HomeMy WebLinkAboutORD 09-070 ORDINANCE 09-070 A.8
ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF$29,950,000
THE CITY OF BEAUMONT,TEXAS, CERTIFICATES OF OBLIGATION,SERIES 2009;
LEVYING TAXES TO PROVIDE FOR PAYMENT THEREOF;
AND CONTAINING OTHER MATTERS RELATED THERETO
THE STATE OF TEXAS §
COUNTY OF JEFFERSON §
THE CITY OF BEAUMONT §
WHEREAS, the City Council of The City of Beaumont,Texas (the"City"), has heretofore
authorized the publication of a notice of intention to issue certificates of obligation to the effect that
the City Council would meet on December 1, 2009, the date tentatively set for passage of an
ordinance and such other action as may be deemed necessary to authorize the issuance of
certificates of obligation payable from City ad valorem taxes and a pledge of certain revenues of the
City's waterworks and sewer system, or as soon thereafter as may be practicable, for the purpose of
evidencing the indebtedness of the City for the cost of (1) reconstruction of Cedar Street between
Eleventh Street and the Amtrak Station and construction of adjacent Police Substation and parking
lot; (2) construction of improvements to existing Athletic Complex Tennis Center, including new
clubhouse, tennis courts, lighting, parking, landscaping, bleachers and fencing; (3) design services
for a new Central Fire Station in vicinity of Gulf and Caldwell Streets; (4) improvements to the
Civic Center, including improvements to kitchen, a new warehouse, dock and ticket booth; (5)
expansion of Communications Building, including expansion and additional equipment; (6)
construction of a new Downtown Event Center and Lake Park adjacent to MLK Parkway, Crockett
Street, and Neches Street, including construction of improvements and a two-acre lake; (7)
construction and furnishing of a new downtown library on Crockett Street; (8) construction of a
downtown waterway and infrastructure improvements to connect new Event Center and Lake Park
to Pearl Street, including sidewalks, lighting and amenities; (9) construction of EMS Station No. 2
on Washington Boulevard; (10) relocation and construction of Fire Station No. 2 on Helbig Road
near East Lucas Street; (11) relocation and construction of Fire Station No. 7 on College Street
between Lindberg and Langham, (12) relocation and construction of Fire Station No. 11 on Sabine
Pass Street; (13) construction of a Fleet Fire Maintenance shop facility for the Fire Department at
Lafin Road Fleet Service Center; (14) reconstruction of parking lot for existing Fleet Service
Center; (15) construction of a hiking and biking trail between Delaware Street and Folsom Road;
(16) rehabilitation and improvements to Beaumont Municipal Airport, including work on runways
and aprons and new equipment; (17) interior renovations and new roof and generator for the
existing Municipal Court/911 Dispatch/EOC Building; (18) renovations to Police Department
Property Building to be used for storage and offices; (19) construction of a new Public Health
Complex office building (new site not yet identified) and furnishings and equipment; (20)
acquisition of properties for the Downtown Event Center and Lake Park (see item 6 above) and
demolition of substandard structures; (21) stabilization of bank of existing Riverfront Park and
replacement of lighting and renovations at Park; (22) construction of a new senior citizens' center
to replace existing Best Year's Center; (23) acquisition of a building to house Emergency
Management supplies; (24) construction of a new Transportation Operations Shop at existing Fair
Park site; (25) construction of addition to Tyrrell Historical Library; (26) construction of a new
community center and other improvements at Tyrrell Park; (27) repair and maintenance of walking
trails at various City parks; (28) authorized street and drainage improvements throughout the City;
(29) the cost of professional services incurred in connection with the respective projects; and (30)
costs of issuance of debt and related fees; and
WHEREAS, such notice was published at the times and in the manner required by the
Constitution and the laws of the State of Texas and the United States of America, respectively,
particularly Chapter 271, Texas Local Government Code, as amended; and
WHEREAS, no petition signed by at least five percent (5%) of the qualified voters of the
City has been received by the City Clerk prior to the date of this Ordinance protesting the issuance
of the certificates of obligation; and
WHEREAS, the City Council of the City has determined to authorize such certificates of
obligation for the purposes set out in this Ordinance; and
WHEREAS, the City is authorized, pursuant to Chapter 1502, Texas Government Code, as
amended, to make a limited, junior and subordinate pledge of not more than $10,000 of the net
revenues of the City's waterworks and sewer system as security for the certificates of obligation
authorized herein;
WHEREAS, the Certificates hereinafter authorized shall be issued as current interest
certificates of$29,950,000 as hereinafter provided;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF BEAUMONT,TEXAS:
1. Preamble. The matters and facts contained in the preamble to this Ordinance are
hereby found to be true and correct.
2. Definitions. Throughout this Ordinance, the following terms and expressions as
used herein shall have the meanings set forth below:
The term "Business Day" shall mean any day which is not a Saturday, Sunday, a legal
holiday, or a day on which the Registrar is authorized by law or executive order to close.
The term "Certificates" or "Series 2009 Certificates" shall mean the Certificates of
Obligation, Series 2009, authorized in this Ordinance, unless the context clearly indicates
otherwise, and which shall include $29,950,000 of Current Interest Certificates, as hereinafter
authorized and provided.
The term "Certificates Insurance Policy" shall mean, if a policy is acquired pursuant to the
authorization herein, the municipal bond guaranty insurance policy issued by the Insurer insuring
the payment when due of the principal of and interest on the Certificates as provided therein.
The term "City" shall mean The City of Beaumont,Texas.
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The term "Code" shall mean the Internal Revenue Code of 1986, as amended.
The term "Comptroller" shall mean the Comptroller of Public Accounts of the State of
Texas.
The term "Construction Fund" shall mean the construction fund established by the City
pursuant to Section 19 of this Ordinance.
The term "Current Interest Certificates" shall mean the $29,950,000 of Current Interest
Certificates authorized in Section 5(a)hereof.
The term "DTC" shall mean The Depository Trust Company of New York, New York, or
any successor securities depository.
The term "DTC Participant" shall mean brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations on whose behalf DTC was created to hold
securities to facilitate the clearance and settlement of securities transactions among the DTC
Participants.
The term "Insurer" shall mean the issuer of the Certificates Insurance Policy.
The term "Interest and Sinking Fund" shall mean the interest and sinking fund established
by the City pursuant to Section 19 of this Ordinance.
The term "Interest Payment Date", when used in connection with any Certificate, shall mean
March 1, 2010, and each March 1 and September 1 thereafter until maturity or earlier redemption.
The term"Issuer" shall mean the City.
The term "Net Revenues" shall mean the revenues of the System remaining after deduction
of the reasonable and necessary expenses of operation and maintenance of the System.
The term"Obligations" shall mean the Certificates.
The term "Ordinance" as used herein and in the Certificates shall mean this Ordinance
authorizing the Certificates.
The term "Owner" or 'Registered Owner", when used with respect to any Certificate, shall
mean the person or entity in whose name such Certificate is registered in the Register.
The term 'Paying Agent" shall mean the Registrar.
The term 'Record Date" shall mean, for any Interest Payment Date, the 15th day of the
month next preceding such Interest Payment Date.
The terin 'Register" shall mean the books of registration kept by the Registrar in which are
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maintained the names and addresses of and the principal amounts registered to each Owner.
The term "Registrar" shall mean THE BANK OF NEW YORK MELLON TRUST
COMPANY,N.A., Dallas, Texas, and its successors in that capacity.
The term "SEC" shall mean the United States Securities and Exchange Commission and its
successors.
The term "System" shall mean the City's waterworks and sewer system.
The term "Underwriter" shall mean, collectively, Estrada Hinojosa& Co., Inc., Wells Fargo
Securities, LLC, and Coastal Securities, Inc..
3. Authorization. The Certificates shall be issued in fully registered form, without coupons,
in the total authorized aggregate amount of Twenty-nine Million Nine Hundred Fifty Thousand
and No/100 Dollars ($29,950,000), for the purpose of evidencing the indebtedness of the City for
the cost of (1) reconstruction of Cedar Street between Eleventh Street and the Amtrak Station and
construction of adjacent Police Substation and parking lot; (2) construction of improvements to
existing Athletic Complex Tennis Center, including new clubhouse, tennis courts, lighting, parking,
landscaping, bleachers and fencing; (3) design services for a new Central Fire Station in vicinity of
Gulf and Caldwell Streets; (4) improvements to the Civic Center, including improvements to
kitchen, a new warehouse, dock and ticket booth; (5) expansion of Communications Building,
including expansion and additional equipment; (6) construction of a new Downtown Event Center
and Lake Park adjacent to MLK Parkway, Crockett Street, and Neches Street, including
construction of improvements and a two-acre lake; (7) construction and furnishing of a new
downtown library on Crockett Street; (8) construction of a downtown waterway and infrastructure
improvements to connect new Event Center and Lake Park to Pearl Street, including sidewalks,
lighting and amenities; (9) construction of EMS Station No. 2 on Washington Boulevard; (10)
relocation and construction of Fire Station No. 2 on Helbig Road near East Lucas Street; (11)
relocation and construction of Fire Station No. 7 on College Street between Lindberg and Langham,
(12) relocation and construction of Fire Station No. 11 on Sabine Pass Street; (13) construction of a
Fleet Fire Maintenance shop facility for the Fire Department at Lafin Road Fleet Service Center;
(14) reconstruction of parking lot for existing Fleet Service Center; (15) construction of a hiking
and biking trail between Delaware Street and Folsom Road; (16) rehabilitation and improvements
to Beaumont Municipal Airport, including work on runways and aprons and new equipment; (17)
interior renovations and new roof and generator for the existing Municipal Court/911
Dispatch/EOC Building; (18) renovations to Police Department Property Building to be used for
storage and offices; (19) construction of a new Public Health Complex office building (new site not
yet identified) and furnishings and equipment; (20) acquisition of properties for the Downtown
Event Center and Lake Park (see item 6 above) and demolition of substandard structures; (21)
stabilization of bank of existing Riverfront Park and replacement of lighting and renovations at
Park; (22) construction of a new senior citizens' center to replace existing Best Year's Center; (23)
acquisition of a building to house Emergency Management supplies; (24) construction of a new
Transportation Operations Shop at existing Fair Park site; (25) construction of addition to Tyrrell
Historical Library; (26) construction of a new community center and other improvements at Tyrrell
Park; (27) repair and maintenance of walking trails at various City parks; (28) authorized street and
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drainage improvements throughout the City; (29) the cost of professional services incurred in
connection with the respective projects; and (30) costs of issuance of debt and related fees, which
projects shall be financed with the proceeds of the Certificates in such order of priority as
determined by the City Council of the City.
4. Designation, Date, and Interest Payment Dates. The Certificates shall be designated
as the "THE CITY OF BEAUMONT, TEXAS, CERTIFICATES OF OBLIGATION, SERIES
2009", and shall be dated December 1, 2009. The Current Interest Certificates shall bear interest at
the rates set forth in the schedule in Section 5 below, from the later of December 1, 2009, or the
most recent Interest Payment Date to which interest has been paid or duly provided for, calculated
on the basis of a 360-day year of twelve 30-day months, which interest shall be payable on March 1,
2010, and semiannually thereafter on March 1 and September 1 of each year until maturity or
earlier redemption.
5. Certificates, Numbers and Denominations.
The Current Interest Certificates shall be in the total aggregate principal amount of
$29,950,000 and shall be issued in the principal amounts, and bearing interest at the rates set forth
in the following schedule, shall be numbered from CR-1 and upward, and may be transferred and
exchanged as set out in this Order. The Current Interest Certificates shall mature on March 1 in
each of the years and in the amounts set out in such schedule. Current Interest Certificates
delivered in transfer of or in exchange for other Current Interest Certificates shall be numbered in
order of their authentication by the Registrar, shall be in the denomination of $5,000 or integral
multiples thereof, and shall mature on the same date and bear interest at the same rate as the Current
Interest Certificate or Current Interest Certificates in lieu of which they are delivered.
Certificate Year Principal Interest
Number of Maturity Amount Rate
CR-1 2011
CR-2 2012
CR-3 2013
CR-4 2014 SEE EXHIBIT A
CR-5 2015
CR-6 2016
CR-7 2017
CR-8 2018
CR-9 2019
CR-10 2020
CR-11 2021
CR-12 2022
CR-13 2023
CR-14 2024
CR-15 2025
CR-16 2026
CR-17 2027
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CR-18 2028
CR-19 2029
CR-20 2034
6. Execution of Certificates; Seal. The Certificates shall be signed by the Mayor or
Mayor Pro Tem of the City and countersigned by the City Clerk or Deputy City Clerk of the City,
by their manual, lithographed, or facsimile signatures, and the official seal of the City shall be
impressed or placed in facsimile thereon. Such facsimile signatures on the Certificates shall have
the same effect as if each of the Certificates had been signed manually and in person by each of said
officers, and such facsimile seal on the Certificates shall have the same effect as if the official seal
of the City had been manually impressed upon each of the Certificates. If any officer of the City
whose manual or facsimile signature shall appear on the Certificates shall cease to be such officer
before the authentication of such Certificates or before the delivery of such Certificates, such
manual or facsimile signature shall nevertheless be valid and sufficient for all purposes as if such
officer had remained in such office.
7. Approval by Attorney General; Registration by Comptroller. The Certificates to be
initially issued shall be issued in the name of the Underwriter or Cede & Co., as instructed by the
Underwriter and delivered to the Attorney General of the State of Texas for approval and shall be
registered by the Comptroller of Public Accounts of the State of Texas. The manually executed
registration certificate of the Comptroller of Public Accounts substantially in the form provided in
Section 17 of this Ordinance shall be attached or affixed to the initial Certificates.
8. Authentication. Except for the Certificates to be initially issued, which need not be
authenticated by the Registrar, only Certificates which bear thereon a certificate of authentication,
substantially in the form provided in Section 17 of this Ordinance, manually executed by an
authorized representative of the Registrar, shall be entitled to the benefits of this Ordinance or shall
be valid or obligatory for any purpose. Such duly executed certificate of authentication shall be
conclusive evidence that the Certificates so authenticated were delivered by the Registrar
hereunder.
9. Payment of Principal and Interest. The Registrar is hereby appointed as the paying
agent for the Certificates. The principal of the Certificates shall be payable, without exchange or
collection charges, in any coin or currency of the United States of America which, on the date of
payment, is legal tender for the payment of debts due the United States of America, upon their
presentation and surrender as they become due and payable, at the designated corporate trust office
of the Registrar. The interest on each Certificate shall be payable by check payable on the Interest
Payment Date, mailed by the Registrar on or before each Interest Payment Date to the Owner of
record as of the Record Date,to the address of such Owner as shown on the Register.
If the date for payment of the principal of or interest on any Certificate is not a Business
Day, then the date for such payment shall be the next succeeding Business Day, and payment on
such date shall have the same force and effect as if made on the original date payment was due.
10. Successor Registrars. The City covenants that at all times while any Certificates are
outstanding it will provide a bank, trust company, financial institution or other entity duly qualified
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and duly authorized to act as Registrar for the Certificates. The City reserves the right to change the
Registrar on not less than sixty (60) days' written notice to the Registrar, so long as any such notice
is effective not less than sixty (60) days prior to the next succeeding principal or interest payment
date on the Certificates. Promptly upon the appointment of any successor Registrar, the previous
Registrar shall deliver the Register or copies thereof to the new Registrar, and the new Registrar
shall notify each Owner, by United States mail, first class postage prepaid, of such change and of
the address of the new Registrar. Each Registrar hereunder, by acting in that capacity, shall be
deemed to have agreed to the provisions of this Section.
11. Special Record Date. If interest on any Certificate is not paid on any Interest
Payment Date and continues unpaid for thirty (30) days thereafter, the Registrar shall establish a
new record date for the payment of such interest, to be known as a Special Record Date. The
Registrar shall establish a Special Record Date when funds to make such interest payment are
received from or on behalf of the City. Such Special Record Date shall be fifteen(15) days prior to
the date fixed for payment of such past due interest, and notice of the date of payment and the
Special Record Date shall be sent by United States mail, first class, postage prepaid, not later than
five (5) business days prior to the Special Record Date, to each affected Owner of record as of the
close of business on the day prior to the mailing of such notice.
12. Ownership; Unclaimed Principal and Interest. The City, the Registrar and any other
person may treat the person in whose name any Certificate is registered as the absolute Owner of
such Certificate for the purpose of making payment of principal or interest on such Certificate, and
for all other purposes, whether or not such Certificate is overdue, and neither the City nor the
Registrar shall be bound by any notice or knowledge to the contrary. All payments made to the
person deemed to be the Owner of any Certificate in accordance with this Section 12 shall be valid
and effectual and shall discharge the liability of the City and the Registrar upon such Certificate to
the extent of the sums paid.
Amounts held by the Registrar which represent principal of and interest on the Certificates
remaining unclaimed by the Owner after the expiration of three (3) years from the date such
amounts have become due and payable shall be reported and disposed of by the Registrar in
accordance with the provisions of Texas law, including to the extent applicable, Title 6 of the Texas
Property Code, as amended.
13. Registration, Transfer, and Exchange; Special Election for Uncertificated
Certificates. So long as any Certificates remain outstanding,the Registrar shall keep the Register at
its principal corporate trust office and, subject to such reasonable regulations as it may prescribe,
the Registrar shall provide for the registration and transfer of Certificates in accordance with the
terms of this Ordinance.
Each Certificate shall be transferable only upon the presentation and surrender thereof at the
principal corporate trust office of the Registrar, duly endorsed for transfer, or accompanied by an
assignment duly executed by the registered Owner or his authorized representative in form
satisfactory to the Registrar. Upon due presentation of any Certificate for transfer, the Registrar
shall authenticate and deliver in exchange therefor, within three (3) Business Days after such
presentation, a new Certificate or Certificates, registered in the name of the transferee or
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transferees, in authorized denominations and of the same maturity and aggregate principal amount
and bearing interest at the same rate as the Certificate or Certificates so presented.
All Certificates shall be exchangeable upon presentation and surrender thereof at the
principal corporate trust office of the Registrar for a Certificate or Certificates of the same maturity
and interest rate in any authorized denomination, in an aggregate principal amount equal to the
unpaid principal amount of the Certificate or Certificates presented for exchange. The Registrar
shall be and is hereby authorized to authenticate and deliver exchange Certificates in accordance
with the provisions of this Section 13. Each Certificate delivered in accordance with this Section
13 shall be entitled to the benefits and security of this Ordinance to the same extent as the
Certificate or Certificates in lieu of which such Certificate is delivered.
The City or the Registrar may require the Owner of any Certificate to pay a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with the transfer
or exchange of such Certificate. Any fee or charge of the Registrar for such transfer or exchange
shall be paid by the City.
Neither the City nor the Registrar shall be required to transfer or exchange any Certificate
called for redemption, in whole or in part, within forty-five (45) days of the date fixed for
redemption; provided, however, such limitation on transfer shall not be applicable to an exchange
by the Owner of the unredeemed balance of a Certificate called for redemption in part.
Notwithstanding any other provision hereof, upon initial issuance of the Certificates, the
ownership of the Certificates shall be registered in the name of Cede & Co., as nominee of DTC.
The definitive Certificates shall be initially issued in the form of a single separate certificate for
each of the maturities thereof.
With respect to Certificates registered in the name of Cede & Co., as nominee of DTC, the
City and the Registrar shall have no responsibility or obligation to any DTC Participant or to any
person on behalf of whom such a DTC Participant holds an interest in the Certificates. Without
limiting the immediately preceding sentence, the City and the Registrar shall have no responsibility
or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC
Participant with respect to any ownership interest in the Certificates, (ii) the delivery to any DTC
Participant or any other person, other than an Owner of a Certificate, as shown on the Register, of
any notice with respect to the Certificates, including any notice of redemption, or (iii) the payment
to any DTC Participant or any other person, other than an Owner of a Certificate, as shown in the
Register, of any amount with respect to principal of, premium, if any, or interest on the Certificates.
Notwithstanding any other provision of this Ordinance to the contrary, the City and the Registrar
shall be entitled to treat and consider the person in whose name each Certificate is registered in the
Register as the absolute Owner of such Certificate for the purpose of payment of principal of,
premium, if any, and interest on the Certificates, for the purpose of all matters with respect to such
Certificates, for the purpose of registering transfers with respect to such Certificates, and for all
other purposes whatsoever. The Registrar shall pay all principal of, premium, if any, and interest
on the Certificates only to or upon the order of the respective Owners, as shown in the Register as
provided in this Ordinance, or their respective attorneys duly authorized in writing, and all such
payments shall be valid and effective to fully satisfy and discharge the City's obligations with
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respect to payment of principal of, premium, if any, and interest on the Certificates to the extent of
the sum or sums so paid. No person other than an Owner as shown in the Register, shall receive a
certificate for a Certificate evidencing the obligation of the City to make payments of amounts due
pursuant to this Ordinance. Upon delivery by DTC to the Registrar of written notice to the effect
that DTC has determined to substitute a new nominee in place of Cede & Co., the word "Cede &
Co." in this Ordinance shall refer to such new nominee of DTC.
In the event that the City or the Registrar determines that DTC is incapable of discharging
its responsibilities described herein and in the letter of representation of the City to DTC and that it
is in the best interest of the beneficial Owners of the Certificates that they be able to obtain
certificated Certificates, or if DTC Participants owning at least 50% of the Certificates outstanding
based on current records of the DTC determine that continuation of the system of book-entry
transfers through the DTC (or a successor securities depository) is not in the best interest of such
beneficial Owners of the Certificates, or in the event DTC discontinues the services described
herein, the City or the Registrar shall (i) appoint a successor securities depository, qualified to act as
such under Section 17(a) of the Securities and Exchange Act of 1934, as amended, and notify DTC
of the appointment of such successor securities depository and transfer one or more separate
Certificates to such successor securities depository or (ii) notify DTC of the availability through
DTC of Certificates and transfer one or more separate Certificates to DTC Participants having
Certificates credited to their DTC accounts. In such event, the Certificates shall no longer be
restricted to being registered in the Register in the name of Cede & Co., as nominee of DTC, but
may be registered in the name of the successor securities depository, or its nominee, or in whatever
name or names Owners transferring or exchanging Certificates shall designate, in accordance with
the provisions of this Ordinance.
Notwithstanding any other provision of this Ordinance to the contrary, so long as any
Certificates are registered in the name of Cede & Co., as nominee of DTC, all payments with
respect to principal of, premium, if any, and interest on the Certificates, and all notices with respect
thereto, shall be made and given in the manner provided in the Letter of Representation.
14. Mutilated. Lost, or Stolen Certificates. Upon the presentation and surrender to the
Registrar of a mutilated Certificate, the Registrar shall authenticate and deliver in exchange therefor
a replacement Certificate of like maturity, interest rate and principal amount, bearing a number not
contemporaneously outstanding. If any Certificate is lost, apparently destroyed, or wrongfully
taken, the City, pursuant to the applicable laws of the State of Texas and in the absence of notice or
knowledge that such Certificate has been acquired by a bona fide purchaser, shall execute and the
Registrar shall authenticate and deliver a replacement Certificate of like amount, bearing a number
not contemporaneously outstanding.
The City or the Registrar may require the Owner of a mutilated Certificate to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection
therewith and any other associated expenses, including the fees and expenses of the Registrar.
The City or the Registrar may require the Owner of a lost, apparently destroyed or
wrongfully taken Certificate, before any replacement Certificate is issued, to:
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(1) furnish to the City and the Registrar satisfactory evidence of the ownership
of and the circumstances of the loss, destruction or theft of such Certificate;
(2) furnish such security or indemnity as may be required by the Registrar and
the City to save them harmless;
(3) pay all expenses and charges in connection therewith, including, but not
limited to, printing costs, legal fees, fees of the Registrar and any tax or other governmental
charge that may be imposed; and
(4) meet any other reasonable requirements of the City and the Registrar.
If, after the delivery of such replacement Certificate, a bona fide purchaser of the original
Certificate in lieu of which such replacement Certificate was issued presents for payment such
original Certificate, the City and the Registrar shall be entitled to recover such replacement
Certificate from the person to whom it was delivered or any person taking therefrom, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the City or the Registrar in connection
therewith.
If any such mutilated, lost, apparently destroyed or wrongfully taken Certificate has become
or is about to become due and payable, the City in its discretion may, instead of issuing a
replacement Certificate, authorize the Registrar to pay such Certificate.
Each replacement Certificate delivered in accordance with this Section 14 shall be entitled
to the benefits and security of this Ordinance to the same extent as the Certificate or Certificates in
lieu of which such replacement Certificate is delivered.
15. Cancellation of Certificates. All Certificates paid in accordance with this
Ordinance, and all Certificates in lieu of which exchange Certificates or replacement Certificates
are authenticated and delivered in accordance herewith, shall be cancelled and destroyed upon the
making of proper records regarding such payment. The Registrar shall furnish the City with
appropriate certificates of destruction of such Certificates.
16. Optional and Mandatory Redemption; Defeasance.
(a) The City reserves the right, at its option, to redeem Current Interest Certificates
having stated maturities on and after March 1, 2020, in whole or in part, on March 1, 2019, or any
date thereafter, at a price of par plus accrued interest to the date fixed for redemption. If less than
all of the Certificates are to be redeemed, the City shall determine the Certificates, or portions
thereof, to be redeemed.
The Current Interest Certificates maturing in the year 2034 (the "Term Certificates") are
also subject to mandatory redemption prior to scheduled maturity, in the amount, on the date, and
on the terms set out in the form of Certificates in this Ordinance, at a price of par plus accrued
interest to the date fixed for redemption.
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Certificates may be redeemed only in integral multiples of$5,000. If a Certificate subject to
redemption is in a denomination larger that $5,000, a portion of such Certificate may be redeemed,
but only in integral multiples of$5,000. Upon surrender of any Certificate for redemption in part,
the Registrar, in accordance with Section 13 hereof, shall authenticate and deliver in exchange
therefor a Certificate or Certificates of like maturity and interest rate in an aggregate principal
amount equal to the unredeemed portion of the Certificate so surrendered.
Not less than thirty (30) days prior to a redemption date for the Certificates, the City shall
cause a notice of redemption to be sent by United States mail, first class, postage prepaid, to each
Owner of each Certificate to be redeemed in whole or in part, at the address of the Owner appearing
on the Register at the close of business on the Business Day next preceding the date of the mailing
of such notice. Such notice shall state the redemption date, the redemption price, the place at which
Certificates are to be surrendered for payment and, if less than all the Certificates are to be
redeemed, the numbers of the Certificates or portions thereof to be redeemed. Any notice of
redemption so mailed shall be conclusively presumed to have been duly given whether or not the
Owner receives such notice. By the date fixed for redemption, due provision shall be made with the
Registrar for payment of the redemption price of the Certificates or portions thereof to be redeemed.
When Certificates have been called for redemption in whole or in part and due provision made to
redeem the same as herein provided, the Certificates or portions thereof so redeemed shall no
longer be regarded as outstanding except for the purpose of being paid solely from the funds so
provided for redemption, and the rights of the Owners to collect interest which would otherwise
accrue after the redemption date on any Certificate or portion thereof called for redemption shall
terminate on the date fixed for redemption.
(b) The City may defease the provisions of this Ordinance and discharge its obligation
to the Owners of any or all of the Certificates to pay principal, interest and redemption premium, if
any, thereon in any manner permitted by law, including by depositing with the Paying
Agent/Registrar, or if authorized by Texas law, with any national or state bank having trust powers
and having combined capital and surplus of at least $50 million, or with the State Treasurer of the
State of Texas either: (a) cash in an amount equal to the principal amount and redemption premium,
if any, of such Series 2009 Certificates plus interest thereon to the date of maturity or redemption;
or (b) pursuant to an escrow or trust agreement, cash and/or direct obligations of, or obligations the
principal of and interest on which are guaranteed by or secured by the pledge of direct obligations
of the United States of America, in principal amounts and maturities and bearing interest at rates
sufficient to provide for the timely payment of the principal amount and redemption premium, if
any, of such Certificates plus interest thereon to the date of maturity or redemption; provided,
however, that if any of such Series 2009 Certificates are to be redeemed prior to their respective
dates of maturity, provision shall have been made for giving notice of redemption as provided in
this Ordinance. Upon such deposit, such Certificates shall no longer be regarded to be Outstanding
or unpaid. Any surplus amounts not required to accomplish such defeasance shall be returned to
the City. Notwithstanding anything herein to the contrary, in the event that the principal and/or
interest due on the Certificates shall be paid by Insurer pursuant to the Insurance Policy, the
Certificates shall remain outstanding for all purposes, not be defeased or otherwise satisfied and not
be considered paid by the City, and the assignment and limited pledge of the Net Revenues and all
covenants, agreements and obligations of the City to the registered owners shall continue to exist
- 11 -
and shall run to the benefit of Insurer, and Insurer shall be subrogated to the rights of such
registered owners.
17. Forms.
The form of the Current Interest Certificates, including the form of the Registrar's
Authentication Certificate, the form of Assignment, and the form of Registration Certificate of the
Comptroller of Public Accounts of the State of Texas which shall be attached or affixed to the
Certificates initially issued shall be, respectively, substantially as follows, with such additions,
deletions and variations as may be necessary or desirable and not prohibited by this Ordinance:
FORM OF CURRENT INTEREST CERTIFICATE
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTY OF JEFFERSON
NUMBER DENOMINATION
CR-
REGISTERED REGISTERED
THE CITY OF BEAUMONT, TEXAS
CERTIFICATE OF OBLIGATION
SERIES 2009
INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP:
December 1, 2009
REGISTERED OWNER:
PRINCIPAL AMOUNT: DOLLARS
THE CITY OF BEAUMONT, TEXAS (the "City"), promises to pay to the registered owner
identified above, or registered assigns, on the date specified above, upon presentation and surrender
of this certificate at the designated corporate trust office of THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A., Dallas, Texas (the "Registrar"), or at its principal payment
office in Dallas, Texas, the principal amount identified above, payable in any coin or currency of
the United States of America which on the date of payment of such principal is legal tender for the
payment of debts due the United States of America, and to pay interest thereon at the rate shown
above, calculated on the basis of a 360-day year of twelve 30-day months, from the later of the
Dated Date specified above, or the most recent interest payment date to which interest has been
paid or duly provided for. Interest on this Certificate is payable by check on March 1, 2010, and
semiannually thereafter on each March 1 and September 1, mailed to the registered owner as shown
on the books of registration kept by the Registrar as of the 15th day of the month next preceding
each interest payment date.
- 12 -
THIS CERTIFICATE is one of a duly authorized issue of Certificates of Obligation, that
includes Current Interest Certificates, aggregating $29,950,000 (the "Certificates"), issued in
accordance with the Constitution and the laws of the State of Texas, particularly Chapter 271,
Texas Local Government Code, as amended, for the cost of constriction of authorized street,
drainage, building, park and other capital improvements, the purchase of equipment and the cost of
issuance of the Certificates, pursuant to an ordinance duly adopted by the City Council of the City
on December 1, 2009 (the "Ordinance"), which Ordinance is of record in the official minutes of the
City Council. This Certificate is part of the Current Interest Certificates authorized by the City.
THE CITY RESERVES THE RIGHT, at its option, to redeem the Current Interest
Certificates having stated maturities on or after March 1, 2020, in whole or in part, on March 1,
2019, or any date thereafter, in integral multiples of$5,000, at a price of par plus accrued interest to
the date fixed for redemption. Reference is made to the Ordinance for complete details concerning
the manner of redeeming the Certificates.
THE CERTIFICATES maturing in the year 2034 (the "Term Certificates") are also subject
to mandatory redemption prior to maturity in the amounts and on the dates set out below, at a price
equal to the principal amount to be redeemed plus accrued interest to the redemption date:
TERM CERTIFICATES DUE MARCH 1, 2034
Date Amount
3/01/2030 $1,700,000
3/01/2031 1,735,000
3/01/2032 1,820,000
3/01/2033 1,910,000
3/01/2034 (maturity) 2,000,000
The Paying Agent shall select for redemption by lot, or by any other customary method that
results in random selection, a principal amount of Term Certificates equal to the aggregate principal
amount of such Term Certificates to be redeemed, shall call such Term Certificates for redemption
on the scheduled mandatory redemption date, and shall give notice of such redemption in
accordance with the Ordinance authorizing the Certificates. The principal amount of Term
Certificates required to be mandatorily redeemed shall be reduced by the principal amount of Term
Certificates which, at least 45 days prior to the mandatory redemption date, shall have been
delivered to the Registrar for cancellation or shall have been optionally redeemed and not
previously credited against a mandatory redemption requirement.
NOTICE OF ANY REDEMPTION shall be given at least thirty (30) days prior the date
fixed for redemption by first class mail, addressed to the registered owner of each Certificate to be
redeemed in whole or in part at the address shown on the books of registration kept by the
Registrar. When Certificates or portions thereof have been called for redemption and due provision
has been made to redeem the same, the principal amounts so redeemed shall be payable solely from
the funds provided for redemption and interest which would otherwise accrue on the amounts
- 13 -
called for redemption shall terminate on the date fixed for redemption.
The Certificates may be defeased as provided in the Ordinance authorizing the Certificates.
THIS CERTIFICATE is transferable only upon presentation and surrender at the principal
corporate trust office of the Registrar, duly endorsed for transfer or accompanied by an assignment
duly executed by the registered owner or his authorized representative, subject to the terms and
conditions of the Ordinance.
THE CERTIFICATES are exchangeable at the principal corporate trust office of the
Registrar for Certificates in the principal amount of$5,000 or any integral multiple thereof, subject
to the terms and conditions of this Ordinance.
NEITHER THE CITY NOR THE REGISTRAR shall be required to transfer or exchange
any Certificate called for redemption, in whole or in part, within forty-five (45) days of the date
fixed for redemption; provided, however, such limitation on transfer shall not be applicable to an
exchange by the Owner of the unredeemed balance of a Certificate called for redemption in part.
THIS CERTIFICATE shall not be valid or obligatory for any purpose or be entitled to any
benefit under the Ordinance unless this Certificate either (i) is registered by the Comptroller of
Public Accounts of the State of Texas by registration certificate attached or affixed hereto or (ii)
authenticated by the Registrar by due execution of the authentication certificate endorsed hereon.
THE REGISTERED OWNER of this Certificate, by acceptance hereof, acknowledges and
agrees to be bound by all the terms and conditions of the Ordinance.
THE CITY has covenanted in the Ordinance that it will at all times provide a legally
qualified registrar for the Certificates and will cause notice of any change of registrar to be mailed
to each registered owner.
IT IS HEREBY certified, recited and covenanted that this Certificate has been duly and
validly issued and delivered; that all acts, conditions and things required or proper to be performed,
to exist and to be done precedent to or in the issuance and delivery of this Certificate have been
performed, exist and have been done in accordance with law; and that annual ad valorem taxes
sufficient to provide for the payment of the interest on and principal of this Certificate, as such
interest comes due and such principal matures, have been levied, within the limits prescribed by
law, against all taxable property in the City, and have been pledged irrevocably for such payment.
IT IS FURTHER certified, recited and represented that the net revenues (the "Net
Revenues") to be derived from the operation of the City's waterworks and sewer system (the
"System"), but only to the extent of and in an amount not to exceed Ten Thousand Dollars
($10,000.00) in the aggregate, are also pledged to the payment of the principal of and interest on
this Certificate and the series of Certificates of which it is a part to the extent that taxes may ever be
insufficient or unavailable for said purpose, all as set forth in the Ordinance to which reference is
made for all particulars; provided, however, that such pledge of Net Revenues is and shall be junior
and subordinate in all respects to the pledge of such Net Revenues to the payment of any obligation
- 14 -
of the City, whether authorized heretofore or hereafter, which the City designates as having a
pledge senior to the pledge of such Net Revenues to the payment of this Certificate and that series
of Certificates of which it is a part, and the City also reserves the right to issue, for any lawful
purpose at any time, in one or more installments, bonds, certificates of obligation and other
obligations of any kind payable in whole or in part from the Net Revenues of the System, secured
by a pledge of the Net Revenues of the System that may be prior and superior in right to, on a parity
with, or junior and subordinate to the pledge of Net Revenues securing this Certificate and the
series of Certificates of which it is a part.
IN WITNESS WHEREOF, this Certificate has been signed with the manual or facsimile
signature of the Mayor of the City and countersigned with the manual or facsimile signature of the
City Clerk of the City and the official seal of the City has been duly impressed, or placed in
facsimile, on this Certificate.
TH CITY OF BEAUMONT,TEXAS
�10
AMayor
1, G�
1, City Clerk
FORM OF REGISTRATION CERTIFICATE
OF COMPTROLLER OF PUBLIC ACCOUNTS
COMPTROLLER'S REGISTRATION CERTIFICATE: REGISTER NO.
I hereby certify that this certificate has been examined, certified as to validity, and approved
by the Attorney General of the State of Texas, and that this certificate has been registered by the
Comptroller of Public Accounts of the State of Texas. i
WITNESS MY SIGNATURE AND SEAL this 14 day of - - " ' b .(2009.
xxxxxxxx
Comptroller of Public Accounts
(Seal) of the State of Texas
FORM OF REGISTRAR'S AUTHENTICATION CERTIFICATE
AUTHENTICATION CERTIFICATE
It is hereby certified that this Certificate has been delivered pursuant to the Ordinance
described in the text of this Certificate.
- 15 -
The Bank of New York Mellon Trust Company, N.A.
Dallas, Texas
By:
Authorized Signature
Date of Authentication:
FORM OF ASSIGNMENT
ASSIGNMENT
For value received, the undersigned hereby sells, assigns, and transfers unto
(Please print or type name, address, and zip code of Transferee)
(Please insert Social Security or Taxpayer Identification Number of Transferee)
the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer said certificate on the books kept for registration thereof, with full power of
substitution in the premises.
DATED:
Signature Guaranteed:
NOTICE: The signature
above must correspond to
the name of the registered
NOTICE: Signature must be owner as shown on the face
guaranteed by a member firm of this Certificate in
of the New York Stock Exchange every particular, without
or a commercial bank or trust any alteration, enlargement
company. or change whatsoever.
FORM OF STATEMENT OF INSURANCE
STATEMENT OF INSURANCE
Assured Guaranty Municipal Corp. (formerly known as Financial Security Assurance,
Inc.) ("AGM"), New York, New York, (the "Insurer"), has delivered its municipal bond
- 16 -
insurance policy (the "Policy") with respect to the scheduled payments of principal of and
interest on this Certificate to The Bank of New York Mellon Trust Company, N.A., as paying
agent on behalf of the holders of the Certificates (the "Paying Agent"). Such Policy is on file and
available for inspection at the principal office of the Paying Agent and a copy thereof may be
obtained from AGM or the Paying Agent. All payments required to be made under the Policy
shall be made in accordance with the provisions thereof. The owner of this Certificate
acknowledges and consents to the subrogation rights of AGM as more fully set forth in the
Policy.
END OF FORM OF CURRENT INTEREST CERTIFICATE
18. Legal Opinion; Cusip Numbers. The approving opinion of Orgain Bell &Tucker, LLP,
Beaumont, Texas, Bond Counsel, and CUSIP Numbers may be printed on the Certificates, but
errors or omissions in the printing of such opinion or such numbers shall have no effect on the
validity of the Certificates.
19. Interest and Sinking Fund; Tax Levy; Pledge of Revenues; Construction Fund. The
proceeds from all taxes levied, assessed and collected for and on account of the Certificates
authorized by this Ordinance are hereby irrevocably pledged and shall be deposited, as collected, in
a special fund to be designated "City of Beaumont, Texas, Certificates of Obligation, Series 2009,
Interest and Sinking Fund". While the Certificates or any part of the principal thereof or interest
thereon remain outstanding and unpaid, there is hereby levied and there shall be annually levied,
assessed and collected in due time, form and manner within the limits prescribed by law, and at the
same time other City taxes are levied, assessed and collected, in each year, beginning with the
current year, a continuing direct annual ad valorem tax upon all taxable property in the City
sufficient to pay the current interest on the Certificates as the same becomes due, and to provide and
maintain a sinking fiend adequate to pay each installment of the principal of the Certificates as the
same matures but in each year never less than 2% of the original principal of the Certificates, full
allowance being made for delinquencies and costs of collection, and said taxes when collected shall
be applied to the payment of the interest on and principal of the Certificates and to no other
purpose. To pay the interest coming due on the Certificates on March 1, 2010 and September 1,
2010, there is hereby appropriated from current funds on hand, which are certified to be on hand
and available for such purpose, an amount sufficient to pay such interest, and such amount shall be
used for no other purpose.
The Net Revenues of the System, but only to the extent of and in an amount not to exceed
$10,000 in the aggregate, are hereby irrevocably pledged to the payment of the principal of and
interest on the Certificates as the same come due; provided, however, that such pledge of Net
Revenues is and shall be junior and subordinate in all respects to the pledge of the Net Revenues to
the payment of any obligation of the City, whether authorized heretofore or hereafter, which the
City designates as having a pledge senior to the pledge of such Net Revenues to the payment of the
Certificates; and the City also reserves the right to issue, for any lawful purpose at any time, in one
or more installments, bonds, certificates of obligation and other obligations of any kind payable in
whole or in part from the Net Revenues of the System that may be prior and superior in right to, on
a parity with, or junior and subordinate to the pledge of Net Revenues securing this series of
- 17 -
Certificates.
There is hereby created and there shall be established on the books of the City a separate
account to be entitled the "City of Beaumont, Texas, Certificates of Obligation, Series 2009,
Constriction Fund". Immediately after the sale and delivery of the Certificates, that portion of the
proceeds of the Certificates to be used for the cost of construction of authorized projects and the
cost of issuance of the Certificates shall be deposited into the Construction Fund and disbursed for
such purposes. Pending completion of constriction of such projects, interest earned on such
proceeds may be used, at the City's discretion, for such projects and shall be accounted for,
maintained, deposited and expended as permitted by the provisions of Section 1201.043, Texas
Government Code Annotated, as from time to time in effect, or as otherwise required by applicable
law. Thereafter, such interest shall be deposited in the Interest and Sinking Fund. Upon
completion of such projects, the monies, if any, remaining in the Construction Fund shall be
transferred and deposited by the City into the Interest and Sinking Fund.
IT IS ORDERED AND DIRECTED that this Ordinance pledging ad valorem tax revenue
of the City and limited net revenues of the System for the payment of the Certificates to the extent
provided herein be filed and recorded in the records of the City as necessary to cause the pledge to
be valid under Section 1201.44 of the Government Code of Texas. At any time while any of the
Certificates are outstanding, it is determined by the City or demanded by the holder of any
Certificates that further action by the City is required to make the pledge valid or maintain the
validity of the pledge, the City covenants and hereby directs the officers of the City to make such
filings, including but not limited to appropriate filings under Chapter 9 of the Business and
Commerce Code of Texas as are necessary to make the pledge valid or continue its validity.
20. Further Proceedings. After the Certificates shall have been executed, it shall be the
duty of the Mayor of the City to deliver the Certificates to be initially issued and all pertinent
records and proceedings to the Attorney General of the State of Texas for examination and
approval. After the Certificates to be initially issued shall have been approved by the Attorney
General of the State of Texas, the Certificates shall be delivered to the Comptroller of Public
Accounts of the State of Texas for registration. Upon registration of the Certificates to be initially
issued, the Comptroller of Public Accounts (or a deputy lawfully designated in writing to act for the
Comptroller) shall manually sign the Comptroller's Registration Certificate prescribed herein to be
affixed or attached to the Certificates to be initially issued, and the seal of the Comptroller shall be
impressed, or placed in facsimile, thereon. In addition, the Mayor, the Mayor Pro Tem, the City
Clerk, the City Manager and other appropriate officials of the City are hereby authorized and
directed to do any and all things necessary or convenient to carry out the purposes of this
Ordinance, and each of such persons are authorized, acting alone and without the joinder of the
others, to execute any and all closing certificates, instruments and such other documents as may be
necessary or appropriate to carry out the purposes of this Ordinance.
21. Sale of Certificates. The Certificates are hereby sold and shall be delivered to the
Underwriter at a price of$29,811,273.95, which represents the par amount of the Certificates of
$29,950,000.00, less a net original issue discount on certain Current Interest Certificates of
$202,754.60, plus a premium on certain Current Interest Certificates of$251,216.05, and less an
underwriting discount of $187,187.50, plus any accrued interest thereon from the dated date of
- 18 -
the Certificates to the date of issuance, all in accordance with the terms of a certificate of
obligation purchase agreement of even date herewith, presented to and hereby approved by the
City Council, which price and terms are hereby found and determined to be the most
advantageous reasonably obtainable by the City. Each of the Mayor and the Mayor Pro Tern and
other appropriate officials of the City are hereby authorized and directed to execute such
certificates of obligation purchase agreement on behalf of the City, and each of the Mayor and
Mayor Pro Tern and all other officers, agents and representatives of the City are hereby
authorized to do any and all things necessary or desirable to satisfy the conditions set out therein
and to provide for the issuance and delivery of the Certificates. The purchase of and payment of
the premium for the Certificates Insurance Policy by the City, in accordance with the terms of a
commitment for such insurance presented to and hereby approved by the City Council is hereby
authorized. All officials and representatives of the City are authorized and directed to execute
such documents and to do any and all things necessary or desirable to obtain such insurance, and
the printing on the Certificates of an appropriate legend regarding such insurance is hereby
approved.
The City finds that the net effective interest of the Certificates is 4.331257%.
22. Tax Exemption. (a) The City intends that the interest on the Certificates shall be
excludable from gross income for purposes of federal income taxation pursuant to Sections 103 and
141 through 150 of the Code, and applicable regulations. The City covenants and agrees not to take
any action, or knowingly omit to take any action within its control, that if taken or omitted,
respectively, would cause the interest on the Certificates to be includable in gross income, as
defined in Section 61 of the Code, of the holders thereof for purposes of federal income taxation. In
particular, the City covenants and agrees to comply with each requirement of this Section 22;
provided, however, that the City shall not be required to comply with any particular requirement of
this Section 22 if the City has received an opinion of nationally recognized bond counsel (a
"Counsel's Opinion") that such noncompliance will not adversely affect the exclusion from gross
income for federal income tax purposes of interest on the Certificates or if the City has received a
Counsel's Opinion to the effect that compliance with some other requirement set forth in this
Section 22 will satisfy the applicable requirements of the Code, in which case compliance with such
other requirement specified in such Counsel's Opinion shall constitute compliance with the
corresponding requirement specified in this Section 22.
(b) The City covenants and agrees that its use of Net Proceeds (as defined below)of the
Certificates will at all times satisfy the following requirements:
(1) The City will use all of the Net Proceeds of the Certificates for the cost of
construction of authorized street, drainage, building, park, and other capital improvements,
equipment purchases and the cost of issuance of the Certificates. The City has limited and
will limit with respect to the Certificates the amount of original or investment proceeds
thereof to be used(other than use as a member of the general public) in the trade or business
of any person other than a governmental unit to an amount aggregating no more than 10%
of the Net Proceeds of the Certificates ("private-use proceeds"). For purposes of this
Section, the term "person" includes any individual, corporation, partnership, unincorporated
association, or any other entity capable of carrying on a trade or business; and the term
- 19 -
"trade or business" means, with respect to any natural person, any activity regularly carried
on for profit and, with respect to persons other than natural persons, any activity other than
an activity carried on by a governmental unit. Any use of proceeds of the Certificates in any
manner contrary to the guidelines set forth in Revenue Procedure 93-19, including any
revisions or amendments thereto, shall constitute the use of such proceeds in the trade or
business of one who is not a governmental unit;
(ii) The City has not permitted and will not permit more than 5% of the Net
Proceeds of the Certificates to be used in the trade or business of any person other than a
governmental unit if such use is unrelated to the governmental purpose of the Certificates.
Further, the amount of private-use proceeds of the Certificates in excess of 5% of the Net
Proceeds thereof("excess private-use proceeds")did not and will not exceed the proceeds of
the Certificates expended for the governmental purpose of the Certificates to which such
excess private-use proceeds relate;
(iii) Principal of and interest on the Certificates shall be paid solely from ad
valorem tax receipts collected by the City and from the Net Revenues of the System to the
extent pledged hereunder. Further, no person using more than 10% of the Net Proceeds of
the Certificates in a trade or business, other than a governmental unit, has made or shall
make payments (other than as a member of the general public), directly or indirectly,
accounting for more than 10% of such receipts;
(iv) The City has not permitted and will not permit with respect to the Certificates
an amount of proceeds thereof exceeding the lesser of (a) $5,000,000 or (b) 5% of the Net
Proceeds of the Certificates to be used, directly or indirectly, to finance loans to persons
other than a governmental unit; and
(v) The City will use $271,205.07 of the Net Proceeds of the Certificates to pay
the costs of issuance of the Certificates, including the cost of the Certificates Insurance
Policy in the amount of$151,705.07.
When used in this Section, the term 'Net Proceeds" of the Certificates shall mean the proceeds from
the sale thereof to the Underwriter, including investment earnings on such proceeds, less accrued
interest with respect to such issue.
(c) The City covenants and agrees not to take any action, or knowingly omit to take any
action within its control, that, if taken or omitted, respectively, would cause the Certificates to be
"federally guaranteed" within the meaning of Section 149(b) of the Code and applicable regulations
thereunder, except as permitted by Section 149(b)(3) of the Code and such regulations or as
permitted by laws hereinafter enacted.
(d) The City shall certify, through an authorized officer, employee or agent, that based
upon all facts and estimates known or reasonably expected to be in existence on the date the
Certificates are delivered, the City will reasonably expect that the proceeds of the Certificates will
not be used in a manner that would cause the Certificates to be "arbitrage bonds" within the
meaning of Section 148(a) of the Code and applicable regulations thereunder. Moreover, the City
- 20 -
covenants and agrees that it will make such use of the proceeds of the Certificates, including
interest or other investment income derived from the proceeds of the Certificates, regulate
investments of such proceeds and amounts, and take such other and further action as may be
required so that the Certificates will not be "arbitrage bonds" within the meaning of Section 148(a)
of the Code and applicable regulations thereunder.
(e) The City will take all necessary steps to comply with the requirement that certain
amounts earned by the City on the investment of the "gross proceeds" of the Certificates (within the
meaning of Section 148(f)(6)(B) of the Code), be rebated to the federal government. Specifically,
the City will (i) maintain records regarding the investment of the gross proceeds of the Certificates
as may be required to calculate the amount earned on the investment of the gross proceeds of the
Certificates separately from records of amounts on deposit in the funds and accounts of the City
allocable to other bond issues of the City or moneys which do not represent gross proceeds of any
bonds of the City, (ii) calculate at such times as are required by applicable regulations, the amount
earned from the investment of the gross proceeds of the Certificates which is required to be rebated
to the federal government, and (iii) pay, not less often than every 5th anniversary date of the
delivery of the Certificates, and within sixty (60) days after retirement of the Certificates, all
amounts required to be rebated to the federal government. Further, the City will not indirectly pay
any amount otherwise payable to the federal government pursuant to the foregoing requirements to
any person other than the federal government by entering into any investment arrangement with
respect to the gross proceeds of the Certificates that might result in a reduction in the amount
required to be paid to the federal government because such arrangement results in a smaller profit
or larger loss than would have resulted if the arrangement had been at arm's length and had the yield
on the issue not been relevant to either party.
(f) The City covenants and agrees to file or cause to be filed with the Secretary of the
Treasury, not later than the 15th day of the second calendar month after the close of the calendar
quarter in which the Certificates are issued, an information statement concerning the Certificates,
all under and in accordance with Section 149(e)of the Code and applicable regulations thereunder.
23. Application of Proceeds. Proceeds from the sale of the Certificates shall, promptly
upon receipt by the City,be applied as follows:
(a) Accrued interest received from the sale of the Certificates shall be deposited into the
Series 2009 Certificates of Obligation Interest and Sinking Fund;
(b) The sum of $151,705.07 will be used to pay the premium for the Certificates
Insurance Policy;
(c) The sum of $119,500.00 shall be used to pay costs of issuance of the Certificates,
with any amount left over to be transferred to the 2009 Certificates of Obligation
Construction Fund; and
i
(d) The remaining proceeds from the sale of the Certificates, together with investment
earnings thereof, shall be deposited into the Series 2009 Certificates of Obligation
Construction Fund and shall be used for the purposes set out in Section 3 of this
- 21 -
Ordinance, with any remainder to be deposited into the Series 2009 Certificates of
Obligation Interest and Sinking Fund.
24. Open Meeting. The meeting at which this Ordinance was adopted was open to the
public, and public notice of the time, place and purpose of said meeting, was given, all as required
by Chapter 551 of the Texas Government Code Annotated, Vernon's 1994, as amended, and such
notice as given is hereby authorized, approved, adopted and ratified.
25. Registrar. The form of agreement setting forth the duties of the Registrar is hereby
approved, and the appropriate officials of the City are hereby authorized to execute such agreement
for and on behalf of the City.
26. Official Statement. The Preliminary Official Statement and the Official Statement
prepared in the initial offering and sale of the Certificates have been and are hereby authorized,
approved and ratified as to form and content. The use of the Preliminary Official Statement and the
Official Statement in the reoffering of the Certificates by the Underwriter is hereby approved,
authorized and ratified. The proper officials of the City are hereby authorized to execute and
deliver a certificate pertaining to the Preliminary Official Statement and the Official Statement as
prescribed therein, dated as of the date of payment for and delivery of the Certificates.
27. Partial Invalidity. If any Section, paragraph, clause or provision of this Ordinance
shall for any reason be held to be invalid or unenforceable,the invalidity or unenforceability of such
Section, paragraph, clause or provision shall not affect any of the remaining provisions of this
Ordinance.
28. Related Matters. To satisfy in a timely manner all of the City's obligations under
this Ordinance, the Mayor, the City Clerk, the City Treasurer, and all other appropriate officers and
agents of the City are hereby authorized and directed to take all other actions that are reasonably
necessary to provide for issuance of the Certificates, including, without limitation, executing and
delivering on behalf of the City all certificates, consents, receipts, requests and other documents as
may be reasonably necessary to satisfy the City's obligations under this Ordinance and to direct the
application of funds of the City consistent with the provisions hereof.
29. No Personal Liability. No recourse shall be had for payment of the principal of or
premium, if any, or interest on Certificate, or for any claim based thereon, or under this Ordinance,
against any official or employee of the City or any person executing any Certificate.
30. Additional Obligations. The City undertakes and agrees for the benefit of the
holders of the Certificates to provide the following to the Municipal Securities Rulemaking Board
("MSRB"), in electronic format as prescribed by the MSRB, directly or through a designated agent,
on or before six months after the end of the City's fiscal year, which fiscal year presently ends on
September 30,
a. annual financial information (which may be unaudited) and operating data regarding
the City for fiscal years ending on or after January 1, 2009 which annual financial
information and operating data shall be of the type included in the following listed
sections contained in the Final Official Statement:
- 22 -
DEBT STATEMENT
TAX DATA
SELECTED FINANCIAL DATA
ADMINISTRATION OF THE CITY
Appendix B"
b. audited financial statements for the City for fiscal years ending on or after January 1,
2009, when available, if the City commissions an audit and it is completed by the
required time; provided that if audited statements are not commissioned or are not
available by the required time, the City will provide unaudited statements when and
if they become available.
C. in a timely manner, notice of any of the following events with respect to the
Certificates, if material within the meaning of the federal security laws to a decision
to purchase or sell Certificates:
i. Principal and interest payment delinquencies;
ii. Non-payment related defaults;
iii. Unscheduled draws on debt service reserves reflecting financial difficulties;
iv. Unscheduled draws on credit enhancements reflecting financial difficulties;
V. Substitution of credit or liquidity providers, or their failure to perform;
vi. Adverse tax opinions or events affecting the tax-exempt status of the
Certificates;
vii. Modifications to rights of Certificate holders;
viii. Calls;
ix. Defeasances;
X. Release, substitution or sale of property securing repayment of the
Certificates; and
xi. Rating changes.
d. in a timely manner, notice of a failure of the City to provide required annual
financial information and operating data, on or before six months after the end of the
City's fiscal year.
e. all documents provided to the MSRB shall be accompanied by identifying
information as prescribed by the MSRB.
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These undertakings and agreements are subject to appropriation of necessary funds and to
applicable legal restrictions, if any.
The accounting principles pursuant to which the City's financial statements are currently
prepared are generally accepted accounting principles set out by the Government Accounting
Standards Board, and, subject to changes in applicable law or regulations, such principles will be
applied in the future.
If the City changes its fiscal year, it will notify the MSRB of the change (and of the new
fiscal year end) prior to the next date by which the City otherwise would be required to provide
annual financial information.
The City's obligation to update information and to provide notices of material events shall
be limited to the agreements herein. The City shall not be obligated to provide other information
that may be relevant or material to a complete presentation of its financial results of operations,
condition, or prospects and shall not be obligated to update any information that is provided, except
as described herein. The City makes no representation or warranty concerning such information or
concerning its usefulness to a decision to invest in or sell Certificates at any future date. THE CITY
DISCLAIMS ANY CONTRACTUAL OR TORT LIABILITY FOR DAMAGES RESULTING IN
WHOLE OR IN PART FROM ANY BREACH, WHETHER NEGLIGENT OR WITHOUT
FAULT ON ITS PART, OF ITS CONTINUING DISCLOSURE AGREEMENT OR FROM ANY
STATEMENT MADE PURSUANT TO ITS AGREEMENT. HOLDERS OR BENEFICIAL
OWNERS OF CERTIFICATES MAY SEEK AS THEIR SOLE REMEDY A WRIT OF
MANDAMUS TO COMPEL THE CITY TO COMPLY WITH THIS AGREEMENT. No default
by the City with respect to its continuing disclosure agreement shall constitute a breach of or default
under this Ordinance for purposes of any other provision of this Ordinance. Nothing in this
paragraph is intended or shall act to disclaim, waive, or otherwise limit the duties of the City under
federal and state securities laws.
The City may amend its continuing disclosure obligations and agreement in this Section 30
to adapt to changed circumstances that arise from a change in legal requirements, a change in law,
or a change in the identity, nature, status or type of operations of the City, if the agreement, as
amended, would have permitted the Underwriter to purchase or sell the Certificates in compliance
with SEC Rule 15c2-12, taking into account any amendments or interpretations of such Rule to the
date of such amendment, as well as such changed circumstances, and either the holders of a
majority in aggregate principal amount of the outstanding Certificates consent or any person
unaffiliated with the City (such as nationally recognized bond counsel) determines the amendment
will not materially impair the interests of the holders and beneficial owners of the Certificates. The
City may also amend or repeal the obligations and agreement in this Section 30 if the SEC amends
or repeals the applicable provisions of Rule 15c2-12 or a court of final jurisdiction determines that
such provisions are invalid, and the City may amend the agreement in its discretion in any other
circumstance or manner, but in either case only to the extent that its right to do so would not
prevent the Underwriter from lawfully purchasing or reselling the Certificates in the primary
offering of the Certificates in compliance with Rule 15c2-12. If the City amends its agreement, it
must include with the next financial information and operating data provided in accordance with its
agreement an explanation, in narrative form, of the reasons for the amendment and of the impact of
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any change in the type of information and operating data so provided.
The City's continuing obligation to provide annual financial information and operating data
and notices of events will terminate if and when the City no longer remains an "obligated person"
(as such term is defined in SEC Rule 15C2-12)with respect to the Certificates.
31. Repealer. All orders, resolutions, and ordinances, and parts thereof inconsistent
herewith are hereby repealed to the extent of such inconsistency.
32. Effective Date. This Ordinance shall be in force and effect from and after its final
passage, and it is so ordered.
33. Amendment of Order.
(a) If and to the extent permitted by this Ordinance, the owners of the Series 2009
Certificates aggregating in the principal amount of 51% of the aggregate principal amount
of the outstanding Series 2009 Certificates shall have the right from time to time to
approve any amendment to this Ordinance which may be deemed necessary or desirable
by the City provided, however, that without the consent of the owners of all of the Series
2009 Certificates at the time outstanding, nothing herein contained shall permit or be
construed to permit the amendment of the terms and conditions in this Ordinance or in the
Certificates so as to:
(1) Make any change in the maturity of the outstanding Series 2009
Certificates;
(2) Reduce the rate of interest borne by any of the outstanding Series
2009 Certificates;
(3) Reduce the amount of the principal payable on the outstanding
Series 2009 Certificates;
(4) Modify the terms of payment of principal of or interest on the
outstanding Series 2009 Certificates, or impose any conditions with respect to
such payment;
(5) Affect the owners of less than all of the outstanding Series 2009
Certificates then outstanding;
(6) Change the percentage of the principal amount of outstanding
Series 2009 Certificates, necessary for consent to such amendment.
(b) If at any time the City shall desire to amend this Ordinance under this
Section, the City shall cause notice of the proposed amendment to be published in a
financial newspaper or journal published in The City of New York, New York, once
during each calendar week for at least two successive calendar weeks. Such notice shall
briefly set forth the nature of the proposed amendment and shall state that a copy thereof
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is on file at the principal office of the Paying Agent for inspection by all owners of Series
2009 Certificates. Such publication is not required, however, if notice in writing is given
to each owner of the outstanding Series 2009 Certificates. Not less than thirty (30) days'
notice of the proposed amendment shall also be given by the City to the Underwriter.
(c) Whenever at any time not less than thirty (30) days, and within one (1)
year, from the date of the publication of said notice or other service of written notice the
City shall receive an instrument or instruments executed by the owners of at least 51% in
aggregate principal amount of Series 2009 Certificates then outstanding, which
instrument or instruments shall refer to the proposed amendment described in said notice
and which specifically consent to and approve such amendment in substantially the form
of the copy thereof on file with the Paying Agent, the City Council may adopt the
amendatory resolution in substantially the same form.
(d) Upon adoption of any amendatory resolution pursuant to the provision of
this Section, this Ordinance shall be deemed to be amended in accordance with such
amendatory resolution, and the respective rights, duties and obligations under this
Ordinance of the City and all the owners of then outstanding Series 2009 Certificates
shall thereafter be determined, exercised and enforced hereunder, subject in all respect to
such amendments.
(e) Any consent given by the owner of outstanding Series 2009 Certificates,
pursuant to the provisions of this Section shall be irrevocable for a period of six months
from the date of the first publication of the notice provided for in this Section, and shall
be conclusive and binding upon all future owners of the same Series 2009 Certificates
during such period. Such consent may be revoked at any time after six months from the
date of the first publication of such notice by the owner who gave such consent, or by a
successor in title, by filing notice thereof with the Paying Agent and the City, but such
revocation shall not be effective if the owners of 51% in aggregate principal amount of
the then outstanding Series 2009 Certificates as in this Section defined have, prior to the
attempted revocation, consented to and approved the amendment.
(f) For the purpose of this Section, the fact of the owning of Series 2009
Certificates by any owner of Series 2009 Certificates and the amount and number of such
Series 2009 Certificates and the date of their owning same shall be determined by the
Registration Books of the Paying Agent/Registrar.
(g) The foregoing provisions of this Section notwithstanding, the City by
action of the City Council may amend this Ordinance for any one or more of the
following purposes:
(1) To add to the covenants and agreements of the City in this
Ordinance contained, other covenants and agreements thereafter to be observed,
grant additional rights or remedies to the owners of bonds or to surrender, restrict
or limit any right or power herein reserved to or conferred upon the City.
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(2) To make such provisions for the purpose of curing any ambiguity,
or curing, correcting or supplementing any defective provision contained in this
Ordinance, or in regard to clarifying matters or questions arising under this
Ordinance, as are necessary or desirable and not contrary to or inconsistent with
this Ordinance and which shall not adversely affect the interests of the owners of
the Series 2009 Certificates.
(3) To modify any of the provisions of this Ordinance in any other
respect whatever, provided that: (1) such modification shall be, and be expressed
to be, effective only after all Series 2009 Certificates outstanding at the date of the
adoption of such modification.
34. Qualified Tax-Exempt Obligations. The Certificates are hereby designated by the
City as "qualified tax-exempt obligations" for financial institutions under Section
265(b)(3)(13)(1)(III) of the Code. The City covenants to take such action as is within its authority
that will assure, and to refrain from taking any action that would adversely affect the treatment of
the Certificates as "qualified tax-exempt obligations" for financial institutions. The City represents
that the amount of the Certificates, when added to the amount of all other tax-exempt obligations
(not including obligations which are not taken into account for such purpose under Section
265(b)(3)(C)(ii)) issued or reasonably anticipated to be issued by or on behalf of the City during
2009 shall not exceed $30,000,000 and the City has not and will not designate more than
$30,000,000 in qualified tax-exempt obligations (including the Certificates) during 2009.
35. Provisions Relating to Bond Insurance. The purchase of bond insurance from
Insurer in accordance with the terms of a commitment for such insurance presented to and hereby
approved by the City is hereby authorized. All officials and representatives of the City are
authorized and directed to execute such documents and to do any and all things necessary or
desirable to obtain such insurance, and the printing on or attachments to the Certificates of an
appropriate legend regarding such insurance is hereby approved. Notwithstanding any provision
in this Ordinance to the contrary, as long as the Certificates Insurance Policy shall be in full force
and effect, the following provisions and terms shall be in effect and applicable:
A. Notices and Other Information.
1. Any notice that is required to be given to holders of the Obligations (the
"Certificateholders"), nationally recognized municipal securities information repositories
or state information depositories pursuant to Rule 15c2-12(b) (5) adopted by the
Securities and Exchange Commission or to the Registrar pursuant to this Certificate
Ordinance or any of the financing documents executed by the Issuer in connection with
the Obligations (hereinafter sometimes referred to as the "Financing Documents") shall
also be provided to Assured Guaranty Municipal Corp. (formerly known as Financial
Security Assurance, Inc.) New York, New York (the "Insurer"), simultaneously with the
sending of such notices. In addition, to the extent that the Issuer has entered into a
continuing disclosure agreement with respect to the Obligations, all information furnished
pursuant to such agreement shall also be provided to the Insurer, simultaneously with the
furnishing of such information. All notices required to be given to the Insurer shall be in
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writing and shall be sent by registered or certified mail addressed to it at 31 West 52°a
Street, New York, New York 10019, Attention: General Counsel, with a copy to it,
Attention: Risk Management Department— Public Finance Surveillance.
2. The Insurer shall have the right to receive such additional information as it
may reasonably request.
3. The Issuer will permit the Insurer to discuss the affairs, finances and
accounts of the Issuer or any information the Insurer may reasonably request regarding
the security for the Obligations with appropriate officers of the Issuer, and will use best
efforts to enable the Insurer to have access to the facilities, books and records of the
Issuer on any business day upon reasonable prior notice.
4. The Registrar shall notify the Insurer of any failure of the Issuer to provide
notices, certificates and other information under the Documentation.
B. Defeasance. In the event that the principal and/or interest due on the Obligations
shall be paid by the Insurer pursuant to the Policy, the Obligations shall remain outstanding for
all purposes, not be defeased or otherwise satisfied and not be considered paid by the Issuer, and
the assignment and pledge of the trust estate and all covenants, agreements and other obligations
of the Issuer to the registered owners shall continue to exist and shall run to the benefit of the
Insurer, and the Insurer shall be subrogated to the rights of such registered owners including,
without limitation, any rights that such owners may have in respect of securities law violations
arising from the offer and sale of the Obligations.
In addition to any other applicable requirements under this Ordinance or applicable law, if
the Issuer intends to defease the Obligations, and the Insurer will require the following items:
1. An opinion of counsel that the defeasance will not adversely impact the
exclusion from gross income for federal income tax purposes of interest on
the Obligations or refunded bonds.
2. An escrow agreement and an opinion of counsel regarding the validity and
enforceability of the escrow agreement.
3. The escrow agreement shall provide that:
a. Any substitution of securities shall require verification by an
independent certified public accountant and the prior written
consent of the Insurer.
b. The Issuer will not exercise any optional redemption of Obligations
secured by the escrow agreement or any other redemption other
than mandatory sinking fund redemptions unless (i) the right to
make any such redemption has been expressly reserved in the
escrow agreement and such reservation has been disclosed in detail
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in the official statement for the refunding bonds, and (ii) as a
condition of any such redemption there shall be provided to the
Insurer a verification of an independent certified public accountant
as to the sufficiency of escrow receipts without reinvestment to
meet the escrow requirements remaining following such
redemption.
C. The Issuer shall not amend the escrow agreement or enter into a
forward purchase agreement or other agreement with respect to
rights in the escrow without the prior written consent of the
Insurer.
C. Re_isg tray.
1. The Insurer shall receive prior written notice of any name change of the
Registrar or the removal, resignation or termination of the Registrar.
2. No removal, resignation or termination of the Registrar shall take effect
until a successor, acceptable to the Insurer, shall be appointed.
3. The Registrar may be removed at any time, at the request of the Insurer,
for any breach of its obligations under the financing documents.
D. Amendments and Supplements. With respect to amendments or supplements to
this Ordinance or any of the Financing Documents, which do not require the consent of the
Certificateholders, the Insurer must be given notice of any such amendments or supplements.
With respect to amendments or supplements to this Ordinance or any of the Financing
Documents, which require the consent of the Certificateholders, the Insurer's prior written
consent is required. Copies of any amendments or supplements to this Ordinance or any
Financing Document which are consented to by the Insurer shall be sent to the rating agencies
that have assigned a rating to the Obligations. Notwithstanding any other provision of this
Ordinance, in determining whether the rights of Certificateholders will be adversely affected by
any action taken pursuant to the terms and provisions thereof, the Registrar shall consider the
effect on the Certificateholders as if there were no Policy.
E. The Insurer as Third Party Beneficiary. To the extent this Ordinance or any
financing document executed by the Issuer in connection herewith confers upon or give or grant
to the Insurer any right, remedy or claim under or by reason of this Ordinance or any financing
document executed by the Issuer in connection herewith, the Insurer is explicitly recognized as
being a third party beneficiary hereunder and thereunder and may enforce any such right, remedy
or claim conferred, given or granted hereunder or thereunder.
F. Control Rights. The Insurer shall be deemed to be the holder of all of the
Obligations for purposes of(a) exercising all remedies and directing the Registrar to take actions
or for any other purposes following an Event of Default (as defined in this Ordinance), and (b)
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granting any consent, direction or approval or taking any action permitted by or required under
this Ordinance to be granted or taken by the holders of such Obligations.
Anything in this Ordinance to the contrary notwithstanding, upon the occurrence and
continuance of an event of default as defined herein, the Insurer shall be entitled to control and
direct the enforcement of all rights and remedies granted to the Certificateholders or the Registrar
for the benefit of the Certificateholders under this Ordinance.
G. Consent Rights of the Insurer.
1. Consent of the Insurer. Any provision of this Ordinance expressly
recognizing or granting rights in or to the Insurer may not be amended in
any manner that affects the rights of the Insurer hereunder without the
prior written consent of the Insurer.
2. Consent of the Insurer in Addition to Certificateholder Consent.
Wherever this Ordinance requires the consent of Certificateholders, the
Insurer's consent shall also be required.
3. Consent of the Insurer in the Event of Insolvency. Any reorganization or
liquidation plan with respect to the Issuer must be acceptable to the
Insurer. In the event of any reorganization or liquidation, the Insurer shall
have the right to vote on behalf of all Certificateholders who hold
Obligations guaranteed by the Insurer, absent a default by the Insurer
under the Policy.
4. Consent of the Insurer Upon Default. Upon the occurrence of an event of
default as defined herein, the Registrar may, with the consent of the
Insurer, and shall at the direction of the Insurer or the Certificateholders
with the consent of the Insurer, by written notice to the Issuer and the
Insurer, declare the principal of the Obligations to be immediately due and
payable, whereupon that portion of the principal of the Obligations thereby
coming due and the interest thereon accrued to the date of payment shall,
without further action, become and be immediately due and payable,
anything in this Ordinance or the Obligations to the contrary
notwithstanding.
H. Payment Procedure Under the Policy.
1. At least two (2) Business Days prior to each payment date on the
Obligations, the Registrar, will determine whether there will be sufficient
funds to pay all principal of and interest on the Obligations due on the
related payment date and shall immediately notify the Insurer or its
designee on the same Business Day by telephone or electronic mail,
confirmed in writing by registered or certified mail, of the amount of any
deficiency. Such notice shall specify the amount of the anticipated
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deficiency, the Obligations to which such deficiency is applicable and
whether such Obligations will be deficient as to principal or interest or
both. If the deficiency is made up in whole or in part prior to or on the
payment date, the Registrar shall so notify the Insurer or its designee.
2. The Registrar, shall after giving notice to the Insurer as provided above,
make available to the Insurer and, at the Insurer's direction, to any Fiscal
Agent, the registration books of the Issuer maintained by the Registrar and
all records relating to the funds maintained under this Ordinance or any
financing document executed by the Issuer in connection herewith.
3. The Registrar shall provide the Insurer and any Fiscal Agent with a list of
registered owners of Obligations entitled to receive principal or interest
payments from the Insurer under the terms of the Policy, and shall make
arrangements with the Insurer, the Fiscal Agent or another designee of the
Insurer to (1) mail checks or drafts to the registered owners of Obligations
entitled to receive full or partial interest payments from the Insurer and (ii)
pay principal upon Obligations surrendered to the Insurer, the Fiscal Agent
or another designee of the Insurer by the registered owners of Obligations
entitled to receive full or partial principal payments from the Insurer.
4. The Registrar, shall, at the time it provides notice to the Insurer of any
deficiency pursuant to clause 1. above, notify registered owners of
Obligations entitled to receive the payment of principal or interest thereon
from the Insurer (i) as to such deficiency and its entitlement to receive
principal or interest, as applicable, (ii) that the Insurer will remit to them
all or a part of the interest payments due on the related payment date upon
proof of its entitlement thereto and delivery to the Insurer or any Fiscal
Agent, in form satisfactory to the Insurer, of an appropriate assignment of
the registered owner's right to payment, (iii) that, if they are entitled to
receive partial payment of principal from the Insurer, they must surrender
the related Obligations for payment first to the Registrar, which will note
on such Obligations the portion of the principal paid by the Registrar and
second to the Insurer or its designee, together with the an appropriate
assignment, in form satisfactory to the Insurer, to permit ownership of
such Obligations to be registered in the name of the Insurer, which will
then pay the unpaid portion of principal, and (iv) that, if they are entitled
to receive full payment of principal from the Insurer, they must surrender
the related Obligations for payment to the Insurer or its designee, rather
than the Registrar, together with the an appropriate assignment, in form
satisfactory to the Insurer, to permit ownership of such Obligations to be
registered in the name of the Insurer.
5. In addition, if the Registrar has notice that any holder of the Obligations
has been required to disgorge payments of principal or interest on the
Obligations previously Due for Payment pursuant to a final non-appealable
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order by a court of competent jurisdiction that such payment constitutes an
avoidable preference to such holder within the meaning of any applicable
bankruptcy laws, then the Registrar shall notify the Insurer or its designee
of such fact by telephone or electronic notice, confirmed in writing by
registered or certified mail.
6. The Registrar will be hereby irrevocably designated, appointed, directed
and authorized to act as attorney-in-fact for holders of the Obligations as
follows:
a. If and to the extent there is a deficiency in amounts required to pay
interest on the Obligations, the Registrar shall (a) execute and deliver
to the Insurer, in form satisfactory to the Insurer, an instrument
appointing the Insurer as agent for such holders in any legal
proceeding related to the payment of such interest and an assignment
to the Insurer of the claims for interest to which such deficiency relates
and which are paid by the Insurer, (b) receive as designee of the
respective holders (and not as Registrar) in accordance with the tenor
of the Policy payment from the Insurer with respect to the claims for
interest so assigned, and (c) disburse the same to such respective
holders; and
b. If and to the extent of a deficiency in amounts required to pay principal
of the Obligations, the Registrar shall (a) execute and deliver to the
Insurer, in form satisfactory to the Insurer, an instrument appointing
the Insurer as agent for such holder in any legal proceeding related to
the payment of such principal and an assignment to the Insurer of the
Obligation surrendered to the Insurer in an amount equal to the
principal amount thereof as has not previously been paid or for which
moneys are not held by the Registrar and available for such payment
(but such assignment shall be delivered only if payment from the
Insurer is received), (b) receive as designee of the respective holders
(and not as Registrar) in accordance with the tenor of the Policy
payment therefore from the Insurer, and (c) disburse the same to such
holders.
7. Payments with respect to claims for interest on and principal of
Obligations disbursed by the Registrar from proceeds of the Policy shall
not be considered to discharge the obligation of the Issuer with respect to
such Obligations, and such Obligations shall remain outstanding for all
purposes, shall not be defeased or otherwise satisfied and shall not be
considered paid by the Issuer, and the Insurer shall become the owner of
such unpaid Obligation and claims for the interest in accordance with the
tenor of the assignment made to it under the provisions of this subsection
or otherwise; and the assignment and pledge of the trust estate and all
covenants, agreements and other obligations of the Issuer to the registered
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owners shall continue to exist and shall run to the benefit of the Insurer,
and the Insurer shall be subrogated to the rights of such registered owners
including, without limitation, any rights that such owners may have in
respect of securities law violations arising from the offer and sale of the
Obligations.
8. Irrespective of whether any such assignment is executed and delivered, the
Issuer and the Registrar hereby agree for the benefit of the Insurer that:
a. they recognize that to the extent the Insurer makes payments directly
or indirectly (e.g., by paying through the Registrar), on account of
principal of or interest on the Obligations, the Insurer will be
subrogated to the rights of such holders to receive the amount of such
principal and interest from the Issuer, with interest thereon as provided
and solely from the sources stated in the financing documents and the
Obligations; and
b. they will accordingly pay to the Insurer the amount of such principal
and interest, with interest thereon as provided in the financing
documents and the Obligations, but only from the sources and in the
manner provided herein for the payment of principal of and interest on
the Obligations to holders, and will otherwise treat the Insurer as the
owner of such rights to the amount of such principal and interest.
9. The Insurer shall be entitled to pay principal or interest on the Obligations
that shall become Due for Payment but shall be unpaid by reason of
Nonpayment by the Issuer (as such terms are defined in the Policy) and any
amounts due on the Obligations as a result of acceleration of the maturity
thereof in accordance with this agreement, whether or not the Insurer has
received a Notice (as defined in the Policy) of Nonpayment or a claim upon
the Policy.
10. In addition, the Insurer shall to the extent it makes any payment of
principal or interest on the Obligations become subrogated to the rights of
the recipients of such payments in accordance with the terms of the Policy,
and to evidence such subrogation (i) in the case of claims for interest, the
Registrar shall note the Insurer's rights as subrogee on the registration
books of the Issuer maintained by the Registrar, upon receipt of proof of
payment of interest thereon to the registered holders of the Obligations, and
(ii) in the case of claims for principal, the Registrar, if any, shall not the
Insurer's rights as subrogee on the registration books of the Issuer
maintained by the Registrar, upon surrender of the Obligations together
with receipt of proof of payment of principal thereof.
11. The Issuer hereby agrees to pay or reimburse the Insurer, to the extent
permitted by law and subject to annual appropriation by the Issuer, (A) for
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all amounts paid by the Insurer under the terms of the Policy, and (B) any
and all charges, fees, costs and expenses which the Insurer may reasonably
pay or incur, including, but not limited to, fees and expenses of attorneys,
accountants, consultants and auditors and reasonable costs of
investigations, in connection with (i) any accounts established to facilitate
payments under the Policy, (ii) the administration, enforcement, defense or
preservation of any rights in respect of the trust agreement or any other
financing document including defending, monitoring or participating in any
litigation or proceeding (including any bankruptcy proceeding in respect of
the Issuer or any affiliate thereof) relating to this agreement or any other
Financing Document, any party to this agreement or any other Financing
Document or the transaction contemplated by the Financing Documents,
(iii) the foreclosure against, sale or other disposition of any collateral
securing any obligations under this agreement or any other Financing
Document, or the pursuit of any remedies under this agreement or any
other Financing Document, to the extent such costs and expenses are not
recovered from such foreclosure, sale or other disposition, or (iv) any
amendment, waiver or other action with respect to, or related to, this
agreement or any other Financing Document whether or not executed or
completed; costs and expenses shall include a reasonable allocation of
compensation and overhead attributable to time of employees of the Insurer
spent in connection with the actions described in clauses (ii) - (iv) above.
In addition, the Insurer reserves the right to charge a reasonable fee as a
condition to executing any amendment, waiver or consent proposed in
respect of this agreement or any other Financing Document.
12. In addition to any and all rights of reimbursement, subrogation and any
other rights pursuant hereto or under law or in equity, the Issuer agrees, to
the extent permitted by law, to pay or reimburse the Insurer any and all
charges, fees, costs, claims, losses, liabilities (including penalties),
judgments, demands, damages, and expenses which the Insurer or its
officers, directors, shareholders, employees, agents and each Person, if any,
who controls the Insurer within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended, may reasonably pay or incur,
including, but not limited to, fees and expenses of attorneys, accountants,
consultants and auditors and reasonable costs of investigations, of any
nature in connection with, in respect of or relating to the transactions
contemplated by this agreement or any other financing document by reason
of:
a. any omission or action (other than of or by the Insurer) in
connection with the offering, issuance, sale, remarketing or
delivery of the Obligations;
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b. the negligence, bad faith, willful misconduct, misfeasance,
malfeasance or theft committed by any director, officer, employee
or agent of the Issuer in connection with any transaction arising
from or relating to this agreement or any other financing document;
C. the violation by the Issuer of any law, rule or regulation, or any
judgment, order or decree applicable to it;
d. the breach by the Issuer of any representation, warranty or covenant
under this agreement or any other financing document or the
occurrence, in respect of the Issuer, under this agreement or any
other financing document of any "event of default" or any event
which, with the giving of notice or lapse of time or both, would
constitute any "event of default"; or
e. any untrue statement or alleged untrue statement of a material fact
contained in any official statement, if any, or any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such claims arise out of or are based
upon any untrue statement or omission in information included in
an official statement, if any, and furnished by the Insurer in writing
expressly for use therein.
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i
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PASSED AND APPROVED this I st day of December, 2009.
Pi.C -4,
MAYOR
THE CITY OF BEAUMONT,TEXAS
ATTEST:
CITY CLERK
THE CITY OF BEAUMONT,TEXAS
"Sell
WOO w
t
i
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EXHIBIT A
The City of Beaumont, Texas
Certificates of Obligation, Series 2009
$29,950,000
Interest Accrues From: December 1, 2009
MATURITY SCHEDULE
Maturity Principal
March 1 Amount Interest Rate Yield
2011 $ 95,000 2.000% 0.950%
2012 $ 100,000 2.000% 1.250%
2013 $ 100,000 2.000% 1.500%
2014 $ 100,000 2.500% 2.000%
2015 $ 710,000 2.250% 2.240%
2016 $ 725,000 2.500% 2.530%
2017 $ 745,000 2.750% 2.790%
2018 $ 765,000 3.000% 3.040%
2019 $1,450,000 3.250% 3.240%
2020 $1,495,000 3.500% 3.540%
2021 $1,555,000 4.000% 3.730%
2022 $1,620,000 4.000% 3.820%
2023 $1,685,000 4.000% 3.910%
2024 $1,755,000 4.000% 4.010%
2025 $1,825,000 4.000% 4.090%
2026 $1,415,000 4.100% 4.190%
2027 $1,475,000 4.125% 4.270%
2028 $1,545,000 5.000% 4.230%
2029 $1,625,000 5.000% 4.280%
$9,165,000 4.700% Term Certificates due March 1, 2034 Yield 4.810%
The Certificates maturing on or after March 1, 2020, are subject to optional redemption, in whole
or in part, on March 1, 2019, or any date thereafter, at a price equal to the principal amount
thereof, plus accrued interest to the date of redemption.
The Term Certificates are subject to mandatory sinking fund redemption as described in the
Ordinance.
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