted by this Purchase Contract, this Purchase
Contract shall tenninate, the security deposit referred to in Paragraph 4 of this Purchase Contract
shall be returned to the Authorized Representative and neither the Underwriters nor the City shall be
under further obligation hereunder, except that the respective obligations of the City and the
Underwriters set forth in Paragraphs 10 and 12 hereof shall continue in full force and effect
9. Termination. The Underwriters may tenninate their obligation to purchase at any time
before the Closing if any of the fullowing should occur:
(a) (i) Legislation shall bave been enacted by the Congress of the United States, or
recommended to the Congress for passage by the President of the United States or favorably
reported for passage to either House of the Congress by any Committee of such House; or (ii) a
8
--~IT B ..
decision shall have been rendered by a court established under Article m of the Constitution
of the United States or by the United States Tax Court; or (iii) an order, ruling or regulation
shall have been issued or proposed by or on behalf of the Treasury Department of the United
States or the Internal Revenue Service or any other agency of the United States; or (iv) a
release or official statement shall have been issued by the President of the United States or by
the Treasury Department of the United States or by the Internal Revenue Service, the effect of
which, in any such case descnbed in clause (i), (ii), (iii), or (iv), would be to impose, directly
or indirectly, federal income taxation upon interest received on obligations of the general
character of the Certificates or upon income of the general character to be derived by the City,
other than any imposition of federal income taxes upon interest received on obligations of the
general character as the Certificates on the date hereof and other than as disclosed in the
Official Statement, in such a manner as in the judgment of the Authorized Representative would
materially impair the marketability or materially reduce the market price of obligations of the
general character of the Certificates.
(b) Any action shall have been taken by the Securities and Exchange Commission or by
a court that would require registration of any security under the Securities Act of 1933, as
amended, or qualification of any indenture under the Trust Indenture Act of 1939, as amended,
in connection with the public offering of the Certificates, or any action shall have been taken
by any court or by any governmental authority suspending the use of the Preliminary Official
Statement or the Official Statement or any amendment or supplement thereto, or any
proceeding for that purpose shall have been initiated or threatened in any such court or by any
such authority.
(c) (i) The Constitution of the State of Texas shall be amended or an amendment shall
be proposed; or (ii) legislation shall be enacted; or (iii) a decision shall have been rendered as
to matters of Texas law; or (iv) any order, ruling or regulation shall have been issued or
proposed by or on behalf of the State of Texas by an official, agency or department thereof,
affecting the tax status of the City, its property or income, its bonds or other obligations
(including the Certificates) or the interest thereon, that in the judgment of the Authorized
Representative would materially affect the market price of the Certificates.
(d) (i) A general suspension of tmding in securities shall have occurred on the New
York Stock Exchange; or (ii) the United States shall have become engaged in hostilities
(including the escalation of any hostilities existing on the date hereof, whether foreseeable), the
effect of which, in either case .descnbed in clause (i) and (ii), that, in the judgment of the
Authorized Representative, would materially affect the market price of the Certificates.
(e) An event descnbed in Paragraph 6(j) hereof occurs that, in the opinion of the
Authorized Representative, requires a supplement or amendment to the Official Statement that
is deemed by them, in their discretion, to adversely affect the market for the Certificates.
(f) A general banking moratoriwn shall have been declared by authorities of the United
States, the State of New York or the State of Texas.
9 EXIDBlT B
! '
(g) A lowering of the mtings of "Aa2," "AA'' and "AA." initially assigned to the
Certificates by Moody's, S&P and Fitch, respectively, shall occur prior to the aosing.
10. Expenses. (a) The City shall pay all expenses incident to the issuance of the Certificates,
ireluding but not limited to: (i) the cost of the preparation, printing and distribution of the Preliminary
Official Statement and the Official Statement; (n) the cost of the preparation and printing of the
Certificates; (iii) the fees and expenses of Bond Counsel to the City; (iv) the fees and disbursements
of the City's accountants, advisors, and of any other experts or consultants retained by the City; and
(v) the fees for the bond mtings and any travel or other expenses incurred incident thereto.
(b) The Undervniters shall pay (i) all advertising expenses in connection with the offering of
the Certificates; (ii) the cost of the preparation and printing of all the undervniting documents; and
(m) the fee of McCall, Parkhurst & Horton L.L.P. for such finn's opinion required by Pamgmph
8(eX6) hereof.
11. Notices. Any notice or other communication to be given to the City under this Pwchase
Contract may be given by delivering the same in writing at the address for the City set forth above,
and any notice or other cormmmication to be given to the Undervniters under this Purchase Contr8.ct:
may be given by delivering the same in writing to Siebert Brandford Shank & Co., L.L.C., 440
Louisiana St, Suite 1520, Houston, TX 77002, Attention: Anderson Bynam.
12. Parties in Interest This Purchase Contract is made solely for the benefit of the City and
the Undervniters (including the successors or assigns of any Undervniter) and no other person shall
acquire or have any right under this contract The City's representations, warranties and agreements
contained in this Pwchase Contract that exist as of the Closing, and without regard to any change in
fact or circmnstance occurring subsequent to the aosing, shall remain operative and in full force and
effect, regardless of (i) any investigations made by or on behalf of the Underwriters, and (ii) delivery
of any payment for the Certificates hereunder; and the City's representations and warmnties contained
in Pamgmph 6 of this Pwchase Contract shall remain operative and in full force and effect, regardless
of any tennination of this Purchase Contract
13. Severability. If any provision of this Purchase Contract shall be held or deemed to be
or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule of public policy, or any other reason, such circumstances shall not have the
effect of rendering the provision in question invalid, inoperative or unenforceable in any other case
or circwnstances, or of rendering any other provision inoperative or unenforceable to any extent
whatever.
14. Choice of Law. This Purchase Contract shall be governed by and construed in
accordance with the laws of the State of Texas.
15. Execution in Counterparts. This Purchase Contract may be executed in any nmnber of
counterparts, all of which taken together shall constitute one and the same instrument, and any of the
parties hereto may execute this Pwchase Contract by signing any such counterpart.
10
EXBJBli' B.
I I
16. Section Beadings. Section headings have been inserted in this Contract as a matter of
convenience of reference only, and it is agreed that such section headings are not a part of this
Contract and will not be used in the interpretation of any provisions of this Contract
17. Status of the Underwriters. It is understood and agreed that for all purposes of this
Contract and the transactions contemplated hereby the Underwriters have, in their role as
underwriters, acted solely as independent contractors and have not acted as financial or investment
advisors, fiduciaries or agents to or for the City. whether directly or indirectly through any person.
The City recognizes that the Underwriters expect to profit from the acquisition and potential
distribution of the Certificates.
18. Effective Date. This Purchase Contract shall become effective upon the execution of the
acceptance hereof by the Mayor of the City and shall be valid and enforceable as of the time of such
acceptance.
[Signature page follows.]
II
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Very truly yours,
Siebert Brandford Shank & Co., LLC
J.C. Bradford & Company
Morgan Keegan & Company, Inc.
Estrada Hinojosa & Company, Inc.
Southwest Securities, Inc.
By: Siebert Brandford Shank & Co., L.LC.
Authorized Representative
By:
Title: First Vice President
Accepted:
This 23rd day of September, 1999
City of Lubbock, Texas
By:
Windy Sitton, Mayor
Attest:
Kaythle Darnell, City Secretary
APPROVED AS TO CONTENT:
Betsy Buey, Finance Director
APPROVED AS TO FORM:
Anita E. Burgess, City Attorney
IIHIBIT B
!
EXIHBITA it> PIJJ e.kos -e C~A--1v-ad-
Schedule of Maturities, Interest Rates, Yields and Redemption Provisions
Ci~ of Lubbock, Texas Tax and Waterworks System
Surp us Revenue Certificates of Obligation, Series 1999
Maturity .Principal Interest Rate Yield
(2/lS) Amount (%) (%)
2001 $ 745,000 5.000% 4.150%
2002 785,000 4.250 4.300
2003 815,000 4.400 4.450
2004 855,000 4.500 4.550
2005 895,000 4.600 4.650
2006 9~5,000 4.700 4.750
2007 985,000 4.800 4.900
2008 I 1,030,000 5.000 5.000
2009 1,085,000 5.000 5.050
2010 1,140,000 5.000 5.150 I
2011 1,200,000 5.500 5.280
2012 1,270,000 5.250 5.380
2013 1,335,000 5.375 5.480
2014 1,410,000 5.375 5.580
2015 1,490,000 5.500 5.630
2016 1,575,000 5.500 5.680
2017 1,665,000 5.600 5.730
2018 1,760,000 5.625 5.780
2019 1,860,000 5.250 5.810
2020 1,965,000 5.700 5.830
The Certificates maturing on and after February 15, 2010 are subject to redemption prior to maturity
at the option of the Issuer on February 15, 2009 or any date thereafter at a price of par plus accrued
interest to the date of redemption.
EXBIBIT B
EXIDBITB
OPINION OF TilE CITY AITORNEY
Siebert Brandford Shank & Co., LLC
J.C. Bradford & Company
Morgan Keegan & Company, Inc.
Estrada Hinojosa & Company, Inc.
Southwest Securities, Inc.
% Siebert Brandford Shank & Co., LLC
440 Louisiana St
Suite 1520
Houston. TX 77002
Ladies and Gentlemen:
October 20, 1999
I am the City Attorney for the City of Lubbock, Texas (the "City") and have acted as such in
COimection with the issuance of "City of Lubbock, Texas Tax and Waterworlcs System Smp1us
Revenue Certificates of Obligation, Series 1999," in the aggregate principal amount of $24,800,000
(the "Certificates"), pursuant to the provisions of an ordinance duly adopted by the City Council of
the City on September 23, 1999 (the "Ordinance"). Capitalized tenns not otherwise defined in this
opinion have the meanings assigned in the Pm:chase ContJ:act
In my capacity as City Attorney to the City, I have reviewed such agreements, documents,
certificates, opinions, letters, and other papers as I have deemed necessmy or appropriate in rendering
the opinions set forth below.
In making my review, I have assunied the authenticity of all documents and agreements
submitted to me as originals confonnity to the originals of all documents and agreements submitted
to me as certified or photostatic copies, the authenticity of the originals of such latter documents and
agreements, and the accuracy of the statement contained in such documents.
Based upon the foregoing, and subject to the qualifications and exceptions hereinafter set forth,
I am of the opinion that under the applicable laws of the United States of America and the State of
Texas in force and effect on the date hereof:
1. Based on reasonable inquiry made of the responsible City employees and public officials, the
City is not, to the best of my knowledge, in breach of or in defimlt under any applicable law or
administrative regulation of the State of Texas or the United States, or any applicable judgment
or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement
or other instrument to which the City is party or is otherwise subject and, to the best of my
B-1
E.IBIBI'r B
: i
knowledge after due inquiry, no event has occurred and is continuing that, with the passage of
time or the giving of notice, or both, would constitute such a default by the City under any of
the foregoing; and the execution and delivery of the Purchase Contract and the Certificates, and
the adoption of the Ordinance and compliance with the provisions of each of such agreements
or instruments does not constitute a breach of or default under any applicable law or
administrative regulation of the State of Texas or the United States or any applicable judgment
or decree or, to the best of my knowledge, any trust agreement, loan agreement, bond, note,
resolution, ordinance, agreement or other instrument to which the City is a party or is otherwise
subject; and
2. Except as disclosed in the Official Statement, no litigation is pending. or, to my knowledge,
threatened, in any court in any way (a) challenging the titles of the Mayor or any of the other
members of the City Council to their respective offices, (b) seeking to restrain or enjoin the
issuance or delivery of any of the Certificates, or the collection of taxes levied or to be levied
to pay the principal of and interest on the Certificates, (c) contesting or affecting the validity
or enforceability of the Certificates, the Ordinance or the Purchase Contract (d) contesting the
powers of the City or any authority for the issuance of the Certificates, or the adoption of the
Ordinance, or (e) that would have a material and adverse effect on the financial condition of the
City, including, particularly on the financial condition of the Waterworlc.s System of the City.
This opinion is furnished solely for your benefit and may be relied upon only by the addresses
hereof or anyor1e to whom specific pennission is given in writing by me.
Very truly yours,
B-2
EXHIBIT B
• I
THE STATE OF TEXAS
COUNTY OF LUBBOCK
Ordinance Bo. 10170
SPECIAL ESCROW DEPOSIT AGREEMENT
THIS SPECIAL ESCROW DEPOSIT AGREEMENT, dated as of September 23, 1999, (the
"Agreement") by and between the City of Lubbock, Texas, a municipal corporation duly organized
and existing under the laws of the State of Texas (the "City") and U. S. Trust Company of Texas,
N.A., Dallas, Texas, a banking association organized and existing under the laws of the United
States of America (the "Bank" or "Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Canadian River Municipal Water Authority (the "Authority") and the City
have entered into an "Agreement For The Purchase and Acquisition of Conjunctive Use
Groundwater Supply" dated as of May 15, 1996, as amended by a First Amendment thereto dated
as of July 1, 1999 (the "Groundwater Supply Agreement") to provide for the acquisition of
underground water supply and the construction of well field, collection systems and a pipeline to
deliver the water (the "Project"); all subject to and in accordance with the terms and provisions of
such Groundwater Supply Agreement; and
WHEREAS, under the terms of the Groundwater Supply Agreement, the City has the option
to independently fund all or a portion of its share of the Project Construction Costs for any series
of Revenue Bonds to be issued by the Authority to finance the costs of the Project; and
WHEREAS, should the City exercise its option to independently fund all or a portion of its
share of the Project Construction Costs, the Groundwater Supply Agreement requires the amount
independently funded to be deposited in an escrow account, pursuant to an escrow agreement, in
a state or national bank with trust powers having a combined capital, surplus and undivided profrts
of at least $75,000,000 and such deposit shall be for the exclusive benefit of making payments to
the Authority for payment of the City's Share of Project Construction Costs; and
WHEREAS, the City has notified the Authority it will fund its share of the Project Construction
Costs with proceeds of sale of "City of Lubbock, Texas, Tax and Waterworks System Surplus
Revenue Certificates of Obligation (the "Bonds") authorized for issuance and sold on September 23,
1999;and
WHEREAS. the City has selected the Bank to serve as escrow agent for the receipt,
custody and disbursement of the proceeds of sale of the Bonds to be deposited with the Bank by
the City pursuant to the terms of the Groundwater Supply Agreement to be held in escrow In
accordance with the terms and provisions hereof.
NOW, THEREFORE, In consideration of the premises herein contained and for other good
and valuable consideration, the City and the Bank agree as follows:
111010.1
1 r
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
Section 1.011. Definitions. Unless the context clearly indicates otherwise, the following
terms shall have the meanings assigned below when used in this Agreement:
"Authorized Representative" shall mean with respect to the City, the Mayor, the City
Manager, Assistant City Manager, Director of Finance, City Attorney, or such other official or
employee of the City as may be designated by the Mayor of the City through official action filed with
the Bank.
"Authorized Investments" shall mean those securities or obligations authorized for
investment of public funds pursuant to the Public Funds Investment Act and the City's policies and
guidelines pertaining to the investment of proceeds of sale derived from the issuance and sale of
bonds or similar obligations.
"Escrow Fund" shall mean the special fund or account established with the Bank pursuant
to the provisions of this Escrow Agreement for the deposit and safekeeping of funds to be paid to
the Authority to acquire and construct the "Project" under the Groundwater Supply Agreement.
"Escrow Amount" shall mean that amount of funds deposited in the Escrow Fund to fund all
or a portion of the City's share of the Project Construction Costs pursuant to Section 4.3 of the
Groundwater Supply Agreement.
Section 1.012. Other Definitions. The terms "Groundwater Supply Agreement". "Authority",
"City", "Agreement" shall have the meanings assigned in the "RECITALS" of this Agreement.
Furthermore, capitalized terms not otherwise defined herein shall have the meanings assigned
thereto in the Groundwater Supply Agreement.
Section 1.013. lntemretations. The titles and headings of the articles and sections of this
Agreement have been Inserted for convenience and reference only and are not to be considered
a part thereof and shall not in any way modify or restrict the terms hereof. Words of the singular
number shall be considered to include the plural, words of the plural number shall be construed to
include the singular and words of the masculine, feminine and neuter genders shall be construed
to include the other genders. This Agreement and all of the terms and provisions hereof shall be
liberally construed to effectuate the purposes set forth herein and to achieve the Intended purpose
of providing for (i) the receipt and safekeeping of the Escrow Amount and (II) the disbursement of
such Escrow Amount in accordance with the terms of this Agreement.
ARTICLE II
ESCROW FUND
Section 1.021. Escrow Fund Creation. A special segregated and irrevocable trust fund to
be known· as the "Special Lubbock Conjunctive Use Groundwater Supply Project Escrow Fund"
(hereinafter called the "Escrow Fund") shall be and Is hereby established and shall be maintained
by the Bank for the receipt, deposit, administration and safekeeping of the Escrow Amount pending
TtiOl.O.l -2-
EXHIBIT c
I !
its use, disbursement and withdrawal; all in accordance with and in strict conformity with the
provisions of this Agreement.
Section 1.022. Escrow Fund Deposit. On or prior to the fifth (5th) work day preceding the
"Revenue Bond Funding Date•, the City agrees and covenants to deposit to the credit of the Escrow
Fund all of the Escrow Amount and the Escrow Agent agrees to receive and deposit such Escrow
Amount to the credit of the Escrow Fund and hold the same for application and disbursement for
the purposes and In the manner prescribed in this Agreement.
Section 1.023. Escrow Fund Characterization. (a) The Escrow Agent shall hold such
Escrow Amount, together with Income, profits and interest realized from investing such funds, at all
times as a special and separate trust fund wholly segregated from other moneys and securities on
deposit with the Escrow Agent; shall never commingle the Escrow Amount held in the Escrow Fund
with other moneys of securities of the Escrow Agent; and shall hold and dispose of the assets
therein only as set forth herein. Nothing herein contained shall be construed as requiring the
Escrow Agent to keep the identical moneys, or any part thereof, in said Escrow Fund, if it is
impractical, but moneys of an equal amount, except to the extent such are represented by the
Authorized Investments, shall always be maintained on deposit in the Escrow Fund by the Escrow
Agent, as trustee; and a special account evidencing such facts shall at all times be maintained on
the books of the Escrow Agent.
(b) Legal ownership of or title to the Escrow Amount or the Authorized Investments
deposited or held for the account of the Escrow Fund shall be in the City with equitable or beneficial
ownership or title vested in Authority, and such legal and beneficial owners as their respective
interests may be determined shall be entitled to a preferred claim and shall have a first lien upon
such funds and Authorized Investments in the Escrow Fund until paid out, used and applied in
accordance with this Agreement. The funds and Authorized Investments received by the Escrow
Agent under this Agreement shall not be considered as a banking deposit and the Escrow Agent
and the City shall have no right or title with respect thereto, except as otherwise provided herein.
Section 1.024. Escrow Fund Securitv. The Escrow Agent shall continuously secure the
monies in the Escrow Fund not invested in Authorized Investments by a pledge of direct obligations
of the United States of America, in the par or face amount at least equal to the amount of such
uninvested monies and to the extent such money is not Insured by the Federal Deposit Insurance
Corporation. Such securities shall be deposited with the Escrow Agent or, with the approval of the-
City, may be held in safekeeping and custody by a third party banking institution or trust company.
Section 1.025. Escrow Fund Withdrawals. The Escrow Amount, together with the income,
earnings and receipts thereon from Authorized Investments, held in the Escrow Fund shall be first
applied and disbursed for making payments to the Authority upon receipt of (a) a Requisition for
Project Construction Costs and (b) a written requisition from an Authorized Representative in
substantially the form and substance of Exhibit A attached hereto, duly executed and completed in
all respects. Any excess amounts in Escrow Fund resulting from Authorized Investments may be
remitted to the City upon the Escrow Agent receiving (x) a written request from the City and (y) a
written confirmation from the Authority that the amount to be remitted to the City will not reduce the
total amount on deposit to the credit of the Escrow Fund to an amount less than the Escrow Amount
less all prior payments to the Authority. The Escrow Agent shall retain on file copies of such written
791010~1 -3-
BIHIBIT C
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requisitions, requests and confirmations for which a disbursement or withdrawal of funds is made.
The Escrow Amount, together with the income, earnings and interest received from Authorized
Investments, shall not be subject to checks, drafts or warrants drawn by the City.
All disbursements from the Escrow Fund to the Authority or to the City shall be by wire
transfer or other similar means so as to provide the recipient with Immediately available fund on the
day of the transfer and in accordance with written Instructions to the Escrow Agent from the
Authority or the City, as the case may be.
Section 1.026. Escrow Fund Authorized Investments. All money held by the Escrow Agent
pursuant to this Agreement shall be deposited or invested only in Authorized Investments and only
at the direction of the Authorized Representative of the City. The City intends that such funds shall
be invested in Authorized Investments so as to obtain the highest yield practicable while maintaining
the safety of the corpus of such funds and the date .when such funds will be required for uses and
purposes specified in this Agreement. The City shall direct any investments made by the Escrow
Agent by letter from an Authorized Representative.
All interest and other income received from the Investment of moneys held in the Escrow
Fund shall be retained in the Escrow Fund until disbursed or withdrawn In accordance with Section
2.05 hereof.
The Escrow Agent shall not be liable for any loss resulting from the making or disposition
of any investment pursuant to this section, and any such losses shall be charged to the Escrow
Fund. To the extent the Escrow Fund at any time contains less than the required Escrow Amount
balance (i.e., the cash and market value of the Authorized Investments on deposit to the credit of
the escrow Fund total less than the Escrow Amount minus all prior payments to the Authority), the
City agrees to immediately deposit to the credit of the Escrow Fund the amount of the deficiency
in cash or additional Authorized Investments.
ARTICLE Ill
RECORDS AND REPORTS
Section 1.031. Records. The Escrow Agent will keep books of records and account in
which complete and correct entries shall be made of all transactions relating to the receipts,
disbursements, allocations and application of the money and Authorized Investments deposited to
the Escrow Fund and all proceeds thereof, and all such books shall be available for inspection at
reasonable hours and under reasonable conditions by Authorized Representatives of the City and
designated officials or representatives of the Authority.
Section 1.032. Reports. While this Agreement remains in effect, the Escrow Agent annually
shall prepare and sepd to the City, and at the request of the Authority, a written report summarizing
all transactions relating to the Escrow Fund during the preceding year, together with a detailed
statement of all Authorized Investments and the cash balance on deposit In the Escrow Fund as of
the end of such period.
'791010.1
EXHIBIT C
I l
ARTICLE IV
CONCERNING THE ESCROW AGENT
Section 1.041. Representations. The Escrow Agent hereby represents that it has all
necessary power and authority to enter into this Agreement and undertake the obligations and
responsibilities Imposed upon it herein, and that it will carry out all of its obligations hereunder.
Section 1.042. Limitation on Liability. The Escrow Agent makes no representations at to
the value, conditions or sufficiency of the Escrow Fund, or any part thereof, or as to the title of the
City thereto, or as to the security afforded thereby or hereby, and the Escrow Agent shall not incur
liability or responsibility in respect to any of such matters.
It is the intention of the parties hereto that the Escrow Agent shall never be required to use
or advance its own funds or otherwise Incur personal financial liability in the performance of any of
Its duties of the exercise of any of Its rights and powers hereunder.
The Escrow Agent shall not be liable for any action taken or neglected to be taken by it in
good faith In any exercise of reasonable care and believed by it to be within the discretion or power
conferred upon it by this Agreement, nor shall the Escrow Agent be responsible for the
consequences of any error of judgment; and the Escrow Agent shall not be answerable except for
its own action, neglect or default, nor for any loss unless the same shall have been through its
negligence or want of good faith.
Unless it Is specifically otherwise provided herein, the Escrow Agent has no duty to
determine or inquire into the happening or occurrence of any event or contingency or the
performance of failure of performance of the City with respect to arrangements or contracts with
others, with the Escrow Agenfs sole duty hereunder being to safeguard the Escrow Fund, to
dispose of and deliver the same in apcordance with this Agreement. If, however, the Escrow Agent
is called upon by the terms of this Agreement to determine the occurrence of any event or
contingency, the Escrow Agent shall be obligated; in making such determination, only to exercise
reasonable care and diligence, and 111 event of error in making such determination the Escrow Agent
shall be liable only for its own miscOnduct or Its negligence. In determining the occurrence of any
such event or contingency the Escrow Agent may request from the City or any other person such
reasonable additional evidence as lthe Escrow Agent in its discretion may deem necessary to
determine any fact relating to the occurrence of such event or contingency, and In this connection
may make inquiries of, and consult with, among others, the City at any time.
Section 1.043. Rights of Interpleader. In the event of any disagreement or controversy
hereunder or if conflicting demands or notices are made upon the Escrow Agent growing out of or
relating to this Agreement or In the event that the Escrow Agent in good faith is In doubt as to what
action should be taken hereunder, the City expressly agrees and consents that the Escrow Agent
shall have the absolute right at its election to:
lH010.1
(a) Withhold and stop all further proceedings In, and performance of, this
Agreement with respect to the Issue in question and of all instructions received
hereunder in regard to such Issue; and
-5-
IXIIIBIT c
(b) File a suit in interpleader and obtain an order from a court of
appropriate jurisdiction requiring all persons involved to interplead and litigate in
such court their several claims and rights among themselves.
Section 1.044. Successor Escrow Agent. If at any time the Escrow Agent or its legal
successor or successors should be unable, through operation of law or otherwise, to act as escrow
agent hereunder, or if its property or affairs shall be taken under the control of any state or federal
court or administrative body because of insolvency or bankruptcy or for any other reason, a vacancy
shall forthwith exist in the office of the Escrow Agent hereunder. In such event the City, by
appropriate action, promptly shall appoint an Escrow Agent to fill such vacancy. If, in a proper case,
no appointment of a successor escrow agent shall be made pursuant to the foregoing provisions
of this section within three months after a vacancy shall have occurred, the Authority may apply to
any court of competent jurisdiction to appoint a successor escrow agent. Such court may
thereupon, after such notice, if any, as it may deem proper, prescribe and appoint a successor
escrow agent.
Any successor escrow agent shall be a state or national bank with trust powers having at
the time of appointment a combined k:apital, surplus and undivided profits of at least $75,000,000
and subject to the supervision or e~mination by Federal and State authority.
Any successor escrow agent shall execute, acknowledge and deliver to the City and the
Escrow Agent an Instrument accepting such appointment hereunder, and the Escrow Agent shall
execute and deliver an Instrument transferring to such successor escrow agent, subject to the terms
of this Agreement, all the rights, powers and trusts of the Escrow Agent hereunder. Upon the
request of any such successor escrow agent, the City shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor escrow agent all
such rights, powers and duties.
ARTICLEV
MISCELLANEOUS
Section 1.051. Notice. Any notice, authorization, request, or demand required or permitted
to be given hereunder shall be In writing and shall be deemed to have been duly given when mailed
by registered or certified mail, postage prepaid addressed to the City or the Escrow Agent as
follows:
CITY:
City of Lubbock
162513th Street (Zip-79457)
P. 0. Box 2000 (Zip-79457-2000)
Lubbock, Texas
Attention: City Manager
ESCROW AGENT:
U. S. Trust Company of Texas, N.A.
2001 Ross Avenue, Suite 2700
Dallas, Texas 75201
Attention: Corporate Trust Department
The United States Post Office registered or certified mail receipt showing delivery of the aforesaid
shall be conclusive evidence of the date and fact of delivery. Any party hereto may change the
EXHIBIT 0
! i
address to which notices are to be delivered by giving to the other parties not less than ten (10)
days prior notice thereof.
Section 1.052. Termination of Responsibilities. Upon the taking of all the actions as
described herein by the Escrow Agent, the Escrow Agent shall have no further obligation or
responsibilities hereunder to the City, the Authority or to any other person or persons in connection
with this Agreement.
Section 1.053. Binding Agreement. This Agreement shall be binding upon the City and the
Escrow Agent and their respective successors and legal representatives, and shall inure solely to
the benefit of the Contracting Parties to the Contracts, the City, the Escrow Agent and their
respective successors, assigns and legal representatives.
Section 1.054. Severability. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, Illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this Agreement, but this
Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been
contained herein.
Section 1.055. Texas Law Governs. This Agreement shall be governed exdusively by the
provisions hereof and by the applicable laws of the State of Texas. ·
Section 1.056. Jjme of the Essence. nme shall be of the essence in the performance of
obligations from time to time imposed upon the Escrow Agent by this Agreement.
Section 1.057. Amendments. This Agreement shall not be amended except to cure any
ambiguity or formal defect or omission in this Agreement. No amendment shall be effective unless
the same shall be In writing and signed by the parties thereto and approved by the Authority.
Section 1.058. Counterparts. This Agreement may be executed in several counterparts,
all or any of which shall be regarded for all purposes as one original and shall constitute and be but
one and the same instrument.
158010"'1 -7-
IJBIBlT C
!·t .
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be
executed by their duly authorized officers and their corporate seals to be hereunto affixed and
attested as of the date first above written.
ATTEST:
City Secretary
(SEAL)
ATTEST:
Title:----------
(SEAL)
711010.1 -8-
CITY OF LUBBOCK
By ________________________ _
Mayor
APPROVED AS TO FORM:
City Attorney
U. S. TRUST COMPANY OF TEXAS, N.A.,
Dallas, Texas
By: ________________________ _
Title:--------------
EXBIBlT c
i :
EXHIBIT"A"
Payment Request Form No. __ _
To: U. S. Trust Company of Texas, N.A.
Escrow Agent
As Escrow Agent, you are hereby requested to pay from the "Special Lubbock Conjunctive
Use Groundwater Supply Project Escrow Fund" established by the Special Escrow Deposit
Agreement, dated as of September 23, 1999 between the City of Lubbock, Texas (the "City") and
the Escrow Agent (the "Escrow Agent") to the Canadian River Municipal Water Authority (the
"Authority") the sum set forth below such designation. The City, acting by and through its
Authorized Representative, hereby certifies that such amount represents [full] [partial] payment due
the Authority for payment of the City's Share of Project Construction Costs pursuant to the attached
Requisition for Project Costs received from the Authority.
The City represents and warrants that all conditions precedent for payment of the amount
due the Authority have been satisfied and payment of the amount shown below has been approved
by the City.
Payee:
Address:
Amount:
CITY OF LUBBOCK, TEXAS
Authorized Representative
118010.1 EXHIBIT C
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Ordinance No. 10170
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
Exhibit D
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 B. but for the most recently concluded fiscal year.
2. The Information contained in Tables 1 through 6 and SA through 18 of the
Official Statement.
Ac~ounting Principles
'
The accounting principles referred to in such Section are the generally accepted
accounting principles as applicable to governmental units as prescribed by The Government
Accounting Standards Board.
780356.1
. I
524,800,000
CITY OF LUBBOCK, TEXAS
Tax and Waterworks System Surplus Revenue
Certificates of Obligation,
Series 1999
PURCHASE CONTRACI
September 23, 1999
The Honorable Mayor and Members of the City Col.mci1
City of Lubbock
1625 13th St.
Lubbock, Texas 79401
Dear Mayor and Members of the City Col.mcil:
Siebert Bmndford Shank & Co., L.L.C. (the "Authorized Representative"), J.C. Bradford &
Company, Morgan Keegan & Company. Inc., Estrada Hinojosa & Company, Inc. and Southwest
Secmities, Inc. (collectively, the "Underwriters"), offer to enter into this Purchase Contract with the
City of Lubbock. Texas (the "City"). This offer is made subject to the City's acceptance of this
Purchase Contract on or before 9:00p.m. Central Time on September 23, 1999.
1. Purchase and Sale of tbe Certificates. Upon the terms and conditions and upon the
basis of the representations set forth herein, the Underwriters jointly and severally hereby agree to
purchase from the City, and the City hereby agrees to sell and deliver to the Underwriters an
aggregate of $24,800,000 principal amol.mt of City of Lubbock. Texas Tax and Waterworks System
Sutplus Revenue Certificates of Obligation. Series 1999 (the "Certificates"). The Certificates shall
have the maturities, interest rates and be subject to redemption in accordance with the provisions of
Exhibit A hereto and shall be issued and secured Wlder the provisions of the Ordinance (as defmed
below). The purchase price for the Certificates shaD be $24,456,280.87 (representing the principal
amoWlt of the Certificates, less an Underwriters' discount of $152,520, less an original issue discount
of$316,691.75, and plus accrued interest in the amol.Ult of$125,492.62).
Siebert Brandford Shank & Co., L.L.C. represents that it has been duly authorized to execute
this Purchase Contract and has been duly authorized to act hereWlder as the Authorized
Representative. All actions that may be taken by the Underwriters may be taken by the Authorized
Representative alone. "
! ;
2. Ordinance. The Certificates shall be as described in and shall be issued and secured
wder the provisions of the Ordinance authorizing the issuance and sale of the Certificates adopted
by the City on September 23, 1999 (the "Ordinance"). The Certificates shall be secured and payable
as provided in the Ordinance.
3. Public Offering. It shall be a condition of the obligations of the City to sell and deliver
the Certificates to the Underwriters, and of the obligations of the Underwriters to purchase and
accept delivery of the Certificates, that the entire principal amowt of the Certificates authorized by
the Ordinance shall be sold and delivered by the City and accepted and paid for by the Underwriters
at the Oosing. The Underwriters agree to make a bona fide public offering of all of the Certificates,
at not in excess of the initial public offering prices, as set forth in the Official Statement, plus interest
accrued on the Certificates from the date of the Certificates.
4. Security Deposit. Delivered to the City herewith is a corporate check of the Authorized
Representative payable to the order of the City in the amount of $260,000. The City agrees to hold
such check uncashed until the Oosing to ensure the perfonnance by the Underwriters of their
obligation to purchase, accept delivery of and pay for the Certificates at the Dosing. ConcUITelltly
with the payment by the Underwriters of the purchase price of the Certificates, the City shall return
such check to the Authorized Representative as provided in Pamgraphs 7 and 8 hereof. Should the
City fail to deliver the Certificates at the Oosing, or should the City be unable to satisfy the
conditions of the obligations of the Underwriters to purchase, accept delivery of and pay for the
Certificates, as set forth in this Purchase Contract (unless waived by the Authorized Representative),
or should such obligations of the Underwriters be tenninated for any reason pennitted by this
Purchase Contract, such check shall immediately be returned to the Authorized Representative. In
the event the Underwriters fail (other than for a reason pennitted herewder) to purchase, accept
delivery of and pay for the Certificates at the Closing as herein provided, such check shall be retained
by the City as and for full liquidated damages for such failure of the Underwriters and for any defiwlts
hereunder on the part of the Underwriters. The Authorized Representative hereby agrees not to stop
or cause payment on said check to be stopped unless the City has breached any of the tenns of this
Purchase Contract.
S. Official Statement. The Official Statement, including the cover pages and Appendices
thereto, of the City, dated September 23, 1999, with respect to the Certificates, as further amended
only in the manner herein provided, is hereinafter called the "Official Statement" The City hereby
authorizes the Ordinance and the Official Statement and the infonnation therein contained to be used
by the Underwriters in connection with the public offering and sale of the Certificates. The City
confnms its consent to the use by the Underwriters prior to the date hereof of the Preliminary Official
Statement, relative to the Certificates, dated September 1, 1999 (the "Preliminary Official
Statement"), in connection with the preliminary public offering and sale of the Certificates, and it is
"deemed final'' as of its date, within the meaning, and for the purposes, of Rule l5c2-12 promulgated
under authority granted by the federal Securities and Exchange Act of 1934 (the ''Rule''). The City
agrees to cooperate with the Underwriters to provide a supply of final Official Statements within
seven business days of the date hereof in sufficient quantities to comply with the Under.vriters'
obligations under the Rule and the applicable rules of the Municipal Securities Rulemaking Board.
2
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The Underwriters will use their best efforts to assist the City in the preparation of the final Official
Statement in order to ensure compliance with the aforementioned rules.
If at any time after the date of this Purchase Contract but before the fll'St to occur of (i) the date
upon which the Underwriters notify the City that the period of the initial public offering of the
Certificates has expired or (ii) the date that is 90 days after the date hereof, any event shall occur that
might or would cause the Official Statement to contain any untrue statement of a material fact or to
emit to state a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, the City shall notify
the Authorized Representative, and if, in the opinion of the Authorized Representative, such event
requires the preparation and publication of a supplement or amendment to the Official Statement, the
City will at its expense supplement or amend the Official Statement in the form and in a manner
approved by the Authorized Representative and furnish to the Underwriters a reasonable number of
copies requested by the Authorized Representative in order to enable the Underwriters to comply
with the Rule.
To the best knowledge and belief of the City, the Official Statement contains infonnation.
including financial infonnation or operating data, as required by the Rule. The Issuer has not fitiled
to comply with any undertaking specified in paragraph (bXS)(i) of the Rule within the last five years.
6. Representations, Warranties and Agreements of the City. On the date hereof, the
City represents, warrants and agrees as follows:
(a) The City is a home rule mtmicipality and a political subdivision of the State of Texas
and a body politic and corporate, and has full legal right, power and authority to enter into this
Purchase Contract, to adopt the Ordinance, to sell the Certificates, and to issue and deliver the
Certificates to the Underwriters as provided herein and to carry out and consmmnate all other
transactions contemplated by the Ordinance and this Purchase Contract;
(b) By official action of the City prior to or concurrently with the acceptance hereof,
the City has duly adopted the Ordinance, has duly authorized and approved the execution and
delivery of, and the performance by the City of the obligations contained in the Certiftcates and
this Purchase Contract and has duly authorized and approved the performance by the City of
its obligations contained in the Ordinance and in this Puicllase Conttact;
(c) The City is not in breach of or default under any applicable law or administrative
regulation of the State of Texas or the United States (including regulations of its agencies) or
any applicable judgment or decree or any loan agreement, note, order, agreement or other
instnnnent. except as may be disclosed in the Official Statement, to which the City is a party
or to the knowledge of the City it is otherwise subject, that would have a material and adverse
effect upon the business or financial condition of the City; and the execution and delivery of this
Purchase Contract by the City and the execution and delivery of the Certificates and the
adoption of the Ordinance by the City and compliance with the provisions of each thereof will
not violate or constitute a breach of or default under any existing law, administrative regulation.
3
I !
judgment, decree or any agreement or other instrument to which the City is a party or, to the
knowledge of the City, is otherwise subject;
(d) An approva1s, consents and orders of any governmental authority or agency having
jurisdiction of any matter that would constitute a condition precedent to the perfonnance by the
City of its obligations· to sell and deliver the Certificates hereunder will have been obtained prior
to the aosing;
(e) At the time of the City's acceptance hereof and at the time of the Qosing, the
Official Statement does not and will not contain any untrue statement of a material fuct or omit
to state a material fuct required to be stated therein or necessazy to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
(f) Between the date of this Purchase Contract and the Qosing, the City will not,
without the prior 'Mitten consent of the Underwriters, issue any additional bonds, notes or other
obligations for borrowed money payable in whole or in part from ad valorem taxes, and the City
wiD not incur any material liabilities, direct or contingent, nor will there be any adverse change
of a material nature in the financial pcsition of the City;
(g) Except as described in the Official Statement, no litigation is pending or, to the
knowledge of the City, threatened in any court affecting the corporate existence of the City, the
title of its officers to their respective offices, or seeking to restrain or enjoin the issuance or
delivery of the Certificates, the levy, collection or application of the ad valorem taxes pledged
or to be pledged to pay the principal of and interest on the Certificates, or in any way contesting
or affecting the issuance, execution, delivery, payment, security or validity of the Certificates,
or in any way contesting or affecting the validity or enforceability of the Ordinance or this
Purchase Contract, or contesting the powers of the City, or any authority for the Certificates,
the Ordinance or this Purchase Contract or contesting in any way the completeness, accuracy
or filimess of the Preliminary Official Statement or the Official Statement;
(h) The City will cooperate with the Under'Miters in arranging for the qualification of
the Certificates for sale and the detennination of their eligibility for investment under the laws
of such jurisdictions as the Authorized Representative designates, and will use its best efforts
to continue such qualifications in effect so long as required for distribution of the Certificates;
provided, however, that the City will not be required to execute a consent to service of process
or to qualify to do business in connection with any such qualification in any jurisdiction;
(i) The descriptions of the Certificates and the Ordinance contained in the Official
Statement accurately summarize certain provisions of such instruments, and the Certificates,
when validly executed, authenticated and delivered in accordance with the Ordinance and sold
to the Underwriters as provided herein, will be validly issued and outstanding obligations of the
City entitled to the benefits of, and subject to the limitations contained in, the Ordinance;
0) If prior to the Qosing an event occurs affecting the City that is materially adverse
for the pmpose for which the Official Statement is to be used and is not disclosed in the Official
4
Statement, the City shall notify the Authorized Representative, and if in the opinion of the City
and the Authorized Representative such event requires a supplement or arneruhnent to the
0 fficial Statement, the City wUI supplement or amend the Official Statement in a form and in
a manner approved by the Authorized Representative;
(k) The financial statements contamed in the Official Statement present fairly the
financial position of the City as of the date and for the period covered thereby and are stated
on a basis substantially consistent with that of the prior yeats audited financial statements;
(/) Any certificate signed by any official of the City and delivered to the Underwriters
shall be deemed a representation and warranty by the City to the Underwriters as to the truth
of the statements therein contained;
(m) The City has not been notified of any listing or proposed listing by the Internal
Revenue Service to the effect that it is a bond issuer whose arbitrage certifications may not be
relied upon; and
(n) The City will not knowingly take or omit to take any action, which action or
omission will in any way cause the proceeds from the sale of the Certificates to be applied in
a manner other than as provided in the Ordinance or that would cause the interest of the
Certificates to be includable in gross income of the holders thereof for federal income tax
purposes.
7. Closing. At 10:00 AM., Central Time, on October 20, 1999 (the "Closing"), the City will
deliver the initial Certificates (as defined in the Ordinance) to the Underwriters and the City shall take
appropriate steps to provide DTC with one definite securities certificate for each year of maturity of
the Certificates, and to provide the Underwriters with the other documents hereinafter mentioned
On or prior to the date of Closing, the Underwriters shall make arrangements with The Depository
Trust Company ("DTC") for the Certificates to be immobilized and thereafter traded as book-entry
only securities and on the date of Closing the Underwriters will accept such delivery and pay the
purchase price of the Certificates as set forth in Paragraph I hereof in immediately available fimds.
Concurrently with such payment by the Underwriters, the City shall return to the Authorized
Representative the check referred to in paragraph 4 hereof. Delivery and payment as aforesaid shall
be made at the office of Fulbright & Jaworski L.L.P., 2200 Ross Avenue, Suite 2800, Dallas, Texas
75201, or such other place as shall have been mutually agreed upon by the City and the Authorized
Representative.
8. Conditions. The Underwriters have entered into this Purchase Contract in reliance upon
the representations and warranties of the City contained herein and to be contained in the documents
and instnnnents to be delivered at the Closing, and upon the performance by the City of its
obligations hereunder, both as of the date hereof and as of the date of Closing. Accordingly, the
Underwriters' obligations under this Purchase Contract to purchase and pay for the Certificates shall
be subject to the performance by the City of its obligations to be performed hereunder and under such
documents and instruments at or prior to the Closing, and shall also be subject to the following
conditions:
s
I '
(a) The representations and warranties of the City contained herein shall be true,
complete and correct in all material respects on the date hereof and on and as of the date of
Closing, as if made on the date of Closing;
(b) At the time of the Closing, (i) the Ordinance shall be in full force and effect, and the
Ordinance shall not have been amended, modified or supplemented and the Official Statement
shall not have been amended, modified or supplemented, except as may have been !lgreed to by
the Authorized Representative; and (ii) the net proceeds of the sale of the Certificates shall be
deposited and applied as described in the Official Statement and in the Ordinance;
{c) At the time of the Closing, all official action of the City related to the Ordinance
shall be in full force and effect and shall not have been amended, modified or supplemented;
{d) The City shall not have failed to pay principal or interest when due. on any of its
outstanding obligations for borrowed money;
(e) At or prior to the Closing, the Underwriters shall have received each of the
following docmnents:
{I) The Official Statement of the City executed on behalf of the City by the Mayor
and City Secretaty;
{2) The Ordinance certified by the City Secretary under the seal of the City as
having been duly adopted by the City and as being in effect, with such changes or
amendments as may have been agreed to by the Underwriters, the Ordinance shall contain
the agreement of the City, in form satisfactory to the Underwriters, that is described
under the caption 11Continuing Disclosure of Infonnation" in the Preliminaiy Official
Statement;
{3) The opinion, dated the date of Closing, of Fulbright & Jaworski L.L.P. ("Bond
Counsel") in substantially the form and substance of Appendix C to the Official
Statement;
{4) An opinion or certificate, dated on or prior to the date of Closing, of the
Attorney General of Texas, approving the Certificates as required by law and the
registration certificate of the Comptroller of Public Accounts of the State ofTexas;
{5) The supplemental opinion or opinions, dated the date of Closing, of Bond
Counsel, addressed to the City and the Underwriters, which provides that the
Underwriters may rely upon the opinion of Bond Colttlsel delivered in accordance with
the provisions of paragraph 8(f)(3) hereof, and opining to the effect that {a) the Purchase
Contract has been duly authorized, executed and delivered by the City and (assuming due
authorization by the Underwriters) constitutes a binding and enforceable agreement of the
City in accordance with its tenns; (b) in its capacity as Bond Colttlsel, such finn has
reviewed the information in the Official Statement under the captions or subcaptions
6
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subcaptions "The Certificates" (exclusive of the infonnation under the subcaptions "Book-
Entty Only System" and "Bondholders• Remedies''), "Tax Matters," ''Legal Investments
and Eligibility to Secme Public Funds in Texas," "Legal Opinions and No-Litigation
Certificate" (exclusive of the last sentence thereof) and "Continuing Disclosure of
Infonnation" (exclusive of the information under the subcaption "Compliance with Prior
Undertakings'') and such firm is of the opinion that such descriptions present a fair and
accurate summary of the provisions of the laws and instruments therein descnbed and,
with respect to the Certificates, such infonnation confonns to the Ordinance; and (c) the
Certificates are exempt from registration pursuant to the Securities Act of 1933, as
amended, and the Ordinance is exempt from qualification as an indenture pursuant to the
Trust Indenture Act of 1939, as amended;
(6) An opinion of McCall, Parkhurst & Horton L.L.P., Undelwriters' Counsel
addressed to the Underwriters, and dated the date of Closing to the effect that: (i) the
Certificates are exempt secmities within the meaning of Section 3(a)(2) of the Secmities
Act of 1933, as amended, and it is not necessary in connection with the sale of the
Certificates to the public to register the Certificates under the Securities Act of 1933, as
amended, or to qualify the Ordinance under the Trust Indenture Act of 1939, as amended;
and (ii) in their participation in the preparation of the Official Statement, nothing has
come to the attention of said finn that would lead them to believe that the Official
Statement (excluding the financial and statistical data and forecasts included therein, all
as to which no view need be expressed) contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements therein, in light of the
circwnstances under which they were made, not misleading;
(7) A certificate, dated the date of Closing, signed by the City Manager and
Director of Financial Services of the City, to the effect that (i) the representations and
warranties of the City contained herein are true and correct in all material respects on and
as of the date of Closing as if made on the date of Closing; (ii) except to the extent
disclosed in the Official Statement, no litigation is pending or, to the knowledge of such
persons, threatened in any court to restrain or enjoin the issuance or delivery of the
Certificates, or the levy, collection or application of the ad valorem taxes pledged or to
be pledged to pay the principal of and interest on the Certificates, or the pledge thereof,
or in any way contesting or affecting the validity of the Certificates, the Ordinance or this
Purchase Contract, or contesting the powers of the City or the authorization of the
Certificates or the Ordinance, or contesting in any way the accuracy, completeness or
fairness of the Official Statement (but in lieu of or in conjunction with such certificate, the
Underwriters may, in their sole discretion, accept certificates or opinions of the City
Attmrey that, in the opinion thereof, the issues raised in any such pending or threatened
litigation are without substance or that the contentions of all plaintiffs therein are without
merit); (ill) to the best of their knowledge, no event affecting the City has occurred since
the date of the Official Statement that should be disclosed in the Official Statement for the
purpose for which it is to be used or that it is necessary to disclose therein in order to
make the statements and infonnation therein not misleading in any respect; and (iv) that
there has not been any material and adverse change in the affairs or financial condition of
7
the City since September 30, 1998, the latest date as to which audited fmancial
infonnation is available;
(8) An opinion of the City Attorney addressed to the Underwriters and dated the
date of Qosing substantially in the fonn and substance of Exhibit B hereto;
(9) A certificate, dated the date of the Closing, of an appropriate officer of the
City to the effect that, on the basis of the facts, estimates and circumstances in effect on
the date of delivery of the Certificates, it is not expected that the proceeds of the
Certificates will be used in a manner that would cause the Certificates to be arbitrage
bonds within the meaning of Section 148 of the Internal Revenue Code of 1986, as
amended;
(10) Evidence of the rating on the Certificates, which shall be "Aa2" or better by
Moody's Investors Service, Inc. ("Moody's"), "AA" or better by Standard and Poor's
Corporation, a division of the McGraw-Hill Companies, Inc. (''S&P"), and "AA" or better
by Fitch IBCA, Inc., shall be delivered in a fonn acceptable to the Underwriters; and
( 11) Such additional legal opinions, certificates, instnnnents and other documents
as Bond CoWlSel or the Underwriters may reasonably request to evidence the truth,
accuracy and completeness, as of the date hereof and as of the date of Closing, of the
City's representations and warranties contained herein and of the statements and
infonnation contained in the Official Statement and the due performance and satisfaction
by the City at or prior to the date of Qosing of all agreements then to be perfonned and
all conditions then to be satisfied by the City.
All of the opinions, letters, certificates, instruments and other documents mentioned above or
elsewhere in this Purchase Contract shall be deemed to be in compliance with the provisions hereof
if, but only if, they are satisfactory to the Underwriters.
If the City shall be unable to satisfy the conditions to the obligations of the Underwriters to
pmchase, to accept delivery of and to pay for the Certificates as set forth in this Purchase Contract,
or if the obligations of the Underwriters to purchase, to accept delivery of and to pay for the
Certificates shall be terminated for any reason permitted by this Pmchase Contract, this Purchase
Contract shall terminate, the security deposit referred to in Pamgraph 4 of this Purchase Contract
shall be returned to the Authorized Representative and neither the Underwriters nor the City shall be
Wlder further obligation hereWlder, except that the respective obligations of the City and the
Underwriters set forth in Paragraphs 10 and 12 hereof shall continue in full force and effect
9. Termination. The Underwriters may tennimte their obligation to purchase at any time
before the Qosing if any of the following should occur:
(a) (i) Legislation shall have been enacted by the Congress of the United States, or
recommended to the Congress for passage by the President of the United States or favorably
reported for passage to either House of the Congress by any Committee of such House; or (ii) a
8
I
decision shall have been rendered by a cowt established Wider Article ill of the Constitution
of the United States or by the United States Tax Court; or (iii) an order, ruling or regulation
shall have been issued or proposed by or on behalf of the Treasury Department of the United
States or the Internal Revenue Service or any other agency of the United States; or (iv) a
release or official statement shall have been issued by the President of the United States or by
the Treasury Department of the United States or by the Internal Revenue Service, the effect of
which, in any such case described in clause (i), (ii), (iii), or (iv), would be to impose, directly
or indirectly, federal income taxation upon interest received on obligations of the general
character of the Certificates or upon income of the general character to be derived by the City,
other than any imposition of federal income taxes upon interest received on obligations of the
general character as the Certificates on the date hereof and other than as disclosed in the
Official Statement, in such a manner as in the judgment of the Authorized Representative would
materially impair the marketability or materially reduce the market price of obligations of the
general character of the Certificates.
(b) Any action shall have been taken by the Securities and Exchange Commission or by
a court that would require registration of any security Wider the Securities Act of 1933, as
amended, or qualification of any indenture Wider the Trust Indenture Act of 1939, as amended,
in connection with the public ioffering of the Certificates, or any action shall have been taken
by any cowt or by any goverlunental authority suspending the use of the Preliminary Official
Statement or the Official S~tement or any amendment or supplement thereto, or any
proceeding for that purpose shall have been initiated or threatened in any such cowt or by any
such authority.
(c) (i) The Constitution of the State of Texas shall be amended or an amendment shall
be proposed; or (ii) legislation shall be enacted; or (iii) a decision shall have been rendered as
to matters of Texas law; or (iv) any order, ruling or regulation shall have been issued or
proposed by or on behalf of the State of Texas by an official, agency or department thereof,
affecting the tax status of the City, its property or income, its bonds or other obligations
(including the Certificates) or the interest thereon, that in the judgment of the Authorized
Representative would materially affect the market price of the Certificates.
(d) (i) A general suspension of trading in securities shall have occurred on the New
York Stock Exchange; or (ii) the United States shall have become engaged in hostilities
(mcluding the escalation of any hostilities existing on the date hereof, whether foreseeable), the
effect of which, in either case described in clause (i) and (ii), that, in the judgment of the
Authorized Representative, would materially affect the market price of the Certificates.
(e) An event described in Paragraph 6(j) hereof occurs that, in the opinion of the
Authorized Representative, requires a supplement or amendment to the Official Statement that
is deemed by them, in their discretion, to adversely affect the market for the Certificates.
(f) A general banking moratorium shall have been declared by authorities of the United
States, the State ofNew York or the State ofTexas.
9
I :
(g) A lowering of the ratings of "AJJ2,11 11AA" and "AA," initially assigned to the
Certificates by Moody's, S&P and Fitch, respectively, shall occur prior to the Closing.
10. Expenses. {a) The City shall pay all expenses incident to the issuance of the Certificates,
including but not limited to: {i) the cost of the preparation, printing and distribution of the Preliminary
Official Statement and the Official Statement; {ii) the cost of the preparation and printing of the
Certificates; {iii) the fees and expenses of Bond Counsel to the City; {iv) the fees and disbursements
of the City's acc01mtants, advisors, and of any other experts or consultants retained by the City; and
(v) the fees for the bond ratings and any travel or other expenses incurred incident thereto.
(b) The Underwriters shall pay {i) all advertising expenses in COIUlection with the offering of
the Certificates; {ii) the cost of the preparation and printing of all the underwriting documents; and
(m) the fee of McCall, Parkhurst & Horton L.L.P. for such firm's opinion required by Paragraph
8(eX6) hereof.
11. Notices. Any notice or other communication to be given to the City lD1der this Purchase
Contract may be given by delivering the same in writing at the address for the City set forth above,
and any notice or other comnumication to be given to the Underwriters under this Purchase Contract
may be given by delivering the same in writing to Siebert Brandford Shank & Co., L.L.C., 440
Louisiana St, Suite 1520, Houston, TX 77002, Attention: Anderson Bynam.
12. Parties in Interest This Purchase Contract is made solely for the benefit of the City and
the Underwriters {including the successors or assigns of any Underwriter) and no other person shall
acquire or have any right under this contract. The City's representations, warranties and agreements
contained in this Purchase Contract that exist as of the Closing, and without regard to any change in
fact or circumstance occurring subsequent to the Closing, shall remain operative and in full force and
effect, regardless of {i) any investigations made by or on behalf of the Underwriters, and (ii) delivery
of any payment for the Certificates hereunder; and the City's representations and warranties contained
in Paragraph 6 of this Purchase Contract shall remain operative and in full force and effect, regardless
of any tennination of this Purchase Contract
13. Severability. If any provision of this Purchase Contract shall be held or deemed to be
or shall, in fact, be invalid, inoperative or Wlenforceable as applied in any particular case in any
jurisdiction or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule of public policy, or any other reason, such circumstances shall not have the
effect of rendering the provision in question invalid, inoperative or unenforceable in any other case
or circumstances, or of rendering any other provision inoperative or unenforceable to any extent
whatever.
14. Choice of Law. This Purchase Contract shall be governed by and construed in
accordance with the laws of the State of Texas.
15. Execution in Counterparts. This Purchase Contract may be executed in any nmnber of
counterparts, all of which taken together shall constitute one and the same instrument, and any of the
parties hereto may execute this Purchase Contract by signing any such counteipart.
10
I I ,
16. Section Headings. Section headings have been inserted in this Contract as a matter of
convenience of reference only, and it is agreed that such section headings are not a part of this
Contract and will not be used in the interpretation of any provisions of this Contract
17. Status of the Undenvrlten. It is understood and agreed that for all purposes of this
Contract and the transactions contemplated hereby the Underwriters have, in their role as
underwriters, acted solely as independent contractors and have not acted as financial or investment
advisors, fiduciaries or agents to or for the City, whether directly or indirectly through any person.
The City recognizes that the Underwriters expect to profit from the acquisition and potential
distnbution of the Certificates.
18. Effective Date. This Purchase Contract shall become effective upon the execution ofthe
acceptance hereof by the Mayor of the City and shall be valid and enforceable as of the time of such
acceptance.
[Signature page follows.]
II
Accepted:
This 23rd day of September, 1999
Attest:
APPROVED AS TO CONTENT:
Very truly yours,
Siebert Brandford Shank & Co., LLC
J.C. Bmdford & Company
Morgan Keegan & Company, Inc.
Estrada Hinojosa & Company, Inc.
Southwest Securities, Inc.
By: Siebert Brandford Shank & Co., LLC.
Authorized Representative
:.,~~~
Betsy Bu't.tie D~ri'
EXIDBITA
Schedule of Maturities, Interest Rates, Yields and Redemption Provisions
Ci~ of Lubbock, Texas Tax and Waterworks System Surp us Revenue Certificates of Obligation, Series 1999
Maturicy Principal Interest Rate Yield
(2/15) Amount (%) (%)
2001 $ 745,000 5.000% 4.150%
2002 785,000 4.250 4.300
2003 815,000 4.400 4.450
2004 855,000 4.500 4.550
2005 895,000 4.600 4.650
2006 935,000 4.700 4.750
2007 985,000 4.800 4.900
2008 1,030,000 5.000 5.000
2009 1,085,000 5.000 5.050
2010 1,140,000 5.000 5.150
2011 1,200,000 5.500 5.280
2012 1,270,000 5.250 5.380
2013 1,335,000 5.375 5.480
2014 1,410,000 5.375 ' 5.580
2015 1,490,000 5.500 5.630
2016 1,575,000 5.500 5.680
2017 1,665,000 5.600 5.730
2018 1,760,000 5.625 5.780
2019 1,860,000 5.250 5.810
2020 1,965,000 5.700 5.830
The Certificates maturing on and after February 15, 2010 are subject to redemption prior to maturity
at the option of the Issuer on February 15, 2009 or any date thereafter at a price of par plus accrued
interest to the date of redemption.
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i i
EXHIBITB
OPINION OF THE CITY ATTORNEY
Siebert Brandford Shank & Co., LLC
J.C. Bradford & Company
Morgan Keegan & Company, Inc.
Estrada Hinojosa & Company, Inc.
Southwest Secwities, Inc.
% Siebert Brandford Shank & Co., LLC
440 Louisiana St
Suite 1520
Houston, TX 77002
Ladies and Gentlemen:
October 20, 1999
I am the City Attorney for the City of Lubbock, Texas (the "City") and have acted as such in
cormection with the issuance of "City of Lubbock, Texas Tax and Waterworks System Surplus
Revenue Certificates of Obligation, Series 1999," in the aggregate principal amo\Dlt of $24,800,000
(the "Certificates"), pmsuant to the provisions of an ordinance duly adopted by the City Co\Dlcil of
the City on September 23, 1999 (the "Ordinance"). Capitalized tenns not otherwise defined in this
opinion have the meanings assigned in the Purchase Contract
In my capacity as City Attorney to the City, I have reviewed such agreements, docwnents,
certificates, opinions, letters, and other papers as I have deemed necessary or appropriate in rendering
the opinions set forth below.
In making my review, I have assmned the authenticity of all documents and agreements
submitted to me as originals conformity to the originals of all docwnents and agreements submitted
to me as certified or photostatic copies, the authenticity of the originals of such latter docwnents and
agreements, and the accuracy of the statement contained in such documents.
Based upon the foregoing, and subject to the qualifications and exceptions hereinafter set forth,
I am of the opinion that \Dlder the applicable laws of the United States of America and the State of
Texas in force and effect on the date hereof:
1. Based on reasonable inquiry made of the responsible City employees and public officials, the
City is not, to the best of my knowledge, in breach of or in default under any applicable law or
administrative regulation of the State of Texas or the United States, or any applicable judgment
or decree or any trust agreement, loan agreement, bond, note, resolution, ordinance, agreement
or other instnnnent to which the City is party or is otherwise subject and, to the best of my
B-1
knowledge after due inquiry, no event has occurred and is continuing that, with the passage of
~ or the giving of notice, or both, would constitute such a default by the City \Ulder any of
the foregoing; and the execution and delivery of the Purchase Contract and the Certificates, and
the adoption of the Ordinance and compliance with the provisions of each of such agreements
or instruments does not constitute a breach of or default \Ulder any applicable law or
administrative regulation of the State of Texas or the United States or any applicable judgment
or decree or, to the best of my knowledge, any trust agreement, loan agreement, bond, note,
resolution, ordinance, agreement or other instrument to which the City is a party or is otherwise
subject; and
2. Except as disclosed in the Official Statement, no litigation is pending, or, to my knowledge,
threatened, in any court in any way (a) challenging the titles of the Mayor or any of the other
members of the City Co\Ulcil to their respective offices, (b) seeking to restrain or enjoin the
issuan~e or delivery of any of the Certificates, or the collection of taxes levied or to be levied
to pay the principal of and interest on the Certificates, (c) contesting or affecting the validity
or enforceability of the Certificates, the Ordinance or the Purchase Contract (d) contesting the
powers of the City or any authority for the issuance of the Certificates, or the adoption of the
Ordinance, or (e) that would have a material and adverse effect on the financial condition of the
City, including, particularly on the financial condition ofthe Waterworks System of the City.
This opinion is ftnnished solely for your benefit and may be relied upon only by the addresses
hereof or anyone to whom specific pennission is given in writing by me.
Very truly yours,
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