HomeMy WebLinkAboutOrdinance - 2004-O0105 - $2,025,000 Gen. Obligation Bonds And $3,100,000 Tax & Waterworks System Surplus - 09/28/2004ORDINANCE NO. 2004-0 0105
First & Final Reading
September 28, 2004
Item No. 30
AN ORDINANCE authorizing the issuance of "CITY OF LUBBOCK, TEXAS,
GENERAL OBLIGATION BONDS, SERIES 2004"; specifying the terms
and features of said bonds; levying a continuing direct annual ad valorem
tax for the payment of said bonds; and resolving other matters incident
and related to the issuance, sale, payment and delivery of said bonds,
including the approval of a Paying Agent/Registrar Agreement and a
Purchase Contract and the approval and distribution of an Official
Statement pertaining thereto; and providing an effective date.
WHEREAS, the City Council of the City of Lubbock, Texas, hereby finds and determines
that $2,025,000 in principal amount of general obligation bonds approved and authorized to be
issued at an election held on May 15, 2004, should be issued and sold at this time and a
summary of the general obligation bonds authorized at such election, as well as previously held
elections, the principal amounts authorized, amounts heretofore issued and being issued
pursuant to this ordinance and amounts remaining to be issued subsequent hereto is as follows:
Principal Amounts
Date Amount Heretofore Amounts Unissued
Purpose. Authorized Authorized Issued Being Issued Balance
Waterworks System 10-17-87 $2,810,000 $200,000 $-0-$2,610,000
Sewer System 5-21-77 3,303,000 2,175,000 -0-1,128,000
Street Improvements 5-01-93 10,170,000 10,166,000 -0-4,000
Street Improvements 5-15-04 9,210,000 -0-1,590,000 7,620,000
Civic Center/ Auditorium 5-15-04 6,450,000 -0--0-6,450,000
Parks 5-15-04 6,395,000 -0-190,000 6,205,000
Police/Municipal Court 5-15-04 3,350,000 -0--0-3,350,000
Library 5-15-04 2,145,000 -0--0-2,145,000
Fire Stations 5-15-04 1,405,000 -0-85,000 1,320,000
Animal Shelter 5-15-04 1,045,000 -0-160,000 885,000
AND WHEREAS, the City Council hereby reserves and retains the right to issue the
balance of unissued bonds approved at said elections in one or more installments when, in the
judgment of the Council, funds are needed to accomplish the purposes for which such bonds
are voted; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1: Authorization -Designation-Principal Amount-Purpose. General
obligation bonds of the City shall be. and are hereby authorized to be issued in the aggregate
principal amount of $2,025,000, to be designated and bear the title "CITY OF LUBBOCK,
TEXAS, GENERAL OBLIGATION. BONDS, SERIES 2004" (hereinafter referred to as the
"Bonds"), to provide funds in the amount of $2,025,000 for the purpose of making permanent
public improvements and public purposes, to wit: $1 ,590,000 for street improvements, including
drainage, curb, gutters, landscaping, sidewalks, curb ramps, utility line relocation and traffic
signalization and the acquisition of land and right-of-way therefor, $190,000 to acquire or
improve, or both, land for park purposes, $85,000 for constructing, renovating, improving and
equipping fire stations and $160,000 for renovations and improvements to the City's animal
shelter, all in accordance with authority conferred at the aforesaid election and under and in
strict conformity with the Constitution and laws of the State of Texas, including V.T.C.A.,
Government Code, Chapter 1331 and Articre VIII Section 1 of the City Charter of the City of
Lubbock, Texas.
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SECTION 2: Fully Registered Obligations -Bond Date -Authorized Denominations-
Stated Maturities-Interest Rates. The Bonds shall be issued as fully registered obligations only,
shall be dated September 15, 2004 (the "Bond DateH), and, other than the single fully registered
Initial Bond referenced in Section 8 hereof, shall be in denominations of $5,000 or any integral
multiple (within a Stated Maturity) thereof, and shall become due and payable on February 15
in each of the years and in principal amounts (the "Stated Maturities~) in accordance with the
following schedule:
Year of Principal Interest
Maturity Amount Rate(s)
2005 $220,000 5.000%
2006 70,000 5.000%
2007 70,000 3.000%
2008 75,000 3.000%
2009 75,000 3.000%
2010 80,000 3.000%
2011 80,000 3.000%
2012 85,000 3.150%
2013 85,000 3.300%
2014 90,000 3.400%
2015 90,000 3.625%
2016 95,000 3.750%
2017 100,000 3.850%
2018 105,000 4.000%
2019 105,000 4.000%
2020 110,000 4.125%
2021 115,000 4.200%
2022 120,000 4.300%
2023 125,000 4.400%
2024 130,000 4.500%
The Bonds shall bear interest on the unpaid principal amounts from the Bond Date at the
per annum rates shown above (computed on the basis of a 360-day year of twelve 30-day
months); such interest shall be payable on February 15 and August 15 in each year,
commencing February 15, 2005.
SECTION 3: Terms of Payment-Paying Agent/Registrar. The principal of, premium, if
any, and the interest on the Bonds, due and payable by reason of maturity, redemption or
otherwise, shall be payable only to the registered owners or holders of the Bonds (hereinafter
called the "Holders") appearing on the registration and transfer books maintained by the Paying
Agent/Registrar and the payment thereof shall be in any coin or currency of the United States of
America, which at the time of payment is legal tender for the payment of public and private
debts, and shall be without exchange or collection charges to the Holders.
The selection and appointment of JPMorgan Chase Bank, Dallas, Texas to serve as
Paying Agent/Registrar for the Bonds is hereby approved and confirmed. Books and records
relating to the registration, payment, transfer and exchange of the Bonds (the "Security
Register") shall at all times be kept and maintained on behalf of the City by the Paying
Agent/Registrar, as provided herein and in accordance with the terms and provisions of a
"Paying Agent/ Registrar Agreement", substantially in the form attached hereto as Exhibit A, and
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such reasonable rules and regulations as the Paying Agent/Registrar and the City may
prescribe. The Mayor and City Secretary are authorized to execute and deliver such Agreement
in connection with the delivery of the Bonds. The City covenants to maintain and provide a
Paying Agent/Registrar at all times until the Bonds are paid and discharged, and any successor
Paying Agent/Registrar shall be a bank, trust company, financial institution or other entity
qualified and authorized to serve in such capacity and perform the duties and services of Paying
Agent/Registrar. Upon any change in the Paying Agent/Registrar for the Bonds, the City agrees
to promptly cause a written notice thereof to be sent to each Holder by United States Mail, first
class postage prepaid, which notice shall also give the address of the new Paying
Agent/Registrar.
Principal of and premium, if any, on the Bonds shall be payable atthe Stated Maturities
or the redemption thereof, only upon presentation and surrender of the Bonds to the Paying
Agent/Registrar at its designated offices in Dallas·, Texas {the "Designated Payment/Transfer
Office"). Interest on the Bonds shall be paid to the Holders whose name appears in the Security
Register at the close of business on the Record Date (the last business day of the month next
preceding each interest payment date) and shall be paid by the Paying Agent/Registrar (i) by
check sent United States Mail, first class postage prepaid, to the address of the Holder recorded
in the Security Register or (ii) by such other method, acceptable to the Paying Agent/Registrar,
requested by, and at the risk and expense of, the Holder. If the date for the payment of the
principal of or interest on the Bonds shall be a Saturday, Sunday, a legal holiday, or a day on
which 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 on which banking institutions are authorized to close; and payment on such
date shall have the same force and effect as if made on the original date payment was due.
In the event of a nonpayment of interest on a scheduled payment date, and for thirty (30)
days thereafter, a new record date for such interest payment (a "Special Record Date") will be
established by the Paying Agent/Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be 15 days after the Special Record Date)
shall be sent at least five (5) business days prior to the Special Record Date by United States
Mail, first class postage prepaid, to the address of each Holder appearing on the Security
Register at the close of business on the last business day next preceding the date of mailing of
such notice.
SECTION 4: Redemption. (a) Optional Redemption. The Bonds having Stated
Maturities on and after February 15, 2015, shall be subject to redemption prior to maturity, at the
option of the City, in whole or in part in principal amounts of $5,000 or any integral multiple
thereof (and if within a Stated Maturity by lot by the Paying Agent/Registrar), on February 15,
2014 or on any date thereafter at the redemption price of par plus accrued interest to the date of
redemption.
(b) Exercise of Redemption Option. At least forty-five (45) days prior to a
redemption date for the Bonds (unless a shorter notification period shall be satisfactory to the
Paying Agent/Registrar), the City shall ·notify the Paying Agent/Registrar of the decision to
redeem Bonds, the principal amount of each Stated Maturity to be redeemed, and the date of
redemption therefor. The decision of the City to exercise the right to redeem Bonds shall be
entered in the minutes of the governing body of the City.
45516599.2 3
(c) Selection of Bonds for Redemption. If less than all Outstanding Bonds of the
same Stated Maturity are to be redeemed on a redemption date, the Paying Agent/Registrar
shall treat such Bonds as representing the number of Bonds Outstanding which is obtained by
dividing the principal amount of such Bonds by $5,000 and shall select the Bonds, or principal
amount thereof, to be redeemed within such Stated Maturity by lot.
(d) Notice of Redemption. Not less than thirty (30) days prior to a redemption date
for the Bonds, a notice of redemption shall be sent by United States Mail, first class postage
prepaid, in the name of the City and at the City's expense, to each Holder of a Bond to be
redeemed in whole or in part at the address of the Holder appearing on the Security Register at
the close of business on the business day next preceding the date of mailing such notice,. and
any notice of redemption so mailed shall be conclusively presumed to have been duly given
irrespective of whether received by the Holder.
All notices of redemption shall (i) specify the date of redemption for the Bonds, (ii)
identify the Bonds to be redeemed and, in the case of a portion of the principal amount to be
redeemed, the principal amount thereof to be redeemed, (iii) state the redemption price,
(iv) state that the Bonds, or the portion of the principal amount thereof to be redeemed, shall
become due and payable on the redemption date specified, and the interest thereon, or on the
portion of the principal amount thereof to be redeemed, shall cease to accrue from and after the.
redemption date, and (v} specify that payment of the redemption price for the Bonds, or the
principal amount thereof to be redeemed, shall be made at the Designated Payment/Transfer
Office of the Paying Agent/Registrar only upon presentation and surrender thereof by the
Holder. If a Bond is subject by its terms to prior redemption and has been called for redemption
and notice of redemption thereof has been duly given as hereinabove provided, such Bond (or
the principal amount thereof to be redeemed) shall become due and payable and interest
thereon shall cease to accrue from and after the redemption date therefor; provided moneys
sufficient for the payment of such Bond (or of the principal amount thereof to be redeemed) at
the then applicable redemption price are held for the purpose of such payment by the Paying
Agent/Registrar. ·
SECTION 5: Registration -Transfer/Exchange of Bonds-Predecessor Bonds. The
Paying Agent/Registrar shall obtain, record, and maintain in the Security Register the name and
address of each and every owner of the Bonds issued under and pursuant to the provisions of
this Ordinance, or if appropriate, the nominee thereof. Any Bond may be transferred or
exchanged for Bonds of other authorized denominations by the Holder, in person or by his duly
authorized agent, upon surrender of such Bond to the Paying Agent/Registrar for cancellation,
accompanied by a written instrument of transfer or request for exchange duly executed by the
Holder or by his duly authorized agent, in form satisfactory to the Paying Agent/Registrar.
Upon surrender of any Bond (other than the Initial Bonds authorized in Section 8 hereof}
for transfer at the Designated Payment/Transfer Office of the Paying Agent/Registrar, the
Paying Agent/Registrar shall register and deliver, in the name of the designated transferee or
transferees, one or more new Bonds of authorized denominations and having the same Stated
Maturity and of a like aggregate principal amount as the Bond or Bonds surrendered for
transfer.
At the option of the Holder, Bonds (other than the Initial Bonds authorized in Section 8
hereof} may be exchanged for other Bonds of authorized denominations and having the same
Stated Maturity, bearing the same rate of interest and of like aggregate principal amount as the
Bonds surrendered for exchange, upon surrender of the Bonds to be exchanged at the
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Designated Payment/Transfer Office of the Paying Agent/Registrar. Whenever any Bonds are
surrendered for exchange, the Paying Agent/Registrar shall register and deliver new Bonds to
the Holder requesting the exchange.
All Bonds issued in any transfer or exchange of Bonds shall be delivered to the Holders
at the Designated Payment/Transfer Office of the Paying Agent/Registrar or sent by United
States Mail, first class, postage prepaid to the Holders, and, upon the registration and delivery
thereof, the same shall be the valid obligations of the City, evidencing the same obligation to
pay, and entitled to the same benefrts under this Ordinance, as the Bonds surrendered in such
transfer or exchange.
All transfers or exchanges of Bonds pursuant to this Section shall be made without
expense or service charge to the Holder, except as otherwise herein provided, and except that
the Paying Agent/Registrar shall require payment by the Holder requesting such transfer or
exchange of any tax or other governmental charges required to be paid with respect to such
transfer or exchange.
Bonds canceled by reason of an exchange or transfer pursuant to the provisions hereof
are hereby defined to be "Predecessor Bonds," evidencing all or a portion, as the case may be,
of the same obligation to pay evidenced by the new Bond or Bonds registered and delivered in
the exchange or transfer therefor. Additionally, the term .. Predecessor Bonds" shall include any
mutilated, lost, destroyed, or stolen Bond for which a replacement Bond has been issued,
registered and delivered in lieu thereof pursuant to the provisions of Section 11 hereof and such
new replacement Bond shall be deemed to evidence the same obligation as the mutilated, lost,
destroyed, or stolen Bond.
Neither the City nor the Paying Agent/Registrar shall be required to issue or transfer to
an assignee of a Holder any Bond called for redemption, in whole or in part, within 45 days of
the date fixed for the redemption of such Bond; provided, however, such limitation on
transferability shall not be applicable to an exchange by the Holder of the unredeemed balance
of a Bond called for redemption in part.
SECTION 6: Book-Entry Only Transfers and Transactions. Notwithstanding the
provisions contained in Sections 3, 4 and 5 hereof relating to the payment, and
transfer/exchange of the Bonds, the City hereby approves and· authorizes the use of
"Book-Entry Only" securities clearance, settlement and transfer system provided by The
Depository Trust Company (DTC), a limited purpose trust company organized under the laws of
the State of New York, in accordance with the operational arrangements referenced in the
Blanket Issuer Letter of Representation, by and between the City and DTC (the "Depository
Agreement").
Pursuant to the Depository Agreement and the rules of DTC, the Bonds shall be
deposited with DTC who shall hold said Bonds for its participants (the "DTC Participants").
While the Bonds are held by DTC under the Depository Agreement, the Holder of the Bonds on
the Security Register for all purposes, including payment and notices, shall be Cede & Co., as
nominee of DTC, notwithstanding the ownership of each actual purchaser or owner of each
Bond (the "Beneficial Owners") being recorded in the records of DTC and DTC Participants.
In the event DTC determines to discontinue serving as securities depository for the
Bonds or otherwise ceases to provide book-entry clearance and settlement of securities
transactions in general or the City determines that DTC is incapable of properly discharging its
45516599.2 5
duties as securities depository for the Bonds, the City covenants and agrees with the Holders of
the Bonds to cause Bonds to be printed in definitive fonn and provide for the Bonds to be issued
and delivered to DTC Participants and Beneficial Owners, as the case may be. Thereafter, the
Bonds in definitive fonn shall be assigned, transferred and exchanged on the Security Register
maintained by the Paying Agent/Registrar and payment of such Bonds shall be made in
accordance with the provisions of Sections 3, 4 and 5 hereof.
SECTION 7: Execution -Registration. The Bonds shall be executed on behalf of the
City by the Mayor under its seal reproduced or impressed thereon and countersigned by the
City Secretary. The signature of said officers on the Bonds may be manual or facsimile. Bonds
bearing the manual or facsimile signatures of individuals who are or were the proper officers of
the City on the Bond Date shall be deemed to be duly executed on behalf of the City,
notwithstanding that such individuals or either of them shall cease to hold such offices at the
time of delivery of the Bonds to the initial purchaser(s) and with respect to Bonds delivered in
subsequent exchanges and transfers, all as authorized and provided in V.T.C.A., Government
Code, Chapter 1201.
No Bond shall be entitled to any right or benefit under this Ordinance, or be valid or
obligatory for any purpose, unless there appears on such Bond either a certificate of registration
substantially in the form provided in Section 9(c), manually executed by the Comptroller of
Public Accounts of the State of Texas, or his duly authorized agent, or a certificate of
registration substantially in the form provided in Section 9(d), manually executed by an
authorized officer, employee or representative of the Paying AgenVRegistrar, and either such
certificate duly signed upon any Bond shall be conclusive evidence, and the only evidence, that
such Bond has been duly certified, registered and delivered.
SECTION 8: Initial Bond(s). The Bonds herein authorized shall be initially issued
either (i) as a single fully registered bond in the total principal amount stated in Section 1 hereof
with principal installments to become due and payable as provided in Section 2 hereof and
numbered T-1, or (ii) as multiple fully registered bonds, being one bond for each year of maturity
in the applicable principal amount and denomination and to be numbered consecutively from
T-1 and upward (hereinafter called the "Initial Bond(s)") and, in either case, the Initial Bond(s)
shall be registered in the name of the initial purchaser(s) or the designee thereof. The Initial
Bond(s) shall be the Bonds submitted to the Office of the Attorney General of the State of Texas
for approval, certified and registered by the Office of the Comptroller of Public Accounts of the
State of Texas and delivered to the initial purchaser(s). Any time after the delivery of the Initial
Bond(s), the Paying AgenVRegistrar, pursuant to written instructions from the initial
purchaser(s), or the designee thereof, shall cancel the Initial Bond(s) delivered hereunder and
exchange therefor definitive Bonds of authorized denominations, Stated Maturities, principal
amounts and bearing applicable interest rates for transfer and delivery to the Holders named at
the addresses identified therefor; all pursuant to and in accordance with such written
instructions from the initial purchaser(s), or the designee thereof, and such other information
and documentation as the Paying AgenVRegistrar may reasonably require.
SECTION 9: Forms. (a) Forms Generall'i. The Bonds, the Registration Certificate of
the Comptroller of Public Accounts of the State of Texas, the Registration Certificate of Paying
AgenVRegistrar, and the form of Assignment to be printed on each of the Bonds, shall be
substantially in the fonns 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
45516599.2 6
Association) and such legends and endorsements (including insurance legends in the event the
Bonds, or any maturities thereof, are purchased with insurance and any reproduction of an
opinion of counsel) thereon as may, consistently herewith, be established by the City or
determined by the officers executing such Bonds as evidenced by their execution. Any portion
of the text of any Bonds may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Bond.
The definitive Bonds and the Initial Bond(s) shall be printed, lithographed, or engraved,
typewritten, photocopied or otherwise reproduced in any other similar manner, all as determined
by the officers executing such Bonds as evidenced by their execution thereof.
(b) Form of Definitive Bond.
REGISTERED REGISTERED NO. $ ______ __
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF LUBBOCK, TEXAS,
GENERAL OBLIGATION BOND, SERIES 2004
Issue Date: Interest Rate: Stated Maturity: CUSIP NO:
September 15, 2004 %
Registered Owner:
Principal Amount:
The City of Lubbock (hereinafter referred to as the "City"), a body corporate and political
subdivision 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
hereinabove stated (or so much thereof as shall not have been paid upon prior redemption) and
to pay interest on the unpaid principal amount hereof from the Bond Date at the per annum rate
of interest specified above computed on the basis of a 360-day year of twelve 30-day months;
such interest being payable on February 15 and August 15 in each year, commencing
February 15, 2005. Principal of this Bond is payable at its Stated Maturity or redemption to the
registered owner hereof, upon presentation and surrender, at the Designated PaymenVTransfer
Office of the Paying Agent/Registrar executing the registration certificate appearing hereon, or
its successor; provided, however, while this Bond is registered to Cede & Co., the payment of
principal upon a partial redemption of the principal amount hereof may be aceomplished without
presentation and surrender of this Bond. Interest is payable to the registered owner of this Bond
(or one or more Predecessor Bonds, as defined in the Ordinance hereinafter referenced) whose
name appears on the "Security Register" maintained by the Paying Agent/Registrar at the close
of business on the "Record Date", which is the last business day of the month next preceding
each interest payment date, and interest shall be paid by the Paying Agent/Registrar by check
sent United States Mail, first class postage prepaid, to the address of the registered owner
recorded in the Security Register 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 Bond shall be without exchange or
collection charges to the owner hereof and in any coin or currency of the United States of
45516599.2 7
America which at the time of payment is legal tender for the payment of public and private
debts.
This Bond is one of the series specified in its title issued in the aggregate principal
amount of $2,025,000 (herein referred to as the "Bonds") for the purpose of making permanent
public improvements and public purposes, to wit: $1,590,000 for street improvements, including
drainage, curb, gutters, landscaping, sidewalks, curb ramps, utility line relocation and traffic
signalization and the acquisition of land and right-of-way therefor, $190,000 to acquire or
improve, or both, land for park purposes, $85,000 for constructing, renovating, improving and
equipping fire stations and $160,000 for renovations and improvements to the City's animal
shelter, all in accordance with authority conferred at an election and under and in strict
conformity with the Constitution and laws of the State of Texas, including particularly V.T.C.A.,
Government Code, Chapter 1331, and pursuant to an Ordinance adopted by the City Council of
the City {herein referred to as the "Ordinance").
The Bonds maturing on and after February 15, 2015, 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, 2014, 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 the Bonds to be redeemed in whole or in part, and subject to the terms and provisions
relating thereto contained in the Ordinance. If a Bond (or any portion of its principal sum) shall
have been duly called for redemption and notice of such redemption duly given, then upon said
redemption date such Bond (or the portion of its principal sum to be redeemed) shall become
due and payable, and interest thereon shall cease to accrue from and after the redemption date
therefor, provided moneys for the payment of the redemption price and the interest on the
principal amount to be redeemed to the date of redemption are held for the purpose of such
payment by the Paying Agent/Registrar.
In the event a portion of the principal amount of a Bond is to be redeemed and the
registered owner is someone other than Cede & Co., payment of the redemption price of such
principal amount shall be made to the registered owner only upon presentation and surrender of
such Bond to the Designated Payment/Transfer Office of the Paying Agent/Registrar, and a new
Bond or Bonds of like maturity and interest rate in any authorized denominations provided by
the Ordinance for the then unredeemed balance of the principal sum thereof will be issued to
the registered owner, without charge. If a Bond is selected for redemption, in whole or in part,
the City and the Paying Agent/Registrar shall not be required to transfer such Bond to an
assignee of the registered owner within 45 days of the redemption date therefor; provided,
however, such limitation on transferability shall not be applicable to an exchange by the
registered owner of the unredeemed balance of a Bond redeemed in part.
The Bonds are payable from the proceeds of an ad valorem tax levied, within the
limitations prescribed by law, upon all taxable property in the City. Reference is hereby made to
the Ordinance, a copy of which is on file in the Designated Payment/Transfer Office of the
Paying Agent/Registrar, and to all of the provisions of which the owner or holder of this Bond by
the acceptance hereof hereby assents, for definitions of terms; the description of and the nature
and extent of the tax levied for the payment of the Bonds; the terms and conditions relating to
the transfer or exchange of this Bond; the conditions upon which the Ordinance may be
45516599.2 8
amended or supplemented with or without the consent of the Holders; the rights, duties, and
obligations of the City and the Paying Agent/Registrar, the terms and provisions upon which this
Bond may be discharged at or prior to its maturity or redemption, and deemed to be no longer
Outstanding thereunder, and for other terms and provisions contained therein. Capitalized
terms used herein have the meanings assigned in the Ordinance.
This Bond, subject to certain limitations contained in the Ordinance, may be transferred
on the Security Register only upon its presentation and surrender at the Designated
Payment/Transfer Office of the Paying Agent/Registrar, with the Assignment hereon duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the
Paying Agent/Registrar duly executed by, the registered owner hereof, or his duly authorized
agent. When a transfer on the Security Register occurs, one or more new fully registered Bonds
of the same Stated Maturity, of authorized denominations, bearing the same rate of interest, and
of the same aggregate principal amount will be issued by the Paying Agent/Registrar to the
designated transferee or transferees.
The City and the Paying Agent/Registrar, and any agent of either, shall treat the
registered owner whose name appears on the Security Register (i) on the Record Date as the
owner entitled to payment of interest hereon, (ii) on the date of surrender of this Bond as the
owner entitled to payment of principal hereof at its Stated Maturity or its redemption, in whole or
in part, and (iii) on any other date as the owner for all other purposes, and neither the City nor
the Paying Agent/Registrar, or any agent of either, shall be affected by notice to the contrary. In
the event of nonpayment of interest on a scheduled payment date and for thirty (30) days
thereafter, a new record date for such interest payment (a "Special Record Date") will be
established by the Paying Agent/Registrar, if and when funds for the payment of such interest
have been received from the City. Notice of the Special Record Date and of the scheduled
payment date of the past due interest (which shall be 15 days after the Special Record Date)
shall be sent at least five (5) business days prior to the Special Record Date by United States
Mail, first class postage prepaid, to the address of each Holder appearing on the Security
Register at the close of business on the last business day next preceding the date of mailing of
such notice.
It is hereby certified, recited, represented and declared that the City is a body corporate
and political subdivision duly organized and legally existing under and by virtue of the
Constitution and laws of the State of Texas; that the issuance of the Bonds is duly authorized by
law; that all acts, conditions and things required to exist and be done precedent to and in the
issuance of the Bonds to render the same lawful and valid obligations of the City have bee.n
properly done, have happened and have been performed in regular and due time, form and
manner as required by the Constitution and laws of the State of Texas, and the Ordinance; that
the Bonds do not exceed any Constitutional or statutory limitation; and that due provision has
been made for the payment of the principal of and interest on the Bonds by the levy of a tax as
aforestated. In case any provision in this Bond shall be invalid, illegal, or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby. The terms and provisions of this Bond and the Ordinance shall be
construed in accordance with and shall be governed by the laws of the State of Texas.
45516599.2 9
IN WITNESS WHEREOF, the City Council of the City has caused this Bond to be duly
executed under the official seal of the City as of the Bond Date.
CITY OF LUBBOCK, TEXAS
Mayor
COUNTERSIGNED:
City Secretary
(SEAL)
(c) *Form of Registration Certificate of Comptroller of Public Accounts to appear
on Initial Bond(s) only.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
OFFICE OF THE COMPTROLLER )
)
. OF PUBLIC ACCOUNTS ) REGISTER NO .
)
THE STATE OF TEXAS )
I HEREBY CERTIFY that this Bond has been examined, certified as to validity and
approved by the Attorney General of the State of Texas, and duly registered by the Comptroller
of Public Accounts of the State of Texas.
WITNESS my signature and seal of office this----------·
(SEAL)
*NOTE TO PRINTER:
45516599.2
Comptroller of Public Accounts
of the State ofT exas
Do Not Print on Definitive Bonds
10
(d) Form of Certificate of Paying Agent/Registrar to appear on definitive Bonds only.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Bond has been duly issued and registered in the name of the Registered Owner
shown above under the provisions of the within·mentioned Ordinance; the bond or bonds of the
above entitled and designated series originally delivered having been approved by the Attorney
General of the State of Texas and registered by the Comptroller of Public Accounts, as shown
by the records of the Paying Agent/Registrar.
The designated offices of the Paying Agent/Registrar in Dallas, Texas, is the Designated
Payment/Transfer Office for this Bond.
Registration Date:
(e) Form of Assignment.
JPMORGAN CHASE BANK,
Dallas, Texas,
as Paying AgentJRegistrar
By---~~---------Authorized Signature
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns, and transfers unto (Print or
typewrite name, address, and zip code of transferee:), ______________ _
(Social Security or other identifying number: )
the within Bond and all rights thereunder, and hereby irrevocably constitutes and appoints
----~-~~-~--:-"'"'":-:--:--::------·attorney to transfer the within Bond on the
books kept for registration thereof, with full power of substitution in the premises.
DATED: __________________ _
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 Bond in
every particular.
(f) The Initial Bond{s) shall be in the form set forth in paragraph B of this Section.
except that the form of the single fully registered Initial Bond shall be modified as follows:
Heading and first paragraph shall be modified to read as follows:
45516599.2 11
REGISTERED
NO.
Issue Date:
September 15, 2004
Registered Owner:
Principal Amount:
UNITED STATES OF AMERICA
STATE OF TEXAS
CITY OF LUBBOCK, TEXAS,
GENERAL OBLIGATION BONDS, SERIES 2004
REGISTERED $ ___ _
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 order of 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
PRINCIPAL
INSTALLMENTS
INTEREST
RATE
(Information to be inserted from schedule in Section 2 hereof).
(or so much principal thereof as shall not have been prepaid prior to maturity) and to pay
interest on the unpaid Principal Amount hereof from the Bond Date at the per annum rates of
interest specified above computed on the basis of a 360-day year of twelve 30-day months;
such interest being payable on February 15 and August 15 in each year, commencing
February 15, 2005. Principal installments of this Bond are payable in the year of maturity or on
a prepayment date to the registered owner hereof by JPMorgan Chase Bank, Dallas, Texas (the
"Paying Agent/Registrar"), upon presentation and surrender, at its designated offices in Dallas,
Texas (the "Designated Payment/Transfer Office"). Interest is payable to the registered owner
of this Bond whose name appears on the "Security Register" maintained by the Paying
Agent/Registrar at the close of business on the "Record Date", which is the last business day of
the month next preceding each interest payment date, and interest shall be paid by the Paying
Agent/Registrar by check sent United States Mail, first class postage prepaid, to the address of
the registered owner recorded in the Security Register 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 Bond shall be without
exchange or collection charges to the owner hereof and in any coin or currency of the United
States of America which at the time of payment is legal tender for the payment of public and
private debts.
SECTION 10: Levv of Taxes. To provide for the payment of the "Debt Service
Requirements" of the Bonds, being (i) the interest on the Bonds and (ii) a sinking fund for their
payment at maturity or redemption or a sinking fund of 2% (whichever amount is the greater),
there is hereby levied, and there shall be annually assessed and collected in due time, form,
and manner, a tax on all tejxable property in the City, within the iimitations prescribed by law,
45516599.2 12
and such tax hereby levied on each one hundred dollars' valuation of taxable property in the
City for the Debt Service Requirements of the Bonds shall be at a rate from year to year as will
be ample and sufficient to provide funds each year to pay the principal of and interest on said
Bonds while Outstanding; full allowance being made for delinquencies and costs of collection;
separate books and records relating to the receipt and disbursement of taxes levied, assessed
and collected for and on account of the Bonds shall be kept and maintained by the City at all
times while the Bonds are Outstanding, and the taxes collected for the payment of the Debt
Service Requirements on the Bonds shall be deposited to the credit of a "Special 2004 Bond
Account" (the "Interest and Sinking Fund") maintained on the records of the City and deposited
in a special fund maintained at an official depository of the City's funds; and such tax hereby
levied, and to be assessed and collected annually, is hereby pledged to the payment of the
Bonds.
Proper officers of the City are hereby authorized and directed to cause to be transferred
to. the Paying Agent/ Registrar for the Bonds, from funds on deposit in the Interest and Sinking
Fund, amounts sufficient to fully pay and discharge promptly each installment of interest and
principal of the Bonds as the same accrues or matures or comes due by reason of redemption
prior to maturity; such transfers of funds to be made in such manner as will cause collected
funds to be deposited with the Paying Agent/Registrar on or before each principal and interest
payment date for the Bonds.
SECTION 11: Mutilated-Destroyed-Lost and Stolen Bonds. In case any Bond shall be
mutilated, or destroyed, lost or stolen, the Paying Agent/Registrar, subject to City approval and
in its discretion, may execute and deliver a replacement Bond of like form and tenor, and in the
same denomination and bearing a number not contemporaneously outstanding, in exchange
and substitution for such mutilated Bond, or in lieu of and in substitution for such destroyed, lost
or stolen Bond, only upon (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
Bond, and of the authenticity of the ownership thereof and (ii) the furnishing to the Paying
Agent/Registrar of indemnification in an amount satisfactory to hold the City and the Paying
Agent/Registrar harmless. All expenses and charges associated with such indemnity and with
the preparation, execution and delivery of a replacement Bond shall be borne by the Holder of
the Bond mutilated, or destroyed, lost or stolen.
Every replacement Bond issued pursuant to this Section shall be a valid and binding
obligation, and shall be entitled to all the benefits of this Ordinance equally and ratably with all
other Outstanding Bonds; notwithstanding the enforceability of payment by anyone of the
destroyed, lost, or stolen Bonds.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement and payment of mutilated, destroyed,
lost or stolen Bonds.
SECTION 12: Satisfaction of Obligation of City. If the City shall pay or cause to be paid,
or there shall otherwise be paid to the Holders, the principal of, premium, if any, and interest on
the Bonds, at the times and in the manner stipulated in this Ordinance, then the pledge of taxes
levied under this Ordinanee and all covenants, agreements, and other obligations of the City to
the Holders shall thereupon cease, terminate, and be discharged and satisfied.
Bonds or any principal amount(s) thereof shall be deemed to have been paid within the
meaning and with the effect expressed above in this Section when (i) money sufficient to pay in
45516599.2 13
full such Bonds or the principal amount(s) thereof at maturity or (if notice of redemption has
been duly given or waived or if irrevocable arrangements therefor acceptable to the Paying
Agent/ Registrar have been made) the redemption date thereof, together with all interest due
thereon, shall have been irrevocably deposited with and held in trust by the Paying
Agent/Registrar, or an authorized escrow agent, or (ii) Government Securities shall have been
irrevocably deposited in trust with the Paying Agent/Registrar, or an authorized escrow agent,
which Government Securities have been certified by an independent accounting firm to mature
as to principal and interest in such amounts and at such times as will insure the availability,
without reinvestment, of sufficient money, together with any moneys deposited therewith, if any,
to pay when due the principal of and interest on such Bonds, or the principal amount(s) thereof,
on and prior to the Stated Maturity thereof or (if notice of redemption has been duly given or
waived or if irrevocable arrangements therefor acceptable to the Paying Agent/ Registrar have
been made) the redemption date thereof. The City covenants that no deposit of moneys or
Government Securities will be made under this Section and no use made of any such deposit
which would cause the Bonds to be treated as "arbitrage bonds" within the meaning of
Section 148 of the Internal Revenue Code of 1986, or regulations adopted pursuant thereto.
Any moneys so deposited with the Paying Agent/Registrar, or an authorized escrow
agent, and all income from Government Securities held in trust by the Paying Agent/Registrar,
or an authorized escrow agent, pursuant to this Section which is not required for the payment of
the Bonds, or any principal amount(s) thereof, or interest thereon with respect to which such
moneys have been so deposited shall be remitted to the City or deposited as directed by the
City. Furthermore, any money held by the Paying Agent/Registrar for the payment of the
principal of and interest on the Bonds and remaining unclaimed for a period of three (3) years
after the Stated Maturity, or applicable redemption date, of the Bonds for which such moneys
were deposited and are held in trust to pay, shall upon the request of the City be remitted to the
City against a written receipt therefor. Notwithstanding the above and foregoing, any remittance
of funds from the Paying Agent/Registrar to the City shall be subject to any applicable
unclaimed property laws of the State of Texas.
The term "Government Securities", as used herein, means (i) direct noncallable
obligations of the United States of America, including obligations the principal of and interest on
which are unconditionally guaranteed by the United States of America, (ii) noncallable
obligations of an agency or instrumentality of the · United States, including obligations
unconditionally guaranteed or insured by the agency or instrumentality and on the date of their
acquisition or purchase by the City are rated as to investment quality by a nationally recognized
investment rating firm not less than AAA or its equivalent and (iii) noncallable obligations of a
state or an agency or a county, municipality, or other political subdivision of a state that have
been refunded and on the date of their acquisition or purchase by the City, are rated as to
investment quality by a nationally recognized investment rating firm not less than AAA or its
equivalent.
SECTION 13: Ordinance a Contract-Amendments -Outstanding Bonds. This
Ordinance shall constitute a contract with the Holders from time to time, be binding on the City,
and shall not be amended or repealed by the City while any Bond remains Outstanding except
as permitted in this Section and in Section 29 hereof. The City may, without the consent of or
notice to any Holders, from time to time and at any time, amend this Ordinance in any manner
not detrimental to the interests of the Holders, including the curing of any ambiguity,
inconsistency, or formal defect or omission herein. In addition, the City may, with the consent of
Holders holding a majority in aggregate principal amount of the Bonds then Outstanding
affected thereby, amend, add to, or rescind any of the provisions of this Ordinance; provided
45516599.2 14
that, without the consent of all Holders of Outstanding Bonds, no such amendment, addition, or
rescission shall (1) extend the time or times of payment of the principal of, premium, if any, and
interest on the Bonds, reduce the principal amount thereof, the redemption price therefor, or the
rate of interest thereon, or in any other way modify the terms of payment of the principal of,
premium, if any, or interest on the Bonds, (2) give any preference to any Bond over any other
Bond, or (3) reduce the aggregate principal amount of Bonds required to be held by Holders for
consent to any such amendment, addition, or rescission.
The term "Outstanding" when used in this Ordinance with respect to Bonds means, as of
the date of determination, all Bonds theretofore issued and delivered under this Ordinance,
except:
( 1 ) those Bonds canceled by the Paying Agent/Registrar or delivered
to the Paying Agent/Registrar for cancellation;
(2) those Bonds deemed to be duly paid by the City in accordance
with the provisions of Section 12 hereof; and
(3) those mutilated, destroyed, lost, or stolen Bonds which have been
replaced with Bonds registered and delivered in lieu thereof as provided in
Section 11 hereof.
SECTION 14: Covenants to Maintain Tax-Exempt Status. (a) Definitions. When used
in this Section, the following terms have the following meanings:
"Closing Date" means the date on which the Bonds are first authenticated
and delivered to the initial purchasers against payment therefor.
"Code" means the Internal Revenue Code of 1986, as amended by all
legislation, if any, effective on or before the Closing Date.
"Computation Date" has the meaning setforth in Section 1.148-1 (b) of the
Regulations.
"Gross Proceeds" means any proceeds as defined in Section 1.148-1(b)
of the Regulations, and any replacement proceeds as defined in Section
1.148-1 (c) of the Regulations, of the Bonds.
"lnvestmenf' has the meaning set forth in Section 1.148-1(b) of the
Regulations.
"Nonpurpose Investment" means any investment property, as defined in
section 148(b) of the Code, in which Gross Proceeds of the Bonds are invested
and which is not acquired to carry out the governmental purposes of the Bonds.
"Rebate Amounf' 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
45516599.2 15
Bonds. Any reference to any specific Regulation shall also mean, as
appropriate, any proposed, temporary or final Income Tax Regulation designed
to supplement, amend or replace the specific Regulation referenced.
"Yield" of {1) any Investment has the meaning set forth in Section 1.148-
5 of the Regulations; and (2) the Bonds 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
Bond to become includable in the gross income, as defined in section 61 of the Code, of the
owner thereof for federal income tax purposes. Without limiting the generality of the foregoing,
unless and until the City receives a written opinion of counsel nationally recognized in the field
of municipal bond law to the effect that failure to comply with such covenant will not adversely
affect the exemption from federal income tax of the interest on any Bond, the City shall compfy
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 Bonds:
(1) exclusively own, operate and possess all property the acquisition,
construction or improvement of which is to be financed or refinanced directly or
indirectly with Gross Proceeds of the Bonds, and not use or permit the use of
such Gross Proceeds (including all contractual arrangements with terms different
than those applicable to the general public) or any property acquired, constructed
or improved with such Gross Proceeds in any activity carried on by any person or
entity (including the United States or any agency, department and instrumentality
thereof) other than a state or local government, unless such use is solely as a
member of the general public; and
(2) not directly or indirectly impose or accept any charge or other
payment by any person or entity who is treated as using Gross Proceeds of the
Bonds or any property the acquisition, construction or improvement of which is to
be financed or refinanced directly or indirectly with such Gross Proceeds, other
than taxes of general application within the City or interest earned on
investments acquired with such Gross Proceeds pending application for their
intended purposes.
(d) No Private Loan. Except to the extent permitted by section 141 of the Code and
the Regulations and rulings thereunder, the City shall not use Gross Proceeds of the Bonds to
make or finance loans to any person or entity other than a state or local government. For
purposes of the foregoing covenant, such Gross Proceeds are considered to be "loaned" to a
person or entity if: (1) property acquired, constructed or improved with such Gross Proceeds is
sold or leased to such person or entity in a transaction which creates a debt for federal income
tax purposes; {2) capacity in or service from such property is committed to such person or entity
under 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,
45516599.2 16
constructed or improved with such Gross Proceeds are otherwise transferred in a transaction
which is the economic equivalent of a loan.
(e) Not to Invest at Higher Yield. Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the City shall not at any time prior to the
final Stated Maturity of the Bonds directly or indirectly invest Gross Proceeds in any Investment
(or use Gross Proceeds to replace money so invested), if as a result of such investment the
Yield from the Closing Date of all Investments acquired with Gross Proceeds (or with money
replaced thereby), whether then held or previously disposed of, exceeds the Yield of the Bonds.
(f) Not Federally Guaranteed. Except to the extent permitted by section 149{b) of
the Code and the Regulations and rulings thereunder, the City shall not take or omit to take any
action which would cause the Bonds to be federally guaranteed within the meaning of section
149(b) of the Code and the Regulations and rulings thereunder.
(g) Information Report. The City shall timely file the information required by section
149(e} of the Code with the Secretary of the Treasury on Form 8038-G or such other form and
in such place as the Secretary may prescribe.
(h) Rebate of Arbitrage Profits. Except to the extent otherwise provided in section
148(f) of the Code and the Regulations and rulings thereunder:
(1) The City shall account for all Gross Proceeds (including all
receipts, expenditures and investments thereof) on its books of account
separately and apart from all other funds (and receipts, expenditures and
investments thereof) and shall retain all records of accounting for at least six
years after the day on which the last Outstanding Bond is discharged. However,
to the extent permitted by law, the City may commingle Gross Proceeds of the
Bonds with other money of the City, provided that the City separately accounts
for each receipt and expenditure of Gross Proceeds and the obligations acquired
therewith.
(2) Not less frequently than each Computation Date, the City shall
calculate the Rebate Amount in accordance with rules set forth in section 148(f)
of the Code and the Regulations and rulings thereunder. The City shall maintain
such calculations with its official transcript of proceedings relating to the issuance
of the Bonds until six years after the final Computation Date.
(3) As additional consideration for the purchase of the Bonds by the
Purchasers and the loan of the money represented thereby and in order to
induce such purchase by measures designed to insure the excludability of the
interest thereon from the gross income of the owners thereof for federal income
tax purposes, the City shall pay to the United States from the construction fund,
other appropriate fund, or if permitted by applicable Texas statute, regulation or
opinion of the Attorney General of the State of Texas, the Interest and Sinking
Fund the amount that when added to the future value of previous rebate
payments made for the Bonds equals (i) in the case of a Final Computation Date
as defined in Section 1.148-3(e)(2) of the Regulations, one hundred percent
{100%) of the Rebate Amount on such date; and (ii) in the case of any other
Computation Date, ninety percent (90%) of the Rebate Amount on such date. In
all cases, the rebate payments shall be made at the times, in the installments, to
45516599.2 17
the place and in the manner as is or may be required by section 148(f) of the
Code and the Regulations and rulings thereunder, and shall be accompanied by
Form 8038-T or such other forms and information as is or may be required by
Section 148(f) of the Code and the Regulations and rulings thereunder.
(4} The City shall exercise reasonable diligence to assure that no
errors are made in the calculations and payments required by paragraphs (2) and
(3), and if an error is made, to discover and promptly correct such error within a
reasonable amount of time thereafter (and in all events within one hundred eighty
(180) days after discovery of the error), including payment to the United States of
any additional Rebate Amount owed to it, interest thereon, and any penalty
imposed under Section 1.148-3(h) of the Regulations.
(i) Not to Divert Arbitrage Profits. Except to the extent permitted by section 148 of
the Code and the Regulations and rulings thereunder, the City shall not, at any time prior to the
earlier of the Stated Maturity or final payment of the Bonds, enter into any transaction that
reduces the amount required to be paid to the United States pursuant to Subsection H of this
Section because such transaction results in a smaller profit or a larger loss than would have
resulted if the transaction had been at arm's length and had the Yield of the Bonds not been
relevant to either party.
G) Elections. The City hereby directs and authorizes the Mayor, City Secretary, City
Manager, Chief Financial Officer, Cash and Debt Manager, and 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 Bonds,
in the Certificate as to Tax Exemption or similar or other appropriate certificate, form or
document.
SECTION 15: Sale of Bonds-Approval and Execution of Purchase Contract. The sale of
the Bonds to A. G. Edwards & Sons, Inc. and Estrada Hinojosa & Company, Inc. (herein
referred to as the "Underwriters") in accordance with the Purchase Contract, dated .
September 28, 2004, attached hereto as Exhibit B and incorporated herein by reference as a
part of this Ordinance for all purposes, is hereby approved and authorized. The Mayor is
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.
SECTION 16: Official Statement. The use of the Preliminary Official Statement, dated
September 21, 2004, in· the offering and sale of the Bonds is hereby ratified, confirmed and
approved in all respects, and the City Council hereby finds that the information and data
contained in said Preliminary Official Statement pertaining to the City and its financial affairs is
true and correct in all material respects and no material facts have been omitted therefrom
which are necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading. The final Official Statement, which reflects the terms of sale
(together with such changes approved by the Mayor, Mayor Pro T em, City Manager, Assistant
City Manager, Chief Financial Officer, Cash and Debt Manager, or City Secretary, one or more
of said officials), shall be and is hereby in all respects approved and the Underwriters are
hereby authorized to use and distribute said final Official Statement, dated September 28, 2004,
in the offering, sale and delivery of the Bonds to the public.
45516599.2 18
SECTION 17: Control and Custody of Bonds. The Mayor of the City shall be and is
hereby authorized to take and have charge of all necessary orders and records pending
investigation by the Attorney General of the State of Texas, including the printing and supply of
definitive Bonds, and shall take and have charge and control of the Initial Bond(s) pending the
approval thereof by the Attorney General, the registration thereof by the Comptroller of Public
Accounts and the delivery thereof to the Underwriters.
Furthermore, the Mayor, Mayor Pro Tern, City Secretary, City Manager, Chief Financial
Officer, and Cash and Debt Manager, any one or more of said officials, are hereby authorized
and directed to furnish and execute such documents relating to the City and its financial affairs
as may be necessary for the issuance of the Bonds, the approval of the Attorney General and
the registration by the Comptroller of Public Accounts and, together with the City's financial
advisor, bond counsel and the Paying Agent/Registrar, make the necessary arrangements for
the delivery of the Initial Bond(s) to the Underwriters and the initial exchange thereof for
definitive Bonds.
SECTION 18: Proceeds of Sale. The proceeds of sale of the Bonds, excluding the
accrued interest received from the Underwriters, shall be deposited in a construction fund
maintained at the City's depository bank. Pending expenditure for authorized projects and
purposes, such proceeds of sale may be invested in authorized investments in accordance with
the provisions of V.T.C.A., Government Code, Chapter 2256, including guaranteed investment
contracts permitted by V.T.C.A., Section 2256.015 et seq., and the City's investment policies
and guidelines, and any investment earnings realized shall be expended for such authorized
projects and purposes or deposited in the Interest and Sinking Fund as shall be determined by
the City CounciL Accrued interest received from the Underwriters as well as all surplus
proceeds of sale of the Bonds, including investment earnings, remaining after completion of all
authorized projects or purposes shall be deposited to the credit of the Interest and Sinking
Fund.
SECTION 19: Notices to Holders-Waiver. Wherever this Ordinance provides for notice
to Holders-of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and sent by United States Mail, first class postage prepaid, to
the address of each Holder appearing in the Security Register at the close of business on the
business day next preceding the mailing of such notice.
In any case where notice to Holders is given by mail, neither the failure to mail such
notice to any particular Holders, nor any defect in any notice so mailed, shall affect the
sufficiency of such notice with respect to all other Bonds. Where this Ordinance provides for
notice in any manner, such notice may be waived in writing by the Holder entitled to receive
such notice, either before or after the event with respect to which such notice is given, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Paying Agent/Registrar, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 20: Cancellation. All Bonds surrendered for payment, redemption, transfer,
exchange, or replacement, 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 Bonds previously
certified or registered and delivered which the City may have acquired in any manner
whatsoever, and all Bonds so delivered shall be promptly canceled by the Paying
45516599.2 19
Agent/Registrar. All canceled Bonds held by the Paying Agent/Registrar shall be returned to the
City.
SECTION 21: Legal Opinion. The obligation of the Underwriters to accept delivery of
the Bonds is subject to being furnished a final opinion of Fulbright & Jaworski L.L.P., Attorneys,
Dallas, Texas, approving such Bonds as to their validity, said opinion to be dated and delivered
as of the date of delivery and payment for such Bonds. A true and correct reproduction of said
opinion is hereby authorized to be printed on the definitive Bonds or an executed counterpart
thereof shall accompany the global Bonds deposited with the Depository Trust Company.
SECTION 22: CUSIP Numbers. CUSIP numbers may be printed or typed on the
definitive Bonds. It is expressly provided, however, that the presence or absence of CUSIP
numbers on the definitive Bonds shall be of no significance or effect as regards the legality
thereof and neither the City nor attorneys approving the Bonds as to legality are to be held
responsible for CUSIP numbers incorrectly printed or typed on the definitive Bonds.
SECTION 23: Benefits of Ordinance. Nothing in this Ordinance, expressed or implied,
is intended or shall be construed to confer upon any person other than the City, the Paying
Agent/Registrar and the Holders, any right, remedy, or claim, legal or equitable, under or by
reason of this Ordinance or any provision hereof, this Ordinance and all its provisions being
intended to be and being for the sole and exclusive benefit of the City, the Paying
Agent/Registrar and the Holders.
SECTION 24: 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 25: 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 26: Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
SECTION 27: Construction of Terms. If appropriate in the context of this Ordinance,
words of the singular number shall be considered to include the plural, words of the plural
number shall be considered to include the singular, and words of the masculine, feminine or
neuter gender shall be considered to include the other genders.
SECTION 28: 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 29: Continuing Disclosure Undertaking. (a) Definitions. As used in this
Section, the following terms have the meanings ascribed to such terms below:
"MSRB" means the Municipal Securities Rulemaking Board.
45516599.2 20
"NRMSIR" means each person whom the SEC or its staff has determined
to be a nationally recognized municipal securities information repository within
the meaning of the Rule from time to time. ·
~Rule" means SEC Rule 15c2-12, as amended from time to time.
"SEC" means the United States Securities and Exchange Commission.
"SID" means any person designated by the State of Texas or an
authorized department, officer, or agency thereof as, and determined by the SEC
or its staff to be, a state information depository within the meaning of the Rule
from time to time.
(b) Annual Reports. The City shall 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, 2004) financial information and operating data with respect to the City of the
general type included in the final Official Statement approved by Section 16 of this Ordinance,
being the information described in Exhibit C hereto. Financial statements to be provided shall
be (1) prepared in accordance with the accounting principles described in Exhibit C hereto and
(2) audited, if the City commissions an audit of such statements and the audit is completed
within the period during which they must be provided. If 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 Bonds, if such
event is material within the meaning of the federal securities laws:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
45516599.2
Principal and interest payment delinquencies;
Non-payment related defaults;
Unscheduled draws on debt service reserves reflecting financial difficulties;
Unscheduled draws on credit enhancements reflecting financial difficulties;
Substitution of credit or liquidity providers, or their failure to perform;
Adverse tax opinions or events affecting the tax-exempt status of the Bonds;
Modifications to rights of holders of the Bonds;
Bond calls;
Defeasances;
Release, substitution, or sale of property securing repayment of the Bonds; and
Rating changes.
21
The City shall notify any SID and either each NRMSIR or the MSRB, in a timely manner,
of any failure by the City to provide financial information or operating data in accordance with
subsection (b) of this Section by the time required by such Section.
(d) Limitations, Disclaimers, and Amendments. The City shall be obligated to
observe and perform the covenants specified in this Section while, but only while, the City
remains an "obligated person" with respect to the Bonds within the meaning ofthe Rule, except
that the City in any event will give the notice required by subsection {c) hereof of any Bond calls
and defeasance that cause the City to be no longer such an "obligated person."
The provisions of this Section are for the sole benefit of the Holders and beneficial
owners of the Bonds, and nothing in this Section, express or implied, shall give any benefit or
any legal or equitable right, remedy, or claim hereunder to any other person. The City
undertakes to provide only the financial information, operating data, financial statements, and
notices which it has expressly agreed to provide pursuant to this Section and does not hereby
undertake to provide any other information that may be relevant or material to a complete
presentation of the City's financial results, condition, or prospects or hereby undertake to update
any information provided in accordance with this Section or otherwise, except as expressly
provided herein. The City does not make any representation or warranty concerning such
information or its usefulness to a decision to invest in or sell Bonds at any future date.
UNDER NO CIRCUMSTANCES SHALL THE CITY BE LIABLE TO THE HOLDER OR
BENEFICIAL OWNER OF ANY BOND OR ANY OTHER PERSON, IN CONTRACT OR TORT,
FOR DAMAGES RESULTING IN WHOLE OR IN PART FROM ANY BREACH BY THE CITY,
WHETHER NEGLIGENT OR WITHOUT FAULT ON ITS PART, OF ANY COVENANT
SPECIFIED IN THIS SECTION, BUT EVERY RIGHT AND REMEDY OF ANY SUCH PERSON,
IN CONTRACT OR TORT, FOR OR ON ACCOUNT OF ANY SUCH BREACH SHALL BE
LIMITED TO AN ACTION FOR MANDAMUS OR SPECIFIC PERFORMANCE.
No default by the City in observing or performing its obligations under this Section shall
constitute a breach of or default under this Ordinance for purposes of any other provision of this
Ordinance.
Nothing in this Section is intended or shall act to disclaim, waive, or otherwise limit the
duties of the City under federal and state securities laws.
Notwithstanding anything herein to the contrary, the provisions of this Section may be
amended by the City from time to time to adapt to changed circumstances resulting from a
change in legal requirements, a change in law, or a change in the identity, nature, status, or
type of operations of the City, but only if (1) the provisions of this Section, as so amended,
would have permitted an underwriter to purchase or sell Bonds in the primary offering of the
Bonds in compliance with the Rule, taking into account any amendments or interpretations of
the Rule to the date of such amendment, as well as such changed circumstances, and (2) either
(a) the Holders of a majority in aggregate principal amount (or any greater amount required by
any other provision of this Ordinance that authorizes such an amendment) of the Outstanding
Bonds consent to such amendment or (b) a Person that is unaffiliated with the City (such as
nationally recognized bond counsel) determines that such amendment will not materially impair
the interests of the Holders and beneficial owners of the Bonds. If the City so amends the
provisions of this Section, it shall include with any amended financial information or operating
data nexf provided in accordance with subsection (b) an explanation, in narrative form, of the
45516599.2 22
reasons for the amendment and of the impact of any change in the type of financial information
or operating data so provided.
SECTION 30: MBIA Insurance. The Bonds have been sold with the principal of and
interest thereon being insured by MBIA Insurance Corporation {hereinafter called "MBIA")
pursuant to a Financial Guaranty Insurance Policy. In accordance with the terms and conditions
applicable to insurance provided by MBIA, the City covenants and agrees that, in the event the
principal and interest due on the Bonds shall be paid by MBIA pursuant to the policy referred to
this Section, the assignment and pledge of all funds and all covenants, agreements and other
obligations of the City to the Holders shall continue to exist and MBIA shall be subrogated to the
rights of such Holders; and furthermore, the City covenants and agrees that:
(a) In the event that, on the second business day, and again on the business day,
prior to the payment date on the Bonds, the Paying Agent/Registrar has not received sufficient
moneys to pay all principal of and interest on the Bonds due on the second following or
following, as the case may be, business day, the Paying Agent/Registrar shall immediately
notify MBIA or its designee on the same business day by telephone or telegraph, confirmed in
writing by registered or certified mail, of the amount of the deficiency.
{b) If the deficiency is made up in whole or in part prior to or on the payment date,
the Paying Agent/Registrar shall so notify MBIA or its designee.
(c) In addition, if the Paying Agent/Registrar has notice that any Holder has been
required to disgorge payments of principal of or interest on the Bonds to a trustee in bankruptcy
or creditors or others pursuant to a final judgment by a court of competent jurisdiction that such
payment constitutes avoidable preference to such Holder within the meaning of any applicable
bankruptcy laws, then the Paying Agent/Registrar shall notify the MBIA or its designee of such
fact by telephone or telegraphic notice, confirming in writing by registered or certified mail.
(d) The Paying Agent/Registrar is hereby irrevocably designated, appointed, directed
and authorized to act as attorney-in-fact for Holders of the Bonds as follows:
(1) If and to the extent there is a deficiency in amounts required to
pay interest on the Bonds, the Paying Agent/Registrar shall (a) execute and
deliver to State Street Bank and Trust Company, N.A., or its successors under
the Policy (the "Insurance Paying Agent"), in form satisfactory to the Insurance
Paying Agent, an instrument appointing the MBIA as agent for such Holders in
such legal proceeding related to the payment of such interest and an assignment
to the MBIA of the claims for interest to which such deficiency relates and which
are paid by MBIA, (b) receive as designee to the respective Holders (and not as
Paying Agent/Registrar) in accordance with the tenor of the Policy payment from
the Insurance Paying Agent with respect to the claims for interest so assigned,
and (c) disburse the same to such respective Holders; and
(2) If and to the extent of a deficiency in amounts required to pay
principal of the Bonds, the Paying Agent/Registrar shall (a) execute and deliver
to the Insurance Paying Agent in form satisfactory to the Insurance Paying Agent
an instrument appointing MBIA as agent for such Holder in any legal proceeding
relating to the payment of such principal and an assignment to MBIA of any of
the Bonds surrendered to the Insurance Paying Agent or so much of the principal
thereof as has not previously been paid or for which moneys are not held by the
45516599.2 23
Paying Agent/Registrar and available for such payment (but such assignment
shall be delivered only if payment from the Insurance Paying Agent is received),
(b) receive as designee of the respective Holders (and not as Paying
Agent/Registrar) in accordance with the tenor of the Policy payment therefor from
the Insurance Paying Agent, and (c) disburse the same to such Holders.
(e) Payments with respect to claims for interest on and principal of Bonds disbursed
by the Paying Agent/Registrar from proceeds of the Policy shall not be considered to discharge
the obligation of the City with respect to such Bonds, and MBIA shall become of the owner of
such unpaid Certificate and claims for the interest in accordance with the tenor of the
assignment made to it under the provisions of this subsection or otherwise.
(f) Irrespective of whether any such assignment is executed and delivered, MBIA
and the Paying Agent/Registrar hereby agree for the benefit of the MBIA that:
(1} They recognize that to the extent MBIA makes payments, directly
or indirectly (as by paying through the Paying Agent/Registrar}, on account of
principal of and interest on the Bonds, MBIA will be subrogated to the rights of
such Holders to receive the amount of such principal and interest from the City
as provided and solely from the sources stated in this Ordinance and the Bonds;
and
(2) They will accordingly pay to MBIA the amount of such principal
and interest {including principal and interest recovered under subparagraph (ii} of
the first paragraph of the Policy, which principal and interest shall be deemed
past due and not to have been paid) as provided in this Ordinance and the
Bonds, but only from the sources and in the manner provided herein for the
payment of principal of and interest on the Bonds to Holders, and will otherwise
treat the MBIA as the owner of such rights to the amount of such principal and
interest.
(g) In connection with the issuance of additional obligations, the City shall deliver to
the MBIA a copy of the disclosure document, if any, circulated with respect to such additional
obligations.
{h) No amendment or supplement to this Order may become effective without prior
consent of MBIA. Copies of any amendments made to the documents executed in connection
with the issuance of the Bonds which are consented to by the MBIA shall be sent to Standard &
Poor's Corporation.
(i) MBIA shall receive notice of the resignation or removal of the Paying
Agent/Registrar and the appointment of a successor thereto.
0) MBIA shall receive copies of all notices required to be delivered to Holders and,
on an annual basis, copies of the City's audited financial statements and annual budget.
(k) Any notice that is required to be given to a Holder of the Bonds or to the Paying
Agent/Registrar pursuant to the Ordinance shall also be provided to MBIA. All notices required
to be given to MBIA under the Ordinance shall be in writing and shall be sent by registered or
certified mail addressed to MBIA Insurance Corporation, 113 King Street, Armonk, New York
10504, Attention: Surveillance.
45516599.2 24
(I) MBIA, acting alone, shall have the right to direct all remedies in the event of a
default. MBIA shall be recognized as the registered owner of each bond which it insures for the
purposes of exercising all rights and privileges available to Holders. For Bonds which it insures,
MBIA shall have the right to institute any suit, action, or proceeding at law or in equity under the
same terms as the Holder in accordance with the applicable provisions of this Ordinance.
(m) The City agrees, subject to annual appropriation by the City and to the extent
permitted by law, to reimburse MBIA for all reasonable expenses, including attorneys' fees and
expenses, incurred by MBIA in connection with (i) the enforcement by MBIA of the City's
obligations, or the preservation or defense of any rights of MBIA, under this Ordinance and any
other document executed in connection with the issuance of the Bonds, and (ii) any consent,
amendment, waiver or other action with respect this Ordinance or any related document,
whether or not granted or approved, together with interest on all such expenses from and
including the date incurred to the date of payment at Citibank's Prime Rate 'plus 3% or the
maximum interest rate permitted by law, whichever is less. In addition, MBIA reserves the right
to charge a fee in connection with its review of such consent, amendment or waiver, whether or
not granted or approved.
(n) The City will not enter into a guaranteed investment contract pursuant to the
Public Funds Investment Act without the prior written consent of MBIA and any investment of
money deposited to the credit of the special funds created or maintained pursuant to this
Ordinance shall be in accordance with the Public Funds Investment Act..
(o) The City agrees, subject to annual appropriation by the City and to the extent
permitted by law, to reimburse MSIA for all reasonable expenses, including attorneys' fees and
expenses, incurred by MBIA in connection with (i) the enforcement by MBIA of the City's
obligations, or the preservation or defense of any rights of MBIA, under this Ordinance and any
other document executed in connection with the issuance of the Bonds, and (ii) any consent,
amendment, waiver or other action with respect this Ordinance or any related document,
whether or not granted or approved, together with interest on all such expenses from and
including the date incurred to the date of payment at Citibank's Prime Rate plus 3% or the
maximum interest rate permitted by law, whichever is less. In addition, MBIA reserves the right
to charge a fee in connection with its review of such consent, amendment or waiver, whether or
not granted or approved.
(p) The City agrees not to use MBIA's name in any public document including,
without limitation, a press release or presentation, announcement or forum without MBIA's prior
consent. In the event that the City advised by counsel that it has a legal obligation to disclose
MBIA's name in any press release, public announcement or other public document, the City
shall provide MBIA with at least three (3) business days' prior written notice of its intent to use
MBIA's name together with a copy of the proposed use of MBIA's name and of any description
of a transaction with MBIA and shall obtain MBIA's prior consent as to the form and substance
of the proposed use of MBIA's name and any such description.
(q) The City shall not enter into any agreement nor shall it consent to or participate in
any arrangement pursuant to which Bonds are tendered or purchased for any purpose other
than the redemption and cancellation or legal defeasance of such Bonds without the prior
written consent of MBIA.
45516599.2 25
(r) In regard to any defeasance of the Bonds, MBIA shall provided with an opinion of
counsel acceptance to MBIA that the Bonds have been legally defeased and that the escrow
agreement establishing such defeasance operates to legally defease the Bonds within the
meaning of this Ordinance. In addition, MBIA shall be entitled to receive (i) 15 business days
notice of any advance refunding of the Bonds and {ii) an accountant's report with respect to the
sufficiency of the amounts deposited in escrow to defease the Bonds.
SECTION 31: Public Meeting. It is officially found, determined, and declared that the
meeting at which this Ordinance is adopted was open to the public and public notice of the time,
place, and subject matter of the public business to be considered at such meeting, including this
Ordinance, was given, all as required by Chapter 551, Texas Government Code, as amended.
SECTION 32: Effective Date. This Ordinance shall take effect and be in full force from
and after its adoption on the date shown below in accordance with V.T.C.A., Government Code,
Section 1201.028.
[remainder of page left blank intentionally]
45516599.2 26
PASSED AND ADOPTED, this September 28, 2004.
CITY OF LUBBOCK, TEXAS
ATTEST:
Q~.h-x=-
Citi.Secretary
(City Seal)
APPROVED AS TO CONTENT:
~Ml~ hief Financial Officer
APPROVED AS TO FORM:
(i:L l~cp~
City Attorney l
45516599.2 S-1
Ordinance No. 2004-oOlOS
PAYING AGENT/REGISTRAR AGREEMENT
THIS AGREEMENT entered into as of September 28, 2004 (this "Agreement"), by and
between the City of Lubbock, Texas {the "Issuer"), and JPMorgan Chase Bank, Dallas, Texas, a
New York banking corporation organized and existing under the laws of the State of New York
and authorized to do business in the State of Texas, or its successors,
RECITALS
WHEREAS, the Issuer has duly authorized and provided for the execution and delivery
of its "City of Lubbock, Texas, General Obligation Bonds, Series 2004" (the "Securities"), dated
September 15, 2004, and such Securities are scheduled to be delivered to the initial purchasers
thereof on or about November 2, 2004; and
WHEREAS, the Issuer has selected the Bank to serve as Paying Agent/Registrar in
connection with the payment of the principal of, premium, if any, and interest on said Securities
and with respect to the registration, transfer and exchange thereof by the registered owners
thereof; and
WHEREAS, the Bank has agreed to serve in such capacities for and on behalf of the
Issuer and has full power and authority to perform and serve as Paying Agent/Registrar for the
Securities;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE ONE
APPOINTMENT OF BANK AS
PAYING AGENT AND REGISTRAR
Section 1.01 Appointment. The Issuer hereby appoints the Bank to serve as Paying
Agent with respect to the Securities, and, as Paying Agent for the Securities, the Bank shall be
responsible for paying on behalf of the Issuer the principal, premium (if any), and interest on the
Securities as the same become due and payable to the registered owners thereof; all in
accordance with this Agreement and the "Bond Resolution" (hereinafter defined). The Issuer
hereby appoints the Bank as Registrar with respect to the Securities and, as Registrar for the
Securities, the Bank shall keep and maintain for and on behalf of the Issuer books and records
as to the ownership of said Securities and with respect to the transfer and exchange thereof as
provided herein and in the "Bond Resolution".
The Bank hereby accepts its appointment, and agrees to serve as the Paying Agent and
Registrar for the Securities.
Section 1.02 Compensation. As compensation for the Bank's services as Paying
Agent/Registrar, the Issuer hereby agrees to pay the Bank the fees and amounts set forth in
Annex A attached hereto for the first year of this Agreement and thereafter the fees and
amounts set forth in the Bank's current fee schedule then in effect for services as Paying
Agent/Registrar for municipalities, which shall be supplied to the Issuer on or before 90 days
prior to the close of the Fiscal Year of the Issuer, and shall be effective upon the first day of the
following Fiscal Year.
45517026.1 EXHIBIT A
In addition, the Issuer agrees to reimburse the Bank upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Bank in accordance with any
of the provisions hereof (including the reasonable compensation and the expenses and
disbursements of its agents and counsel).
ARTICLE TWO
DEFINITIONS
Section 2.01 Definitions. For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
"Acceleration Date" on any Security means the date on and after which
the principal or any or all installments of interest, or both, are due and payable on
any Security which has become accelerated pursuant to the terms of the
Security.
"Bank Office" means the designated office of the Bank in Dallas, Texas at
the address shown in Section 3.01 hereof. The Bank will notify the Issuer in
writing of any change in location of the Bank Office.
"Bond Resolution" means the resolution, order, or ordinance of the
governing body of the Issuer pursuant to which the Securities are issued,
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, Mayor Pro Tern, City Manager,
Assistant City Manager, Chief Financial Officer, Cash and Debt Manager, or City
Secretary, any one or more of said officials, and delivered to the Bank.
"Legal Holiday" means a day on which the Bank is required or authorized
to be closed.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision of a 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).
45517026.1 2 EXHIBIT A
"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 address: P. 0. Box 2320, Dallas, Texas 75221-2320 or 2001 Bryan
Street, gth Floor, Dallas, Texas 75201, Attention: Operations.
As Paying Agent, the Bank shall, provided adequate collected funds have been provided
to it for such purpose by or on behalf of the Issuer, pay on behalf of the Issuer the interest on
each Security when due, by computing the amount of interest to be paid each Holder and
making payment thereof to the Holders of the Securities (or their Predecessor Securities) on the
Record Date. All payments of principal and/or interest on the Securities to the registered
owners shall be accomplished (1) by the issuance of checks, payable to the registered owners,
drawn on the paying agent account provided in Section 5. 05 hereof, sent by United States mail,
first class, postage prepaid, to the address appearing on the Security Register or (2) by such
other method, acceptable to the Bank, requested in writing by the Holder at the Holder's risk
and expense.
Section 3.02 Payment Dates. The Issuer hereby instructs the Bank to pay the principal
of and interest on the Securities at the dates specified in the Bond Resolution.
45517026.1 3 EXHIBIT A
ARTICLE FOUR
REGISTRAR
Section 4.01 Security Register-Transfers and Exchanges. The Bank agrees to keep
and maintain for and on behalf of the Issuer at the Bank Office books and records (herein
sometimes referred to as the "Security Register") for recording the names and addresses of the
Holders of the Securities, the transfer, exchange and replacement of the Securities and the
payment of the principal of and interest on the Securities to the Holders and containing such
other information as may be reasonably required by the Issuer and subject to such reasonable
regulations as the Issuer and Bank may prescribe. All transfers, exchanges and replacement of
Securities shall be noted in the Security Register.
Every Security surrendered for transfer or exchange shall be duly endorsed or be
accompanied by a written instrument of transfer, the signature on which has been guaranteed
by an officer of a federal or state bank or a member of the National Association of Securities
Dealers, in form satisfactory to the Bank, duly executed by the Holder thereof or his agent duly
authorized in writing.
The Bank may request any supporting documentation it feels necessary to effect a
re-registration, transfer or exchange of the Securities.
To the extent possible and under reasonable circumstances, the Bank agrees that, in
relation to an exchange or transfer of Securities, the exchange or transfer by the Holders thereof
will be completed and new Securities delivered to the Holder or the assignee of the Holder in
not more than three (3) business days after the receipt of the Securities to be cancelled in an
exchange or transfer and the written instrument of transfer or request for exchange duly
executed by the Holder, or his duly authorized agent, in form and manner satisfactory to the
Paying AgenVRegistrar.
Section 4.02 Certificates. The Issuer shall provide an adequate inventory of printed
Securities to facilitate transfers or exchanges thereof. The Bank covenants that the inventory of
printed Securities will be kept in safekeeping pending their use and reasonable care will be
exercised by the Bank in maintaining such Securities in safekeeping, which shall be not less
than the care maintained by the Bank for debt securities of other governments or corporations
for which it serves as registrar, or that is maintained for its own securities.
Section 4.03 Form of Security Register. The Bank, as Registrar, will maintain the
Security Register relating to the registration, payment, transfer and exchange of the Securities
in accordance with the Bank's general practices and procedures in effect from time to time. The
Bank shall not be obligated to maintain such Security Register in any form other than those
which the Bank has currently available and currently utilizes at the time.
The Security Register may be maintained in written form or in any other form capable of
being converted into written form within a reasonable time.
Section 4.04 List of Security Holders. The Bank will provide the Issuer at any time
requested by the Issuer, upon payment of the required fee, a copy of the information contained
in the Security Register. The Issuer may also inspect the information contained in the Security
Register at any time the Bank is customarily open for business, provided that reasonable time is
allowed the Bank to provide an up-to-date listing or to convert the information into written form.
45517026.1 4 EXHIBIT A
The Bank will not release or disclose the contents of the Security Register to any person
other than to, or at the written request of, an authorized officer or employee of the Issuer, except
upon receipt of a court order or as otherwise required by law. Upon receipt of a court order and
prior to the release or disclosure of the contents of the Security Register, the Bank will notify the
Issuer so that the Issuer may contest the court order or such release or disclosure of the
contents of the Security Register.
Section 4.05 Return of Cancelled Certificates. The Bank will, at such reasonable
intervals as it determines, surrender to the Issuer, Securities in lieu of which or in exchange for
which other Securities have been issued, or which have been paid.
Section 4.06 Mutilated, Destroyed, Lost or Stolen Securities. The Issuer hereby
instructs the Bank, subject to the provisions of Section 11 of the Bond Resolution, to deliver and
issue Securities in exchange for or in lieu of mutilated, destroyed, lost. or stolen Securities as
long as the same does not result in an overissuance.
In case any Security shall be mutilated, or destroyed, lost or stolen, the Bank may
execute and deliver a replacement Security of like form and tenor, and in the same
denomination and bearing a number not contemporaneously outstanding, in exchange and
substitution for such mutilated Security, or in lieu of and in substitution for such destroyed lost or
stolen Security, only upon the approval of the Issuer and after (i) the filing by the Holder thereof
with the Bank of evidence satisfactory to the Bank of the destruction, loss or theft of such
Security, and of the authenticity of the ownership thereof and (ii} the furnishing to the Bank of
indemnification in an amount satisfactory to hold the Issuer and the Bank harmless. All
expenses and charges associated with such indemnity and with the preparation, execution and
delivery of a replacement Security shall be borne by the Holder of the Security mutilated, or
destroyed, lost or stolen.
Section 4.07 Transaction Information to Issuer. The Bank will, within a reasonable
time after receipt of written request from the Issuer, furnish the Issuer information as to the
Securities it has paid pursuant to Section 3.01, Securities it has delivered upon the transfer or
exchange of any Securities pursuant to Section 4.01, and Securities it has delivered in
exchange for or in lieu of mutilated, destroyed, lost, or stolen Securities pursuant to
Section 4.06.
ARTICLE FIVE
THE BANK
Section 5.01 Duties of Bank. The Bank undertakes to perform the duties set forth
herein and agrees to use reasonable care in the performance thereof.
Section 5.02 Reliance on Documents, Etc. (a) The Bank may conclusively rely, as
to the truth of the statements and correctness of the opinions expressed therein, on certificates
or opinions furnished to the Bank.
(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
45517026.1 5 EXHIBIT A
in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity satisfactory to it against such risks or
liability is not assured to it.
(d) The Bank may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note, security, or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties. Without limiting the
generality of the foregoing statement, the Bank need not examine the ownership of any
Securities, but is protected in acting upon receipt of Securities containing an endorsement or
instruction of transfer or power of transfer which appears on its face to be signed by the Holder
or an agent of the Holder. The Bank shall not be bound to make any investigation into the facts
or matters stated in a resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note, security, or other paper or document supplied by
Issuer.
(e) The Bank may consult with counsel, and the written advice of such counsel or
any opinion of counsel shall be full and complete authorization and protection with respect to
any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon.
(f) The Bank may exercise any of the powers hereunder and perform any duties
hereunder either directly or by or through agents or attorneys of the Bank.
Section 5.03 Recitals of Issuer. The recitals contained herein with respect to the
Issuer and in the Securities shall be taken as the statements of the Issuer, and the Bank
assumes no responsibility for their correctness.
The Bank shall in no event be liable to the Issuer, any Holder or Holders of any Security,
or any other Person for any amount due on any Security from its own funds.
Section 5.04 May Hold Securities. The Bank, in its individual or any other capacity,
may become the owner or pledgee of Securities and may otherwise deal with the Issuer with the
same rights it would have if it were not the Paying Agent/Registrar, or any other agent.
Section 5.05 Moneys Held by Bank-Paying Agent Account/Collateralization. Money
deposited by the Issuer with the Bank of the principal (or Redemption Price, if applicable) of or
interest on any Securities shall be segregated from other funds of the Bank and the Issuer and
shall be held in trust for the benefit of the Holders of such Securities.
All money deposited with the Bank hereunder shall be secured in the manner and to the
fullest extent required by law for the security of funds of the Issuer.
Amounts held by the Bank which represent principal of and interest on the Securities
remaining unclaimed by the owner after the expiration of three years from the date such
amounts have become due and payable shall be reported and disposed of by the Bank in
accordance with the provisions of Texas law including, to the extent applicable, Title 6 of the
Texas Property Code, as amended. The Bank shall have no liability by virtue of actions taken in
compliance with this provision.
The Bank is not obligated to pay interest on any money received by it hereunder.
45517026.1 6 EXHIBIT A
This Agreement relates solely to money deposited for the purposes described herein,
and the parties agree that the Bank may serve as depository for other funds of the Issuer, act as
trustee under indentures authorizing other bond transactions of the Issuer, or act in any other
capacity not in conflict with its duties hereunder.
Section 5.06 Indemnification. To the extent permitted by law, the Issuer agrees to
indemnify the Bank for, and hold it harmless against, any loss, liability, or expense incurred
without negligence or bad faith on its part, arising out of or in connection with its acceptance or
administration of its duties hereunder, including the cost and expense against any claim or
liability in connection with the exercise or performance of any of its powers or duties under this
Agreement.
Section 5.07 Interpleader. The Issuer and the Bank agree that the Bank may seek
adjudication of any adverse claim, demand, or controversy over its person as well as funds on
deposit, in either a Federal or State District Court located in the State and County where the
administrative offices of the Issuer is located, and agree that service of process by certified or
registered mail, return receipt requested, to the address referred to in Section 6.03 of this
Agreement shall constitute adequate service. The Issuer and the Bank further agree that the
Bank has the right to file a Bill of Interpleader in any court of competent jurisdiction in the State
of Texas to determine the rights of any Person claiming any interest herein.
Section 5.08 DT Services. It is hereby represented and warranted that, in the event
the Securities are othetWise qualified and accepted for "Depository Trust Companyn services or
equivalent depository trust services by other organizations, the Bank has the capability and, to
the extent within its control, will comply with the "Operational Arrangements", which establishes
requirements for securities to be eligible for such type depository trust services, including, but
not limited to, requirements for the timeliness of payments and funds availability, transfer
turnaround time, and notification of redemptions and calls.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01 Amendment. This Agreement may be amended only by an agreement in
writing signed by both of the parties hereto.
Section 6.02 Assignment. This Agreement may not be assigned by either party without
the prior written consent of the other.
Section 6.03 Notices. Any request, demand, authorization, direction, notice, consent,
waiver, or other document provided or permitted hereby to be given or furnished to the Issuer or
the Bank shall be mailed or delivered to the Issuer or the Bank, respectively, at the addresses
shown on page 9.
Section 6.04 Effect of Headings. The Article and Section headings herein are for
convenience 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.
45517026.1 7 EXHIBIT A
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.
Section 6.10 Termination. This Agreement will terminate (i} on the date of final
payment of the principal of and interest on the Securities to the Holders thereof or (ii} may be
earlier terminated by either party upon sixty (60} days written notice; provided, however, an
early termination of this Agreement by either party shall not be effective until (a) a successor
Paying Agent/Registrar has been appointed by the Issuer and such appointment accepted and
(b} notice given to the Holders of the Securities of the appointment of a successor Paying
Agent/Registrar. Furthermore, the Bank and Issuer mutually agree that the effective date of an
early termination of this Agreement shall not occur at any time which would disrupt, delay or
otherwise adversely affect the payment of the Securities.
Upon an early termination of this Agreement, the Bank agrees to promptly transfer and
deliver the Security Register (or a copy thereof), together with other pertinent books and records
relating to the Securities, to the successor Paying Agent/Registrar designated and appointed by
the Issuer.
The provisions of Section 1.02 and of Article Five shall survive and remain in full force
and effect following the termination of this Agreement.
Section 6.11 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Texas.
45517026.1 8 EXHIBIT A
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
[SEAL]
Attest:
Title:
(CITY SEAL)
Attest:
City Secretary
45517026.1 9
JPMORGAN CHASE BANK, Dallas, Texas,
BY: ----------------------------Title:.
Address: 2001 Bryan Street, 10th Floor
Dallas, Texas 75201
CITY OF LUBBOCK, TEXAS
BY: ~--------------------------Mayor
Address: P. 0. Box 2000
Lubbock, Texas 79457
EXHIBIT A
Ordinance No. 2004-D0105
PURCHASE CONTRACT
$2,025,000 $3,100,000
City of Lubbock, Texas General
Obligation Bonds, Series 2004
Tax and Waterworks System Surplus
Revenue
Certificates of Obligation, Series 2004
September 28, 2004
The Honorable Mayor and Members of the City Council
City of Lubbock
1625 13th Street
Lubbock, Texas7940l
Dear Mayor and Members of the City Council:
A.G. Edwards & Sons, Inc. (the "Authorized Representative") and Estrada Hinojosa &
Company, 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 28, 2004.
1. Purchase and Sale ofthe Securities. Upon the tenns 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 $2,025,000 principal amount of City of Lubbock, General Obligation Bonds, Series
2004 (the "Bonds") and $3,100,000 Tax and Waterworks System Surplus Revenue Certificates of
Obligation, Series 2004 (the "Certificates") (the Bonds and the Certificates are collectively, the
"Securities"). The Securities 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 under the
provisions of the Ordinances (as defined below). The purchase price for the Bonds shall be
$2,012, 134.29, representing the principal amount of the Bonds of$2,025,000, less an Underwriters'
discount on the Bonds of$17,689.27, less a net original issue discount on the Bonds of$5,543.20,
and plus accrued interest in the amount of$1 0,366. 76. The purchase price for the Certificates shall
be $3,078, 762.69, representing the principal amount of the Certificates of $3,1 00,000.00, less an
Underwriters' discount on the Certificates of $23,388.57, less net original issue discount on the
Certificates of $12,504.25, and plus accrued interest in the amount of $14,655.51.
A.G. Edwards & Sons, Inc. 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 hereunder may be taken by the Authorized
Representative alone.
EXHlBIT B -·
2. Ordinances. The Securities shall be as described in and shall be issued and secured
under the provisions of two ordinances, each to be adopted by the City on September 28, 2004,
respectively authorizing the issuance and sale of the Certificates and the Bonds (collectively, the
"Ordinances"). The Securities shall be secured and payable as provided in the Ordinances.
3. Public Offering. It shall be a condition of the obligations of the City to sell and
deliver the Securities to the Undetwriters, and of the obligations of the Undetwriters to purchase and
accept delivery of the Securities, that the entire principal amount of each series of the Securities
authorized by the Ordinances shall be sold and delivered by the City and accepted and paid for by
the Undetwriters at the Closing. The Undetwriters agree to make a bona fide public offering of all
of the Securities of a series, at not in excess of the initial public offering prices, as set forth in the
Official Statement; provided however at least ten percent (10%) of the principal amount of the
Securities of each series and maturity thereof shall be sold to the "public" (exclusive of dealers,
brokers and investment bankers, etc.) at the initial offering price set forth in the Official Statement.
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 $51,250. Such check
is a common "Good Faith" check for the each series of the Securities, and an amount of such check
that is proportionate to the principal amount that a series of the Securities bears to the combined
principal amount of the Securities may be applied toward any obligation of the Undetwriters owing
as a result of the failure of the Underwriters to accept delivery of the Securities, or any series of the
Securities, as provided herein. The City agrees to hold such check uncashed until the Closing to
ensure the perfonnance by the Undetwriters of their obligation to purchase, accept delivery of and
pay for the Securities at the Closing. Concurrently with the payment by the Undetwriters of the
purchase price of the Securities, 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 Securities at the
Closing, or should the City be unable to satisfy the conditions of the obligations ofthe Underwriters
to purchase, accept delivery of and pay for the Securities, as set forth in this Purchase Contract
(unless waived by the Authorized Representative), or should such obligations of the Undetwriters
be tenninated for any reason pennitted by this Purchase Contract, such check shall immediately be
returned to the Authorized Representative. In the event the U ndetwriters fail (other than for a reason
pennitted hereunder) to purchase, accept delivery of and pay for the Securities 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 tenns ofthis Purchase Contract.
5. Official Statement. The Official Statement, including the cover pages and
Appendices thereto, of the City, dated September 28, 2004, with respect to the Securities, as further
amended only in the manner herein provided, is hereinafter called the "Official Statement." The
City hereby authorizes the Ordinances 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
Securities. The City confirms its consent to the use by the Undetwriters prior to the date hereof of
the Preliminary Official Statement, relative to the Securities, dated September 22, 2004 (the
2
EXHIBIT B
"Preliminary Official Statement"), in connection with the preliminary public offering and sale of the
Securities, and it is "deemed final" as of its date, within the meaning, and for the purposes, ofRule
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 fmal
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. 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 ofthis 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
Securities 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 fonn 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. Except as disclosed in the
Offidal Statement, the City has not failed to comply with any undertaking specified in paragraph
(b)(5)(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 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 Ordinances, to sell the Securities, and to issue
and deliver the Securities to the Underwriters as provided herein and to carry out and
consummate all other transactions contemplated by the Ordinances 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 Ordinances, has duly authorized and approved the
execution and delivery of, and the performance by the City of the obligations contained in
the Securities and this Purchase Contract and has duly authorized and approved the
performance by the City of its obligations contained in the Ordinances and in this Purchase
Contract;
3
EXHIBIT B
(c) The City is not in breach of or default under any law or administrative
regulation of the State of Texas or the United States (including regulations of its agencies)
applicable to the issuance of the Securities 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 ofthe 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 ofthe Securities this Purchase Contract
by the City and the execution and delivery of the Securities and the adoption of the
Ordinances 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 or administrative regulation, or
any judgment, decree or 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 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 Securities 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 circumstances under which they were made, not misleading;
(f) Between the date ofthis Purchase Contract and the Closing, the City will not,
without the prior written consent of the Underwriters, sell or issue any additional bonds,
notes or other obligations for borrowed money payable in whole or in part from ad valorem
taxes (except for the City's General Obligation Refunding Bonds that the City is offering
concurrently with the Securities), 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 described in the Official Statement, no litigation is pending or, to
the knowledge of the City, threatened in any court affecting the corporate existence ofthe
City, the title of its officers to their respective offices, or seeking to restrain or enjoin the
issuance or delivery of the Securities, the levy, collection or application of the ad valorem
taxes pledged or to be pledged to pay the principal of and interest on the Bonds and the levy,
collection or application of the ad valorem taxes and revenues of the City's Waterworks
System 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 Securities, or in any way contesting or affecting the validity or enforceability
ofthe Ordinances, or contesting the powers of the City, or any authority for the Securities,
the Ordinances, or this Purchase Contract or contesting in any way the completeness,
accuracy or fairness of the Preliminary Official Statement or the Official Statement;
4
EXHIBIT B
(h) The City will cooperate with the Underwriters in arranging for the
qualification of the Securities 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 ofthe Securities; 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 Securities and the Ordinances contained in the Official
Statement accurately summarize certain provisions of such instruments, and the Securities,
when validly executed, authenticated and delivered in accordance with the Ordinances 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 Ordinances:
U) 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 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 fonn and in a manner approved by the Authorized Representative;
(k) The financial statements contained 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 year•s audited financial statements;
(1) 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 Securities to be applied in
a manner other than as provided in the Ordinances or that would cause the interest of the
Securities to be includable in gross income of the holders thereof for federal income tax
purposes.
7. Closing. At 10:00 A.M., Central Time, on November 2, 2004 (the "Closing"), the
City will deliver the initial securities certificates of each series of the Securities (as provided for in
the respective Ordinances) to the Underwriters and the City shall take appropriate steps to provide
DTC with one definite securities certificate for each year of maturity of each series of the Securities,
5
D<HIBIT B
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 Securities 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
Securities as set forth in Paragraph 1 hereof in immediately available funds. The inability or other
failure of the City to meet the conditions for delivery of one or more series of the Securities shall
not, in, and of itself, relieve the Underwriters of their obligations to accept delivery and pay the
purchase price of any series of Securities for which the conditions for delivery have occurred.
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 the paying agent/registrar for the Securities, as identified in the Official
Statement, 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 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 Securities 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:
· (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 ofthe date of
Closing, as if made on the date of Closing;
(b) At the time of the Closing, (i) the Ordinances shall be in full force and effect,
and the Ordinances 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
Securities shall be deposited and applied as described in the Official Statement and in the
Ordinances;
(c) At the time of the Closing, all official action of the City related to the
Ordinances 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 documents:
6
EXHlBIT B
. . -·
( 1) The Official Statement of the City, executed on behalf of the City by
the Mayor and City Secretary or a conformed copy thereof;
(2) The Ordinances, 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
Ordinances shall contain the agreement of the City, in form satisfactory to the
Underwriters, that is described under the caption "Continuing Disclosure of
Information" in the Preliminary Official Statement;
(3) The opinion pertaining to each series of the Securities, 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 with respect each series of the Securities,
dated on or prior to the date of Closing, of the Attorney General ofTexas, approving
the Securities as required by law and the registration certificate of the Comptroller
of Public Accounts ofthe State of Texas;
(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 Counsel delivered in accordance
with the provisions of paragraph 8( e)(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 terms; (b) in its capacity as
Bond Counsel, such finn has reviewed the information in the Official Statement
under the captions or subcaptions "The Obligations" (exclusive of the information
under the subcaptions "Book-Entry Only System," "Sources and Uses of Bond
Proceeds," "Sources and Uses of Certificate Proceeds" and ''Bondholders'
Remedies"), "Tax Matters" and "Continuing Disclosure oflnfonnation" (exclusive
ofthe information under the subcaption "Compliance with Prior Undertakings") and
the subcaptions "Legal Matters" and "Legal Investments and Eligibility to Secure
Public Funds in Texas" under the caption "Other Information" and the subcaption
"Natural Gas Sale Agreement" under the caption "Discussion of Recent Financial
and Management Events'' in the Official Statement, and such firm is of the opinion
that such descriptions present a fair and accurate summary of the provisions o( the
laws and instruments therein described and, with respect to the Obligations, such
information conforms to the Ordinances; and (c) the Securities are exempt from
registration pursuant to the Securities Act of 1933, as amended, and the Ordinances
are exempt from qualification as an indenture pursuant to the Trust Indenture Act of
1939, as amended;
7
EXHIBIT B
(6) An opinion or opinions of McCall, Parkhurst & Horton L.L.P.,
Underwriters' Counsel addressed to the Underwriters, and dated the date of Closing
in substantially the form attached hereto as Exhibit C;
(7) A certificate or certificates, dated the date of Closing, signed by the
Mayor and Chief Financial Officer 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 Securities, or the levy, collection or application of the ad
valorem taxes and Pledged Revenues pledged or to be pledged to pay the principal
. of and interest on the Securities, or the pledge thereof, or in any way contesting or
affecting the validity of the Securities, the Ordinances, or contesting the powers of
the City or the authorization of the Securities or the Ordinances, 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 Attorney 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 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
the City since September 30, 2003, the latest date as to which audited financial
infonnation is available;
(8) An opinion or opinions 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 or certificates, 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 deli very of the Securities, it is not expected
that the proceeds of the Securities will be used in a manner that would cause the
Securities to be arbitrage Securities within the meaning of Section 148 of the Internal
Revenue Code of 1986, as amended;
( 1 0) Evidence of the rating on the Securities, which shall be "Aaa" by
Moody's Investors Service, Inc. ("Moody's"), "AAA" by Standard and Poor's
Corporation, a division of the McGraw-Hill Companies, Inc. ("S&P"), and "AAA"
by Fitch Ratings ("Fitch"), shall be delivered in a form acceptable to the
Underwriters;
8
EXHIBIT B
(11) A copy of the policy of municipal bond insurance issued by MBIA
Insurance Corporation with respect to the Securities; and
(12) Such additional legal opinions, certificates, instruments and other
documents as Bond Counsel or the Underwriters may reasonably requestto 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 information contained in the Official Statement and the due
performance and satisfaction by the City at or prior to the date of Closing of all
agreements then to be performed 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 Securities 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
Securities shall be terminated for any reason permitted by this Purchase Contract, this Purchase
Contract shall terminate, 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 terminate its obligation to purchase at any time
before the Closing if any ofthe 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 decision shall have been rendered by a court established under Article III 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 Securities 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 Securities 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 Securities.
9
EXHIBIT. B
(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 Securities, or any action shall have
been taken by any c;ourt 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 ofTexas 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 securities (including
the Securities) or the interest thereon, that in the judgment of the Authorized Representative
would materially affect the market price of the Se.curities.
(d) A general suspension oftrading in securities shall have occurred on the New
York Stock Exchange.
(e) There shall have occurred any (i) material outbreak ofhostilities (including,
without limitation, an escalation of hostilities that existed prior to the date nereof or an act
ofterrorism) or (ii) material other national or international calamity or crisis, or any material
adverse change in the financial, political or economic conditions affecting the United States,
the effect of which on U.S. financial markets of such an event described in clauses (i) or (ii)
shall make it, in the reasonable judgment of the Authorized Representative, impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by the
final Official Statement (exclusive of any amendment or supplement thereto).
(f) An event described in Paragraph 6U) hereof occurs that, in the reasonable
judgment 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 Securities.
(g) A general banking moratorium shall have been declared by authorities ofthe
United States, the State ofNew York or the State ofTexas.
(h) A lowering ofthe ratings of"Aaa," "AAA" and "AAA," initially assigned to
the Securities 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
Securities, 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 Securities; (iii) the fees and expenses of Bond Counsel to the City; (iv) the fees and
10
EXHIBIT B
disbursements of the City's accountants, advisors, and of any other experts or consultants retained
by the City; (v) the fees for the bond ratings and any travel or other expenses incurred incident
thereto; and (vi) the premium for municipal bond insurance policy pertaining to the Securities.
(b) The Underwriters shall pay (i) all advertising expenses in connection with the
offering of the Securities; (ii) the cost of the preparation and printing of all the underwriting
documents; and (iii) the fee of McCall, Parkhurst & Horton L.L.P. for such firm's opinion required
by Paragraph 8(e)(6) hereof.
11. Notices. Any notice or other communication to be given to the City under 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 communication to be given to the Underwriters under this
Purchase Contract may be given by delivering the same in writing to A.G. Edwards & Sons, Inc.,
Renaissance Plaza, 70 N.E. Loop 410, Suite 915, San Antonio, Texas 78216, Attn: Nora Chavez.
12. Parties in Interest. This Purchase Contract is made solely for the benefit ofthe 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 behalfofthe Underwriters,
and (ii) delivery of any payment for the Securities 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 termination 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 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 ofTexas.
15. Execution in Counterparts. This Purchase Contract may be executed in any number
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 counterpart.
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 use9. in the interpretation of any provisions of this Contract.
II
EXHIBIT B
17. Status ofthe Underwriters. It is understood and agreed that for all purposes ofthis
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 ofthe Securities. ·
[Signature page follows.]
12
EXHIBIT B
18. Effective Date. This Purchase Contract shall become effective upon the execution
of the acceptance hereofby the Mayor of the City and shall be valid and enforceable as of the time
of such acceptance.
Accepted:
This 27th day of September, 2004
By:
Mayor
City of Lubbock, Texas
Very truly yours,
A.G. Edwards & Sons, Inc.
Estrada Hinojosa & Company, Inc.
By:
By:
A.G. Edwards & Sons, Inc.
Authorized Representative
Name: Nora Chavez
Title: Managing Director
EXHIBIT B
EXHIBIT A
Schedule of Maturities, Interest Rates, Yields and Redemption Provisions
$2,025,000
City of Lubbock, Texas Tax General Obligation Bonds, Series 2004
Maturity Principal Interest Rate Yield
(2/15) Amount (%) (%)
2005 $220,000 5.00% I .55%
2006 70,000 5.00 1.70
2007 70,000 3.00 1.99
2008 75,000 3.00 2.32
2009 75,000 3.00 2.62
2010 80,000. 3.00 2.86
2011 80,000 3.00 3.07
2012 85,000 3.15 3.24
2013 85,000 3.30 3.40
2014 90,000 3.40 3.51
2015 90,000 3.63 3.72
2016 95,000 3.75 3.87
2017 100,000 3.85 3.97
2018 105,000 4.00 4.06
2019 105,000 4.00 4.15
2020 I 10,000 4.13 4.24
202 I I 15,000 4.20 4.33
2022 120,000 4.30 4.42
2023 I 25,000 4.40 4.51
2024 I30,000 4.50 4.59
The City reserves the right, at its option, to redeem Bonds having stated maturities on and after
February 15, 20 I 5, in whole or in part in principal amounts of $5,000 or any integral multiple
thereof, on February 15, 2014, or any date thereafter, at the par value thereof plus accrued interest
to the date of redemption.
A-1 EXHIBIT B
$3,100,000
City of Lubbock, Texas Tax and Water System
·Surplus Revenue Certificates of Obligation, Series 2004
Maturity Principal Interest Rate Yield
{2/15) Amount {%} (%)
2005 $410,000 3.00% 1.55%
2006 105,000 3.00 1.70
2007 105,000 3.00 1.99
2008 110,000 3.00 2.32
2009 115,000 3.00 2.62
2010 115,000 3.00 2.86
2011 120,000 3.00 3.07
2012 125,000 3.15 3.24
2013 125,000 3.30. 3.40
2014 130,000 3.40 3.51
2015 135,000 3.63 3.72
2016 140,000 3.75 3.87
2017 145,000 3.85 3.97
2018 155,000 4.00 4.06
2019 160,000 4.00 4.15
2020 165,000 4.13 4.24
2021 175,000 4.20 4.33
2022 180,000 4.30 4.42
2023 190,000 4.40 4.51
2024 195,000 4.50 4.59
The City reserves the right, at its option, to redeem Certificates having stated maturities on and after
February 15, 2015, in whole or in part in principal amounts of $5,000 or any integral multiple
thereof, on February 15,2014, or any date thereafter, at the par value thereof plus accrued interest
to the date of redemption.
A-2
EXHIBITB
OPINION OF THE CITY ATTORNEY
November_, 2004
A.G. Edwards & Sons, Inc.
Estrada Hinojosa & Company, Inc.
c/o A. G. Edwards & Sons, Inc.
· Renaissance Plaza
70 N.E. Loop 410
Suite 915
San Antonio, Texas 78216
Re: $2,025,000 City of Lubbock, Texas General Obligation Bonds, Series 2004
and
$3,100,000 Tax and Waterworks System Surplus Revenue Certificates of Obligation,
Series 2004
Ladies and Gentlemen:
I am the City Attorney for the City ofLubbock, Texas (the "City") at the time of the issuance
of the above referenced series of Bonds and Certificates of Obligation (collectively, the
"Securities"), pursuant to the provisions of the Ordinances duly adopted by the City Council of the
City on September 28, 2004. Capitalized terms 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, documents,
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 assumed the authenticity of all documents and agreements
submitted to me as originals conformity to the originals of all documents and agreements submitted
to me as certified or photostatic copies, the authenticity ofthe 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 ofTexas in force and effect on the date hereof:
EXHIBIT B
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 ofTexas 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 knowledge after due inquiry, no event has occurred and is continuing
that, with the passage oftime 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, the Securities and the adoption of the Ordinances 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, Joan 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, sale or delivery of any of the Securities, or the levy, collection or application of the
ad valorem taxes and the revenues pledged or to be pledged to pay the principal of and
interest on the Securities; (c) contesting or affecting the validity or enforceability of the
Securities, the Ordinances, or the Purchase Contract; (d) contesting the powers of the City
or any authority for the issuance of the Securities, or the adoption of the Ordinances; or {e)
that would have a material and adverse effect on the financial condition of the City.
3. I have reviewed the infonnation in the Official Statement contained under the caption "Other ·
lnfonnation--Litigation" and such infonnation in all material respects accurately and fairly
summarizes the matters described therein.
This opinion is furnished 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,
B-2
EXHIBIT B
Exhibit C
Proposed Form of Underwriters' Counsel Opinion of
McCall, Parkhurst & Horton L.L.P.
November_, 2004
A.G. Edwards & Sons, Inc.
Estrada Hinojosa & Company, Inc.
c/o A.G. Edwards & Sons, Inc.
Renaissance Plaza
70 N.E. Loop 410
· Suite 915
San Antonio, Texas 78216
Re: $2,025,000 City of Lubbock, Texas General Obligation Bonds, Series 2004
and '
$3,100,000 Tax and Waterworks System Surplus Revenue Certificates of Obligation,
Series 2004
Ladies and Gentlemen:
We have acted as counsel for you as the underwriters of the Bonds and Certificates of
Obligation described above, issued under and pursuant to separate Ordinances of the City of
Lubbock, Texas (the "Issuer"), authorizing the issuance of the Securities, which Securities you are
purchasing pursuant to a Purchase Contract, dated September 28, 2004. All capitalized undefined
terms used herein shall have the meaning set forth in the Purchase Contract.
In connection with this opinion letter, we have considered such matters of law and offact,
and have relied upon such Securities and other information furnished to us, as we have deemed
appropriate as a basis for our opinion set forth below. We are not expressing any opinion or views
herein on the authorization, issuance, delivery, validity of the Securities and we have assumed, but
not independently verified, that the signatures on all documents and Securities that we have
examined are genuine.
Based on and subject to the foregoing, we are of the opinion that, under existing laws, the
Securities are not subject to the registration requirements of the Securities Act of 1933, as amended,
and the Ordinances are not required to be qualified under the Trust Indenture Act of 1939, as
amended.
Because the primary purpose of our professional engagement as your counsel was not to
establish factual matters, and because of the wholly or partially nonlegal character of many of the
C-1
·:~HIBIT B
determinations involved in the preparation of the Official Statement dated September 28, 2004 (the
"Official Statement") and because the information in the Official Statement unde·r the headings
"BOOK-ENTRY ONLY SYSTEM," "TAX MATTERS," "DISCUSSION OF RECENT
FINANCIAL AND MANAGEMENT EVENTS-Natural Gas Sale Agreement," "CONTINUING
DISCLOSURE-Compliance with Prior Undertakings" and Appendices A, B, and C thereto were
prepared by others who have been engaged to review or provide such information, we are not ·
passing on and do not assume any responsibility for, except as set forth in the last sentence of this
paragraph, the accuracy, completeness or fairness of the statements contained in the Official
Statement (including any appendices, schedules and exhibits thereto) and we make no representation
that we have independently verified the accuracy, completeness or fairness of such statements. In
the course of our review of the Official Statement, we had discussions with representatives of the
City regarding the contents of the Official Statement. In the course of our participation in the
preparation of the Official Statement as your counsel, we had discussions with representatives of
the Issuer, including its City Attorney, Bond Counsel and Financial Advisor, regarding the contents
of the Official Statement. In the course of such activities, no facts came to our attention that would
lead us to believe that the Official Statement (except for the financial statements and other financial
and statistical data contained therein, the information set forth under the headings "BOOK-ENTRY
ONLY SYSTEM," "TAX MATTERS," ,;DISCUSSION OF RECENT FINANCIAL AND
MANAGEMENT EVENTS-Natural Gas Sale Agreement," "CONTINUING DISCLOSURE-
Compliance with Prior Undertakings" and Appendices A, B and C thereto, as to which we express
no opinion), as of its date contained any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
We are also of the opinion that the continuing disclosure undertaking of the City, which is
set forth in the Ordinances, satisfies Section (b)( S)(i) of Rule 15c2-12 (the "Rule"), which requires
an undertaking for the benefit of the holders, including beneficial owners, of the Bonds to provide
certain annual financial information and event notices to various information repositories at the time
and in the manner required by the Rule.
This opinion letter may be relied upon by only you and only in connection with the
transaction to which reference is made above and may not be used or relied upon by any other
person for any purposes whatsoever without our prior written consent.
Respectfully,
C-2
EXHIBIT B
Ordinance No. 2004-QOlOS
DESCRIPTION OF ANNUAL FINANCIAL INFORMATION
The following information is referred to in Section 29 of this Ordinance.
Annual Financial Statements and Operating Data
Exhibit C
to
Ordinance
. The financial information and operating data with respect to the City to be provided
annually in accordance with such Section are as specified (and included in the Appendix or
under the headings of the Official Statement referred to} below:
1. The financial statements of the City appended to the Official Statement as
Appendix 8, but for the most recently concluded fiscal year.
2. The information under Tables 1 through 6 and 8 through 15.
Accounting Principles
The accounting principles referred to in such Section are the generally accepted
accounting principles as applicable to governmental units as prescribed by The Government
Accounting Standards Board.
45516599.2 C-1